Ortega-Araiza v. State

• Decision Date: 06 August 2014
• Docket Number: No. S–13–0242.,S–13–0242.
• Citation: 331 P.3d 1189
• Parties: Luis Gerardo ORTEGA–ARAIZA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

331 P.3d 1189

Luis Gerardo ORTEGA–ARAIZA, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0242.

Supreme Court of Wyoming.

Aug. 6, 2014.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Megan L. Nicholas, Assistant Attorney General. Argument by Ms. Nicholas.

Before BURKE, C.J., and HILL, KITE,^*DAVIS, and FOX, JJ.

FOX, Justice.

[¶ 1] Luis Ortega–Araiza pled guilty to strangling his girlfriend (a household member) in violation of Wyo. Stat. Ann. § 6–2–509(a)(i), (b) (LexisNexis 2013). Prior to his sentencing, he learned that his guilty plea would result in his deportation, and he moved to withdraw the plea, claiming ineffective assistance of counsel. The district court agreed that Mr. Ortega–Araiza's counsel should have advised Mr. Ortega–Araiza that he would be deported upon conviction, as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). However, the district court found that Mr. Ortega–Araiza failed to prove the prejudice prong required for an ineffective assistance of counsel claim and denied Mr. Ortega–Araiza's motion to withdraw his guilty plea, sentencing him to two to four years imprisonment. We reverse.

ISSUES

[¶ 2] We restate the issues as follows:

1. Was Mr. Ortega–Araiza prejudiced by his counsel's deficient performance?

2. Did the district court's warning during the plea colloquy cure the prejudice suffered by Mr. Ortega–Araiza?

3. Did the warning in the plea agreement cure the prejudice suffered by Mr. Ortega–Araiza?

4. Did the district court abuse its discretion when it denied Mr. Ortega–Araiza's motion to withdraw his guilty plea?

FACTS

[¶ 3] Luis Ortega–Araiza is a resident alien, who has been living in the United States legally since 1980. Mr. Ortega–Araiza has had numerous minor brushes with the law. He faced his first felony charge, however, after the authorities were called to the residence he shared with his girlfriend to respond to a domestic disturbance. Mr. Ortega–Araiza was charged with strangulation of a household member in violation of Wyo. Stat. Ann. § 6–2–509(a)(i), (b), and was arraigned on November 26, 2012, when he pled not guilty. Just before the scheduled jury trial, on March 18, 2013, Mr. Ortega–Araiza and the State entered into a Plea Agreement for Recommended Disposition. The district court held a change of plea hearing the same day, at which Mr. Ortega–Araiza pled guilty to the charge of strangulation of a household member in violation of Wyo. Stat. Ann. § 6–2–509(a)(i), (b). At the change of plea hearing, the district court advised Mr. Ortega–Araiza of his rights pursuant to the Wyoming Rules of Criminal Procedure. In addition, the district court cautioned Mr. Ortega–Araiza, “If you are not a U.S. citizen, certain felony convictions may be the basis for deportation proceedings by the ICE [Immigration and Customs Enforcement].” Moreover, the Plea Agreement for Recommended Disposition, signed by Mr. Ortega–Araiza, stated, “The Defendant understands that this plea(s) may result in negative consequences regarding any immigration or visa status, including potential deportation and inability to return to this country.”

[¶ 4] After the change of plea hearing, counsel for Mr. Ortega–Araiza discovered Mr. Ortega–Araiza's alien status. Knowing that Mr. Ortega–Araiza would face deportation if the plea went forward,¹ counsel moved to withdraw Mr. Ortega–Araiza's guilty plea. In the motion, counsel admitted that he provided ineffective assistance when he failed to advise Mr. Ortega–Araiza concerning the immigration consequences of a guilty plea, in violation of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473. The State opposed the motion, and the district court held a hearing on June 17, 2013. On July 15, 2013, the district court entered an order denying Mr. Ortega–Araiza's motion to withdraw his guilty plea. While the district court determined that Mr. Ortega–Araiza had succeeded in demonstrating that his counsel's performance was deficient, it also found that Mr. Ortega–Araiza failed to prove the prejudice prong of his ineffective assistance of counsel claim. The district court stated:

Under the circumstances of this case, the Court finds [that Mr. Ortega–Araiza] has failed to prove he was prejudiced by counsel's deficient performance. [Mr. Ortega–Araiza] failed to provide the Court with any information regarding how the outcome of this proceeding would have been different had his counsel advised him of [the] possibility of deportation. Rather defense counsel at the hearing suggested that if allowed to withdraw his guilty plea the parties may be able to reach another plea agreement.... Additionally, Mr. Ortega[-Araiza] was advised twice of the possible risk of deportation before he pled guilty. Mr. Ortega[-Araiza] specifically acknowledged the possible risk of deportation when he signed the plea agreement.... [Mr. Ortega–Araiza] was also advised by the Court during re-arraignment of the risk of deportation.... Despite counsel's failure, Mr. Ortega[-Araiza] was informed of the possibility of deportation and pled guilty anyways. Given the circumstances the Court cannot find [that Mr. Ortega–Araiza] was prejudiced by defense counsel's failure. Thus the Court finds that [defense counsel] was not ineffective.The district court then went on to sentence Mr. Ortega–Araiza, in accordance with his earlier guilty plea, to two to four years in prison. Mr. Ortega–Araiza filed a timely notice of appeal.

DISCUSSION

I. Was Mr. Ortega–Araiza prejudiced by his counsel's deficient performance?

[¶ 5] “Claims of ineffective assistance of counsel involve mixed questions of law and fact[.]” Osborne v. State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo.2012). We review such claims de novo. Id.

[¶ 6] In Frias v. State, 722 P.2d 135 (Wyo.1986), we adopted the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether a defendant received effective assistance of counsel. Frias, 722 P.2d at 145. The defendant must establish first, that counsel's performance was deficient, and second, that the defendant was prejudiced as a result of that deficient performance. Id.; see also McGarvey v. State, 2014 WY 66, ¶¶ 13–14 325 P.3d 450, 454–55 (Wyo.2014) (discussing ineffective assistance of counsel).

[¶ 7] In 2010, the United States Supreme Court held that attorneys have an affirmative duty to inform clients of immigration consequences of criminal convictions in Padilla, 559 U.S. 356, 130 S.Ct. 1473. Discussing the importance of the deportation risks among alien criminal defendants, the court found that often adverse immigration consequences are of greater concern than prison terms. Id. at 365–66, 368, 130 S.Ct. at 1481, 1483. The court examined the “prevailing professional norms” to determine whether failing to inform a client of adverse immigration consequences in the criminal context “fell below an objective standard of reasonableness” in accordance with Strickland, and held that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at 366–67, 130 S.Ct. at 1482; Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. Since Padilla, criminal defense attorneys must advise alien clients of immigration repercussions to provide effective assistance of counsel.

[¶ 8] This Court was presented with the same issue in Valle v. State, 2006 WY 43, 132 P.3d 181 (Wyo.2006), prior to the United States Supreme Court ruling in Padilla. In Valle, we stated that “[t]he law concerning whether a defendant must be advised about immigration consequences before entering a guilty plea is well settled. Immigration consequences are a collateral issue and no advice need be given to a defendant concerning those consequences[.]” Valle, 2006 WY 43, ¶ 9, 132 P.3d at 184.² The United States Supreme Court rejected this approach in Padilla, stating:

We ... have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U.S. at 689, 104 S.Ct. [at] 2052. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

....

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim.

Padilla, 559 U.S. at 365–66, 130 S.Ct. at 1481–82. The collateral/direct consequences distinction can no longer be relied upon in the immigration context. To the extent that our decision in Valle applies to the advice an attorney must provide to his client regarding deportation consequences of a guilty plea, it is overruled.

[¶ 9] In this case, all parties, and the district court, have conceded that counsel's performance was deficient when he failed to advise Mr. Ortega–Araiza of the immigration consequences of a guilty plea in accordance with the mandates of Padilla. Thus, the issue before us is whether the district court correctly found that Mr. Ortega–Araiza failed to prove the prejudice prong of the Strickland test.

[¶ 10] The district court determined that Mr. Ortega–Araiza was required to demonstrate...