Garcia v. State

• Decision Date: 23 December 2013
• Docket Number: No. M2012–01058–SC–R11–PC.,M2012–01058–SC–R11–PC.
• Parties: Juan Alberto Blanco GARCIA v. STATE of Tennessee.
• Court: Tennessee Supreme Court

425 S.W.3d 248

Juan Alberto Blanco GARCIA

v.STATE of Tennessee.

No. M2012–01058–SC–R11–PC.

Supreme Court of Tennessee,

at Nashville.

Oct. 1, 2013 Session Heard at Murfreesboro.¹

Dec. 23, 2013.

Matt Maniatis, Nashville, Tennessee, for the appellant, Juan Alberto Blanco Garcia.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; James E. Gaylord, Assistant Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas J. Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

In this post-conviction proceeding the petitioner alleged ineffective assistance of counsel based upon trial counsel's failure to advise him of the immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The petitioner also alleged that his plea was involuntary and unknowing because the trial court failed to comply with Tennessee Rule of Criminal Procedure 11(b)(1)(J). The post-conviction trial court denied post-conviction relief, and the Court of Criminal Appeals affirmed. We conclude that the record fully supports the post-conviction court's findings that trial counsel advised the petitioner he would be deported upon pleading guilty and that his guilty plea could have an adverse effect upon his ability to return legally to the United States. We also agree with the Court of Criminal Appeals that the trial court's failure to comply with Rule 11(b)(1)(J) was harmless beyond a reasonable doubt because the proof shows that the petitioner was aware his guilty plea would result in his deportation and could adversely affect his ability to return legally to the United States. Accordingly, we affirm the judgment of the Court of Criminal Appeals upholding the post-conviction court's denial of post-conviction relief.

I. Factual and Procedural History

On January 14, 2011, the petitioner, Juan Alberto Blanco Garcia, was charged in a multi-count indictment with six criminal offenses—two felonies and four misdemeanors. These charges were based on events that occurred in 2008 involving a seven-year-old girl and her three-year-old brother. The petitioner, an alien unlawfully within the United States, absconded when the police began investigating the charges in 2008, and he was not apprehended until 2011. The most serious criminal charge the petitioner faced was the class B felony of aggravated sexual battery, which carried a potential prison term of eight to twelve years. The remaining five charges were for child abuse and neglect and included one class E felony, which carried a potential prison term of one to six years, and four class A misdemeanors, with potential jail terms of eleven months and twenty-nine days.²Counsel was appointed to represent the petitioner on the criminal charges. In the meantime, United States Immigration and Customs Enforcement (“ICE”) issued an immigration detainer for the petitioner. An immigration detainer is a notice that ICE issues to a local law enforcement agency (“LEA”), which notifies “the LEA that ICE intends to assume custody of an alien in the LEA's custody once the alien is no longer subject to the LEA's detention,” requests “information from an LEA about an alien's impending release so ICE may assume custody before the alien is released from the LEA's custody,” and requests “that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.” http:// www. ice. gov/ news/ library/ factsheets/ detainer- faqs. htm (last visited Dec. 19, 2013).

On August 24, 2011, the petitioner pleaded guilty to the class E felony charge of child neglect of a child under the age of six years and to one of the four class A misdemeanor charges, specifically, child abuse of a child over six years of age. The remaining four charges were dismissed. The petitioner received a six-year sentence on the class E felony conviction, with the sentence suspended to probation on the condition that the petitioner have no contact with the female victim or her adoptive family. For the class A misdemeanor conviction, the petitioner received a consecutive sentence of eleven months and twenty-nine days at 75% and was credited with the time he had served in the Warren County Jail since December 9, 2010.

At the guilty plea submission hearing, the prosecution recited the following factual basis for the plea:

The facts in this case are that on April 8, 2008, a [seven-]year[-]old girl was found at one of the elementary schools with a note indicating that she wanted to kill herself. She was taken to the school counselor[,] and she began telling the counselor that she had been subjected to physical abuse at the home in which she resided. She was then brought to the Child Advocacy Center where she was interviewed. She stated that [the petitioner] had on occasion whipped her with a television cable cord at her residence ... in Warren County. She lived there with her maternal grandmother and [the petitioner] was her maternal grandmother's boyfriend at that time. She had strike marks on her back and buttocks at the time she was interviewed on October 8[th] that were consistent with being whipped with the cord. She took the law enforcement officers to this home ... and pointed out the cord which was hanging on a cabinet in the house. She also indicated that her brother[,] who was [three] years old[,] and she were residing there in a closet about 5' x 3' and that was where they slept. [She said that] [t]hey didn't have a bed or a room in the home and that [her brother] had been similarly disciplined.

On that day efforts were made to locate [the petitioner] and discuss the matter with him. He left his residence ... on that day and was not apprehended until two and a half years later.

Before accepting the plea, the trial court addressed the petitioner in open court, with the aid of an interpreter. In response to the trial court's questioning, the petitioner confirmed that he had reviewed the written plea agreement and waiver of rights form with trial counsel and an interpreter and stated that he understood the documents, the charges against him, the minimum and maximum sentences that would apply to each charge were he convicted, and the rights he was waiving by pleading guilty. The petitioner responded “yes” when asked whether his guilty plea was made freely and voluntarily. The petitioner answered “no” when asked whether anyone had promised him anything or threatened him in anyway to convince him to plead guilty. Finally, when asked whether trial counsel had “tried to answer [his] questions for [him] and advise [him] about what [his] rights and options are and what may or may not happen if [he] did have a jury trial,” the petitioner responded, “Yes. Each and every one.” The trial court failed, however, to advise the petitioner of the immigration consequences of the plea or to inquire whether trial counsel had advised the defendant of “the immigration consequences of the plea,” as required by Tennessee Rule of Criminal Procedure 11(b)(1)(J), which became effective July 1, 2011, less than two months before the petitioner's plea submission hearing.

On February 16, 2012, about six months after pleading guilty, the petitioner filed the petition for post-conviction relief from which this appeal arises. The petitioner alleged that his attorney was ineffective and his plea involuntary and unknowing because trial counsel and the trial court failed to inform him of the immigration consequences of his plea. The petitioner submitted an affidavit along with the petition, dated February 2, 2012, stating that he would “not be able to attend any hearings” on the petition because he was “incarcerated in Brooks County Detention Center in Falfarrias, Texas.” The petitioner further stated that, although trial counsel “did a good job” and “helped” him “as much as she could,” she “never informed [him] of a possible legal or immigration problem in the future if [he] took the deal.” The petitioner stated that had he known his convictions “would bar [him] for life from applying for immigration benefits and from legalizing [himself],” he “would never have accepted their deal and would have taken it to the grand jury for trial.”

At the time of the April 25, 2012 hearing on the post-conviction petition, the petitioner remained in federal custody in Texas. The record on appeal includes nothing to indicate that the petitioner sought either to attend and provide in-person testimony at the hearing or to present testimony by any other means.

However, Christa Lynn Blanco (“Mrs. Blanco”), a United States citizen and the petitioner's wife by the time of the hearing, testified on the petitioner's behalf.³ Mrs. Blanco, who was dating the petitioner at the time of the guilty plea, remembered speaking with trial counsel on several occasionsbefore the petitioner pleaded guilty. According to Mrs. Blanco, trial counsel was not sure whether the petitioner would be deported, stated only that the petitioner “may or may not be deported,” and advised that she did not know “what immigration would do other than after the trial there was a 72 hour period that ICE ... would have to be able to pick [the petitioner] up but that [counsel] couldn't state whether they ... would or would not.” Mrs. Blanco stated that had she and the petitioner been aware the plea would render the petitioner “inadmissible into the United States, that plea would have never been accepted” and they “would have taken it to trial”; however, the post-conviction court sustained an objection to Mrs. Blanco's testimony about what the petitioner would or would not have done.

Mrs....