People v. Chavez-Torres

• Decision Date: 17 November 2016
• Docket Number: Court of Appeals No. 15CA1507
• Citation: 410 P.3d 690
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Israel CHAVEZ-TORRES, Defendant-Appellant.
• Court: Colorado Court of Appeals

410 P.3d 690

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Israel CHAVEZ-TORRES, Defendant-Appellant.

Court of Appeals No. 15CA1507

Colorado Court of Appeals, Div. I.

Announced November 17, 2016

As Modified on Denial of Rehearing December 29, 2016

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, Colorado, for Defendant-Appellant

Opinion by JUDGE DUNN

¶ 1 In People v. Martinez–Huerta , 2015 COA 69, ¶ 18, 363 P.3d 754, a division of this court concluded that a defendant's allegation that he pleaded guilty based upon his counsel's "affirmative and erroneous" advice regarding the immigration consequences of such a plea warranted a hearing to determine whether the defendant could establish justifiable excuse or excusable neglect for his late postconviction motion.

¶ 2 Relying on that case, the district court here summarily denied the untimely Crim. P. 35(c) motion of defendant, Israel Chavez-Torres, concluding as a matter of law that Martinez–Huerta foreclosed a hearing to determine whether Chavez-Torres' allegations, if true, would establish justifiable excuse or excusable neglect.

¶ 3 Because we do not read Martinez–Huerta the same way, and because we further conclude that Chavez-Torres alleged facts that, if true, would establish justifiable excuse or excusable neglect, we reverse and remand the case for further proceedings.

I. Background

¶ 4 Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

¶ 5 Seventeen years after his criminal trespass conviction, the United States Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude.

¶ 6 Chavez-Torres consulted with an immigration attorney who advised him that because of his conviction, he was not eligible for cancellation of removal from the United States. The immigration attorney also advised him that his plea counsel may have been ineffective in not advising him of the immigration consequences of his guilty plea.

¶ 7 Chavez-Torres moved for postconviction relief from his criminal trespass conviction under Crim. P. 35(c). He alleged that, despite the fact that he had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that, had plea counsel properly advised him of this risk, he would have rejected the plea offer and insisted on going to trial. As a result, he asserted that his plea and conviction were constitutionally infirm.

¶ 8 Chavez-Torres acknowledged that his postconviction motion was untimely. But he alleged that the untimeliness resulted from circumstances amounting to justifiable excuse or excusable neglect because he had no reason to question the constitutional validity of his criminal trespass conviction until the initiation of the removal proceedings. It was only then, he alleged, that he learned his trespass conviction prevented him from remaining in the United States and that his plea counsel may have rendered ineffective assistance.

¶ 9 The district court summarily denied Chavez-Torres' motion. It found that (1) the motion was filed beyond the three-year deadline for postconviction challenges; (2) given the passage of time, "the prejudice to the state's case would be great"; and (3) Chavez-Torres had failed to assert facts "amounting to justifiable excuse or excusable neglect."

II. Justifiable Excuse or Excusable Neglect

¶ 10 Chavez-Torres contends that the district court erred in summarily denying his postconviction motion based on the statutory time bar because (1) he asserted facts that, if true, would establish justifiable excuse or excusable neglect; and (2) the finding that the State would suffer "great" prejudice has no record support. We agree as to both.

A. Governing Standards

¶ 11 A defendant has three years to file a Crim. P. 35(c) motion challenging a non-class-one felony conviction. § 16-5-402(1), C.R.S. 2016. But the deadline may be extended if "the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect." § 16-5-402(2)(d).

¶ 12 To merit a hearing on the exception to the three-year deadline, a defendant must allege facts that, if true, would establish justifiable excuse or excusable neglect. Close v. People , 180 P.3d 1015, 1019 (Colo. 2008) ; People v. Wiedemer , 852 P.2d 424, 440 n.15 (Colo. 1993). The defendant need not set forth the evidentiary support for his allegations. Close , 180 P.3d at 1019.

¶ 13 In determining whether justifiable excuse or excusable neglect exists, the district court must consider "the particular facts of [the] case, so as to give effect to the overriding concern that defendants have a meaningful opportunity to challenge their convictions as required by due process." Id. To facilitate such a case-specific review, our supreme court has identified a list of non-exhaustive factors that a district court must consider in addressing justifiable excuse or excusable neglect. Wiedemer , 852 P.2d at 442. In particular, the court must take into consideration whether

1. circumstances or outside influences existed that prevented a challenge to the prior conviction;

2. a defendant having reason to question the constitutionality of a conviction investigated its validity and took advantage of relevant avenues of relief that were available;

3. a defendant had any previous need to challenge a conviction and either knew that it was constitutionally infirm or had reason to question its validity;

4. a defendant had other means of preventing the government's use of the conviction, so that a postconviction challenge was previously unnecessary; and

5. the passage of time affects the State's ability to defend against the challenge.

Id. at 441–42.

¶ 14 Whether a defendant can ultimately establish justifiable excuse or excusable neglect is a question of fact for the district court. Id. at 443. But whether the defendant alleged facts that, if true, would constitute justifiable excuse or excusable neglect, and therefore merit a hearing on the issue, is a question that we review de novo. Martinez–Huerta , ¶ 8 ; see Close , 180 P.3d at 1019, 1022.

B. The Postconviction Allegations

¶ 15 Chavez-Torres' postconviction motion alleged that (1) he "told [his counsel] that he was not a citizen of the United States"; (2) "[o]n the advice of his attorney," he accepted the plea offer; (3) his attorney "did not advise him that the plea would prevent him from becoming a lawful permanent resident" or "prevent him from applying for cancel[l]ation of removal"; (4) he was "unaware" that the plea would "prevent him from remaining in the United States"; (5) he successfully completed his probation in 1998; and (6) he did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. In support of his postconviction motion, Chavez-Torres attached his plea agreement, which—unlike some such agreements—contained no notice of possible immigration consequences. And he attached his plea transcript, which again did not refer to possible immigration consequences.¹

¶ 16 The prosecution did not respond to the postconviction motion.

¶ 17 Despite the uncontested allegations, the district court summarily denied the postconviction motion. Specifically, relying on Martinez–Huerta , the district court concluded, as a matter of law, that an attorney's failure to advise a client of adverse immigration consequences "does not establish justifiable excuse or excusable neglect." And it concluded that the prejudice to the State's case "would be great."

C. Martinez–Huerta

¶ 18 Martinez–Huerta did not address the issue presented here. That is, it did not consider whether allegations that an attorney affirmatively advised her non-citizen client to accept a plea, without also advising the client of related possible immigration consequences, are sufficient to warrant a hearing on justifiable excuse or excusable neglect. Rather, Martinez–Huerta concluded that the defendant's allegation there—that his counsel gave him "affirmative and erroneous" advice—was sufficient to warrant a hearing to determine whether the defendant could establish justifiable excuse or excusable neglect. Id. at ¶ 18. We thus do not agree with the district court that Martinez–Huerta stands for the general proposition that an attorney's mere failure to advise a client of adverse immigration consequences, under the circumstances alleged here, is insufficient, as a matter of law, to establish justifiable excuse or excusable neglect.

¶ 19 To be sure, and as the People stress, Martinez–Huerta observed that "[g]enerally, the absence of, or failure to give, advice does not establish justifiable excuse or excusable neglect." Id. at ¶ 17. But the cases Martinez–Huerta relied on for this unremarkable proposition— People v. Alexander , 129 P.3d 1051 (Colo. App. 2005), and People v. Slusher , 43 P.3d 647 (Colo. App. 2001) —are not immigration consequence cases. And neither involved situations—like this one—where an attorney has a legal duty to advise a known, non-citizen client of possible immigration consequences related to a guilty plea. See People v. Pozo , 746 P.2d 523, 526 (Colo. 1987) (holding that attorneys have an affirmative duty to research relevant immigration law for their non-citizen clients, and when the law is clear, to advise their clients regarding the immigration consequences of a guilty plea); accord People v. Kazadi , 284...