Montes v. State
| Docket Number | ED 109883 |
| Decision Date | 20 September 2022 |
| Citation | 652 S.W.3d 776 |
| Parties | Hector MONTES, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael R. Durham, 211 S. Broadway, 40TH Floor, St. Louis, Mo. 63102, for appellant.
Zeb J. Charlton, P.O. Box 899, Jefferson City, Mo. 65102, for respondent.
Movant, Hector Montes, appeals the judgment entered by the Circuit Court of Jefferson County denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant pled guilty to one count of first-degree domestic assault inflicting serious physical injury, and the court sentenced him to 15 years of imprisonment. Under Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), Movant alleges plea counsel was ineffective for failing to advise him that he would be deported as a consequence of his guilty plea, and the motion court clearly erred when it denied relief.
We conclude plea counsel's advice regarding Movant's risk of deportation was correct and truthful, and satisfied the requirement set forth in Padilla . We further find Movant suffered no prejudice. We hold Movant was not denied effective assistance of counsel, and affirm the motion court's judgment.
Movant was born in Mexico, and came to the United States with his family when he was a baby. He has lived in the U.S. continuously since. The amended motion for post-conviction relief referred to Movant as "an undocumented citizen" although we find no testimony from Movant at the evidentiary hearing or other information in the record before us regarding his precise immigration status.
In November 2016, Movant attacked his wife with a machete while she was in bed, causing injuries to her face, neck, head, and hands, including severing portions of two fingers and damaging her eye socket and nasal area. When police arrived at the scene, Movant stated he tried to kill his wife.
The State charged Movant with one count of first-degree domestic assault inflicting serious physical injury, in violation of section 565.072 RSMo. (Supp. 2014), and one count of armed criminal action, in violation of section 571.015 RSMo. (2016). First-degree domestic assault as charged here is a class A felony, section 565.072.2 RSMo. (Supp, 2014), that carries a sentence of ten to 30 years or life imprisonment, section 558.011.1(1) RSMo. (Supp. 2014). Armed criminal action is an unclassified felony that, at the time of Movant's offense and plea, carried a sentence of no less than three years with no maximum. Sec. 571.015.1 RSMo. (2016).
Movant remained confined in the county jail because he could not afford to post bond. In the meantime, he became subject to an Immigration and Customs Enforcement ("ICE") detainer, or "hold." Facing the possibility of life imprisonment if convicted at trial, Movant entered an Alford plea to the charge of first-degree domestic assault two weeks before his trial date, and received the State's recommended sentence of 15 years.1
Movant filed a pro se motion for post-conviction relief, the court appointed counsel, and counsel timely filed an amended motion. Movant claimed in his amended motion that his "plea was not made voluntarily and intelligently because he was not properly advised about the deportation risks and consequences if he pleaded guilty to domestic assault in the first degree instead of proceeding with a trial." The motion court held an evidentiary hearing at which plea counsel and Movant testified. According to plea counsel, he advised Movant that he was "subject to deportation," and it was "highly likely" Movant would face deportation if he either pled guilty or was found guilty as the result of a trial. Movant testified he and counsel never discussed immigration issues or the immigration consequences of pleading guilty. Finding that plea counsel did not give Movant incomplete or inaccurate advice, the motion court denied relief. Movant appeals.
On appeal, Movant claims the trial court clearly erred in denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant contends
Our review of a motion court's denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Ryan v. State , 547 S.W.3d 151, 154 (Mo. banc 2018) ; Hernandez v. State , 588 S.W.3d 467, 470 (Mo. App. E.D. 2019). A motion court's findings and conclusions are clearly erroneous only if, after a full review of the record, we are left with a definite and firm impression that a mistake has been made. Ryan , 547 S.W.3d at 154 ; Hernandez , 588 S.W.3d at 470. We defer to the motion court's superior opportunity to judge the credibility of witnesses. Davis v. State , 486 S.W.3d 898, 905 (Mo. banc 2016). When the stated reason for a motion court's ruling is incorrect, we will nevertheless affirm the judgment if it is sustainable on other grounds. Chacon v. State , 409 S.W.3d 529, 533 (Mo. App. W.D. 2013).
Movant alleges his attorney was ineffective. To show ineffective assistance of counsel, a movant must demonstrate: (1) that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) that counsel's deficient performance prejudiced the defense by showing a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Worthington v. State , 166 S.W.3d 566, 573 (Mo. banc 2005) citing ( Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). If Movant fails to demonstrate either the performance prong or the prejudice prong of the Strickland test , we need not consider the other. Rabun v. State , 614 S.W.3d 629, 632 (Mo. App. E.D. 2020).
The prejudice requirement centers on whether counsel's deficient performance affected the outcome of the plea process. Ryan , 547 S.W.3d at 154. When a movant enters a guilty plea, ineffective assistance of counsel remains relevant only to the extent it affected the voluntariness of the plea. Hernandez , 588 S.W.3d at 471. The movant must show there exists a reasonable probability that, but for counsel's errors, the movant would not have pled guilty and instead would have demanded a trial. Worthington , 166 S.W.3d at 573. "[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstance." Padilla , 559 U.S. at 372, 130 S.Ct. 1473.
Under the Immigration and Nationality Act ("INA"), certain criminal offenses subject non-citizens to deportation. The INA provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). An "alien" is "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). The definition of an "aggravated felony" includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). The term "crime of violence" means in pertinent part "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). First-degree domestic assault inflicting serious physical injury and punishable by a term of imprisonment of at least 10 years under Missouri law qualifies as an aggravated felony under the INA.2
Movant alleges his attorney was ineffective in failing to inform him "about the clear and determinable immigration and deportation consequences of his guilty plea to domestic assault in the first degree." Movant argues that "[p]lea counsel's failure to advise [Movant] that domestic assault in the first degree is an aggravated felony that would subject him to deportation if he pleaded guilty fell below an objective standard of reasonableness."
In Padilla v. Kentucky , the United States Supreme Court recognized that when a non-citizen commits a removable offense, deportation is practically inevitable, and thus where a clear risk of deportation exists, a defense attorney who does not advise the defendant about the clear immigration consequences of his or her plea provides ineffective assistance. 559 U.S. at 363-64, 369, 130 S.Ct. 1473 ; Hernandez , 588 S.W.3d at 471. In Padilla , counsel incorrectly advised the defendant, a long-time lawful U.S. permanent resident and Vietnam War veteran, that he need not worry about immigration consequences arising from a guilty plea to a drug charge because he had been in the U.S. for so long. 559 U.S. at 359, 130 S.Ct. 1473. The U.S. Supreme Court recognized the severity of deportation underscores how critical it is for counsel to inform a non-citizen client that he faces a risk of deportation. Id. at 373-74, 130 S.Ct. 1473. "[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation." Id. at 374, 130 S.Ct. 1473.
Here, the evidence reveals this is precisely what counsel did. Plea counsel testified at the evidentiary hearing that he told Movant "due to the nature of the case, that being a felony, that if there was a plea of guilty or finding of guilt at trial that he was subject to deportation. " (Emphasis added). Under further examination, plea counsel reiterated, ...
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