In re Garcia-Mendoza

• Decision Date: 28 January 2021
• Docket Number: No. 98026-8,98026-8
• Court: Washington Supreme Court
• Parties: In the MATTER OF the Personal Restraint of Alejandro GARCIA-MENDOZA, Petitioner.

196 Wash.2d 836

479 P.3d 674

In the MATTER OF the Personal Restraint of Alejandro GARCIA-MENDOZA, Petitioner.

No. 98026-8

Supreme Court of Washington.

Argued: October 27, 2020

Filed: January 28, 2021

Teymur Gasanovich Askerov, Black & Askerov, PLLC, 705 2nd Ave. Ste. 1111, Seattle, WA, 98104-1720, for Petitioner.

Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent.

Evelyn Cruz Sroufe, Thomas W. Hillier II, Perkins Coie LLP, Carolyn Suzanne Gilbert, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Mark Bruns Middaugh, Attorney at Law 600 University St. Ste. 3020 Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Evelyn Cruz Sroufe, Thomas W. Hillier II, Perkins Coie LLP, Carolyn Suzanne Gilbert, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Enoka Herat, ACLU-WA, 901 5th Ave. Ste. 630, Seattle, WA, 98164-2086, Nancy Lynn Talner, ACLU-WA, P.O. Box 2728 Seattle, WA, 98111-2728, for Amicus Curiae on behalf of Aclu of Washington.

Evelyn Cruz Sroufe, Thomas W. Hillier II, Perkins Coie LLP, Carolyn Suzanne Gilbert, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Ann E. Benson, WA Defenders Assoc., 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.

Evelyn Cruz Sroufe, Thomas W. Hillier II, Perkins Coie LLP, Carolyn Suzanne Gilbert, Attorney at Law, 1201 3rd Ave. Ste. 4900, Seattle, WA, 98101-3095, Tim Henry Warden-Hertz, Northwest Immigrant Rights Project, 1119 Pacific Ave. Ste. 1400, Tacoma, WA, 98402-4324, for Amicus Curiae on behalf of Northwest Immigrant Rights Project.

González, C.J. ¶1 The right to effective assistance of counsel is a foundational part of the compact between each of us and our state. See WASH. CONST. art. I, § 22 ; State v. A.N.J. , 168 Wash.2d 91, 96, 225 P.3d 956 (2010) ; Gideon v. Wainwright , 372 U.S. 335, 337, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Any person charged with a crime has the constitutional right to competent counsel at every critical stage of the criminal proceeding and the constitutional right to the competent advice of that counsel. See A.N.J. , 168 Wash.2d at 97-98, 225 P.3d 956. When the person charged is not a citizen of our nation, that right includes the right to be advised, by counsel, of any easily ascertainable immigration consequences that result from the charge. See Padilla v. Kentucky , 559 U.S. 356, 360, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Counsel's failure to advise their clients of the easily ascertainable immigration consequences these clients face falls below the standard imposed by the federal and state constitutions and is deficient. Id. at 368, 130 S. Ct. 1473. A person prejudiced by that deficient assistance is entitled to relief. Padilla , 559 U.S. at 360, 130 S.Ct. 1473.

¶2 Finality of judgments is also an important (though perhaps not a foundational) principle in our system of ordered liberty. See In re Pers. Restraint of Cook , 114 Wash.2d 802, 809, 792 P.2d 506 (1990) (citing In re Pers. Restraint Hews , 99 Wash.2d 80, 86, 660 P.2d 263 (1983) ).

Finality is often in tension with other values we hold dear. The judicial branch strives to ensure that no one is judged by a fundamentally flawed process or restrained by a fundamentally flawed judgment. But challenges to judgments must be timely raised. In re Pers. Restraint of Coats , 173 Wash.2d 123, 150, 267 P.3d 324 (2011). Generally, to be timely, the challenge must be raised before the trial court, through an appeal, or in a timely brought collateral attack. See id. (citing RCW 10.73.100 ).

¶3 But there is no time bar on some challenges, including challenges premised on a significant, retroactive, and material change in the law since a defendant was convicted, such as challenges based on Padilla 's requirement that a defendant be advised of the easily ascertainable immigration consequences of a guilty plea. In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d 91, 107-08, 351 P.3d 138 (2015). In 2007, Alejandro Garcia Mendoza¹ pleaded guilty to unlawful possession of a controlled substance. He moved to withdraw that plea on the grounds his counsel did not give him the advice required by Padilla . All agree this motion was exempt from the time bar. Garcia Mendoza also argued he need not show prejudice under a Washington statute, RCW 10.40.200. That statute requires trial judges not to accept guilty pleas without first assuring that the defendant has been advised of the immigration consequences of that plea, and allows defendants who were not so advised to withdraw those pleas. RCW 10.40.200(2).

¶4 The Court of Appeals concluded that Garcia Mendoza was raising two claims—a constitutional claim that was exempt from the time bar and a statutory claim that was not. It dismissed his challenge as mixed without reaching the merits. We conclude that Garcia Mendoza has made one claim for relief: ineffective assistance of counsel for failing to advise him of the immigration consequences of his plea. We reject his argument that under RCW 10.40.200 he need not show prejudice to bring this claim at this time. But since Garcia Mendoza has made a prima facie showing of ineffective assistance of counsel in a challenge that is time exempt, we vacate the dismissal of his petition and remand to the Court of Appeals with direction to order a reference hearing to determine whether Garcia Mendoza has established prejudice and is thus entitled to withdraw his plea.

FACTS

¶5 Garcia Mendoza was born in Mexico City, Mexico, and was brought to the United States by his parents when he was about 13 years old. His wife and daughter are United States citizens. He owns and operates a painting company.

¶6 Between the time he was 19 and 22, Garcia Mendoza pleaded guilty to drug possession three times. The last time was in 2007. The materials submitted strongly suggest his attorney did not advise him about the immigration consequences of that plea.²

¶7 Garcia Mendoza is in deportation proceedings. Because of this 2007 conviction, he is ineligible to apply for relief from deportation.³ In 2018, he filed a motion to withdraw his guilty plea in Snohomish County Superior Court on the grounds his plea was not knowing and voluntary because his counsel did not advise him of the specific immigration consequences he faced. He argued, correctly, that he was exempt from the one year time bar because Padilla was a significant change in the law that applies retroactively. He also argued he was prejudiced because he would not have pleaded guilty had he been specifically advised of the immigration consequences of his plea.

¶8 The State successfully moved to transfer Garcia Mendoza's motion to the Court of Appeals as a personal restraint petition. The State conceded that the petition was not time barred under Tsai , 183 Wash.2d 91, 351 P.3d 138, and Padilla , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. The State argued, however, that Garcia Mendoza had not established that his counsel was ineffective, that his plea was the result of deficient performance by his counsel, or that he was prejudiced.

¶9 In response to the State's motion, Garcia Mendoza argued for the first time that he was not required to show prejudice under RCW 10.40.200, which says in relevant part:

If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty.

RCW 10.40.200(2). He also argued that his claim for relief under RCW 10.40.200 was not time barred because he could not have brought his statutory claim prior to Tsai .

¶10 The Court of Appeals concluded Garcia Mendoza was raising a new claim for relief in his reply by arguing that he did not need to show prejudice under RCW 10.40.200, found that the claim was time-barred, and dismissed his petition as mixed. In re Pers. Restraint of Garcia-Mendoza , No. 79621-6-I, slip op. at 1, 2019 WL 6492486 (Wash. Ct. App. Dec. 2, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/796216.pdf. Our deputy commissioner denied review and Garcia Mendoza successfully moved to modify that ruling. The Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington, the Washington Defender Association and the Northwest Immigrant Rights Project have submitted an amici brief urging relief.

ANALYSIS

¶11 The United States Supreme Court has recognized that " ‘[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.’ " Padilla , 559 U.S. at 368, 130 S.Ct. 1473 (alteration in original) (internal quotation marks omitted) (quoting Immigration & Naturalization Serv. v. St. Cyr , 533 U.S. 289, 322, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) ). "Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’ " Id. at 364, 130 S.Ct. 1473 (quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) ). In Padilla the court held that effective assistance of counsel includes advice on the specific immigration consequences of a plea, at least when those consequences could be determined "simply from reading the text of the statute." Padilla , 559 U.S. at 368, 130 S.Ct. 1473. When "an attorney unreasonably fails to research or apply relevant statutes without any tactical purpose, that attorney's performance is constitutionally deficient." Tsai , 183 Wash.2d at 102, 351 P.3d 138 (citing State...