Gonzalez v. State of Oregon

Decision Date27 April 2006
Docket Number(CC 01-2018; CA A115934; SC S51309).
Citation340 Or. 452,134 P.3d 955
PartiesJose Luis Vega GONZALEZ, Respondent on Review, v. STATE of Oregon, Petitioner on Review.
CourtOregon Supreme Court

Brendan C. Dunn, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

James N. Varner, Newberg, argued the cause and filed the brief for respondent on review.

Marc Sussman, Portland, filed the brief for amici curiae Miles McLeod, American Association of Immigration Lawyers, and Oregon Criminal Defense Lawyers Association.

Before CARSON, Chief Justice,** and GILLETTE, DURHAM, RIGGS, De MUNIZ,*** BALMER, and KISTLER, Justices.

KISTLER, J.

The question in this case is whether petitioner's defense counsel provided constitutionally adequate assistance when he advised petitioner that the federal government may deport him if he pleaded guilty. The Court of Appeals held that counsel failed to provide adequate assistance because he did not tell petitioner that, unless the Attorney General or his designee chose not to pursue deportation proceedings, petitioner would be deported. Gonzalez v. State of Oregon, 191 Or.App. 587, 593-94, 83 P.3d 921 (2004). We reverse the Court of Appeals decision.

Petitioner is a citizen of Mexico. He entered the United States illegally in 1987 and has lived in Oregon since 1989. In 1995 petitioner received a work permit from the Immigration and Naturalization Service (INS)1 and began an effort to become a legal resident of this country. Towards that end, petitioner retained an immigration lawyer in California to represent him in a then-pending INS hearing.

Before the INS hearing occurred, the State of Oregon charged petitioner with five counts of possessing, manufacturing, and delivering a controlled substance. The state also sought to forfeit approximately $70,000 that petitioner held in his bank account. In March 2000, petitioner retained a lawyer to represent him on the criminal charges. Petitioner faced a substantial period of incarceration if the state proved the charged crimes, and his defense lawyer spent much of his time negotiating a plea agreement with the district attorney's office. Eventually, the district attorney's office agreed that, if petitioner would plead guilty to one count of possession and one count of distribution, the state would recommend that the trial court sentence petitioner to 90 days in jail with credit for time served and 36 months' probation.

In discussing the plea offer with petitioner, his trial counsel reviewed the constitutional rights that petitioner would give up if he pleaded guilty. Counsel also advised petitioner of the maximum sentence and fine that the trial court could impose if he were found guilty of the charged crimes. Finally, counsel advised him that pleading guilty "may cause [his] deportation" from the United States, as well as denial of naturalization and future readmission to the United States. Petitioner did not ask his counsel to predict the likelihood of deportation with greater specificity, and his counsel did not do so. Rather, in advising petitioner about the risks of deportation, his counsel followed the terms of a preprinted plea petition.

Relying on his counsel's advice, petitioner pleaded guilty on February 1, 2001, to one count of possessing and one count of distributing a controlled substance. The state dismissed the other three charges, and the trial court imposed the recommended sentence. After petitioner had served his 90-day jail term, the INS initiated deportation proceedings. Petitioner then filed a post-conviction petition, alleging that his counsel's failure to tell him that he would be deported if he pleaded guilty violated his right to the adequate assistance of counsel guaranteed by the state constitution.2 The post-conviction court agreed with petitioner, and the Court of Appeals affirmed.

The Court of Appeals noted that, under Lyons v. Pearce, 298 Or. 554, 694 P.2d 969 (1985), defense counsel have a state constitutional obligation to advise clients who are not United States citizens and who are considering a guilty plea of the risks of deportation. Gonzalez, 191 Or.App. at 591-92, 83 P.3d 921. The Court of Appeals recognized that Lyons had held that counsel satisfied that obligation by telling their clients that a conviction "may result" in deportation but concluded that the likelihood of deportation is greater now than when this court decided Lyons. Id. at 591-94, 83 P.3d 921. Accordingly, the Court of Appeals held that

"petitioner's trial counsel was obligated to tell petitioner that he was pleading guilty to an aggravated felony and that, unless the United States Attorney General or his designee chose not to pursue deportation proceedings against him, he would be deported as a result of his guilty plea."

Id. at 594, 83 P.3d 921. Because petitioner's counsel had told him only that a plea "may result" in deportation, the Court of Appeals held that the petitioner's counsel had not provided constitutionally adequate assistance. It therefore affirmed the judgment of the post-conviction court.

On review, the state acknowledges that one of the charges to which petitioner pleaded was an "aggravated felony."3 It argues, however, that counsel's use of "may" is still accurate because the Attorney General retains inherent prosecutorial discretion not to initiate deportation proceedings for persons convicted of an aggravated felony, see Carranza v. INS, 277 F.3d 65, 72 (1st Cir.2002) (recognizing proposition), and that, even when the Attorney General chooses to initiate deportation proceedings, exceptions to deportation remain available, see 8 USC § 1231(b)(3)(A) (withholding of removal); Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir.2003) (recognizing that person convicted of aggravated felony can avoid deportation when deportation would be contrary to Convention Against Torture).

In his brief on the merits, petitioner does not dispute that the Attorney General may exercise his inherent discretion not to initiate deportation proceedings and that exceptions remain available even for persons convicted of aggravated felonies.4 He contends, however, that his defense counsel should have identified each exception to deportation that might apply to him and that his counsel then should have explained the likelihood that each exception would apply. Alternatively, petitioner argues that his counsel should have given him the more general advice that the Court of Appeals stated: Unless the Attorney General chose not to deport him, he would be deported. Before considering those arguments, we first set out the principles that guide our inquiry.

In pleading guilty, a defendant admits in open court that he or she committed the acts charged in the indictment, and that admission forms the basis for determining his or her guilt. See State v. Harris, 339 Or. 157, 172-73, 118 P.3d 236 (2005) (recognizing proposition). Often a defendant pleads guilty as part of a plea bargain; that is, in return for the defendant's admission of guilt on some of or all the charged offenses, the state agrees either to dismiss some of the charges or to recommend a reduced sentence. "For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated." Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Counsel plays an integral role in guiding his or her client through this process. Of foremost importance is counsel's role in advising his or her client of the likelihood of conviction if the client chooses to go to trial. See id. at 756, 90 S.Ct. 1463 (recognizing significance of that factor). That consideration often will be pivotal in deciding whether to accept a plea offer with the prospect of a reduced sentence or whether to require the state to prove its case with the attendant risk of a more onerous sanction. Because the potential penalty is also important to an informed plea decision, counsel must advise a defendant of the direct consequences of a criminal conviction — that is, the maximum possible sentence that he or she could receive if convicted, as well as the "possibility of a minimum sentence." See Hartzog v. Keeney, 304 Or. 57, 64, 742 P.2d 600 (1987) (minimum sentence); cf. ORS 135.385(2)(b)(maximum sentence); United States v. Day, 969 F.2d 39, 44 (3d Cir.1992) (recognizing that, for defendant contemplating guilty plea, knowledge of comparative sentence exposure often will be crucial).

A criminal conviction can result in collateral consequences as well as direct ones. A conviction can lead, among other things, to deportation, the loss of a license to practice a profession, the termination of parental rights, and the loss of the right to receive federal benefits. See Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699-700 (2002). As a general rule, the courts have not required defense counsel to advise their clients of the collateral consequences of a conviction as a matter of providing constitutionally adequate assistance. Id. at 700-01. Oregon, however, has joined a minority of states that require, as a matter of state constitutional law, that defense counsel advise clients who are not United States citizens that a criminal conviction "may result" in deportation. See Lyons, 298 Or. at 557, 567, 694 P.2d 969 (so holding); cf. ORS 135.385(2)(d) (requiring trial courts to tell noncitizen defendants who plead guilty that "conviction of a crime may result, under the laws of the United States,...

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  • Verduzco v. State
    • United States
    • Oregon Supreme Court
    • July 30, 2015
    ...advice about the immigration consequences of his guilty plea satisfied state constitutional standards. See Gonzalez v. State of Oregon, 340 Or. 452, 459, 134 P.3d 955 (2006) (under Article I, section 11, it is sufficient to advise clients that a state conviction “may result” in deportation)......
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    ...although this court would subsequently hold that the Oregon Constitution did not impose such a requirement, in Gonzalez v. State of Oregon , 340 Or. 452, 134 P.3d 955 (2006).We observed, however, that although no Oregon decision had addressed the issue, "the ‘almost unanimou[s]’ rule before......
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    ...PCR, but reversed the determination by the Court of Appeals that the facts warranted even broader relief. In Gonzalez v. State of Oregon, 340 Or. 452, 134 P.3d 955 (2006), this court reversed a determination by the trial court and the Court of Appeals that the petitioner was entitled to pos......
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1 books & journal articles
  • Padilla v. Kentucky: sound and fury, or transformative impact.
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