People v. Kazadi

• Decision Date: 03 March 2011
• Docket Number: No. 09CA2640.,09CA2640.
• Citation: 284 P.3d 70
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Yanick KAZADI, Defendant–Appellant.
• Court: Colorado Court of Appeals

284 P.3d 70

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

v.Yanick KAZADI, Defendant–Appellant.

No. 09CA2640.

Colorado Court of Appeals, Div. I.

March 3, 2011.

John W. Suthers, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

The Noble Law Firm, LLC, Antony M. Noble, Lakewood, Colorado, for Defendant–Appellant.

Opinion by Judge GABRIEL.

Defendant, Yanick Kazadi, a legal permanent resident who came to the United States from the Congo with his parents when he was thirteen years old, appeals the district court's order denying without a hearing his Crim. P. 35(c) motion for postconviction relief. In that motion, Kazadi, relying on both state and federal constitutional law, collaterally attacked his felony and misdemeanor drug possession convictions, arguing that he would not have pleaded guilty to those crimes had plea counsel informed him that by doing so he would subject himself to presumptive mandatory removal from the United States without the possibility of legal reentry.

We first conclude that the district court erred in summarily denying Kazadi's ineffective assistance of counsel challenge to his misdemeanor conviction. Accordingly, we reverse and remand for a hearing on that aspect of Kazadi's claim. We conclude, however, that Kazadi may not seek Crim. P. 35(c) review of his felony conviction, for which he received a deferred judgment and sentence. Accordingly, we vacate the district court's order denying that aspect of his motion.

I. Background

Kazadi pleaded guilty to possession with intent to distribute marijuana in violation of former section 18–18–406(8)(b), Ch. 71, sec. 1, 1992 Colo. Sess. Laws 360–61, a felony. He also pleaded guilty to possession of a schedule V controlled substance (codeine), in violation of section 18–18–405(2)(a)(IV)(A), C.R.S.2010, a misdemeanor. In their plea agreement, the parties stipulated to a deferred judgment and sentence on the felony but entry of judgment and a probationary sentence on the misdemeanor.

On the same day that the district court held a providency hearing to determine whether to accept Kazadi's guilty pleas and the parties' stipulation, Kazadi signed a Crim. P. 11 advisement form that warned him of certain immigration consequences associated with pleading guilty:

If I am not a citizen of the United States, this guilty plea may cause removal (formerly “deportation”), exclusion from admission to the United States or denial of naturalization. I further have been advised that for certain felonies, federal statutes could require removal and permanent exclusion. I have conferred with counsel regarding this and understand that I have a right to confer with immigration counsel. I understand that this court has no authority regarding immigration issues. No promises or representations have been made to me by the Court regarding immigration consequences other than the plain statements made in this paragraph.

(First emphasis added.)

The district court did not specifically discuss this paragraph with Kazadi during the providency hearing, although it asked Kazadi generally whether he had read and understood each paragraph in the advisement and whether he had indicated so by initialing each paragraph and by signing the advisement under the penalty of perjury. Kazadi responded affirmatively.

After discovering Kazadi's drug possession convictions, Immigration and Customs Enforcement instituted removal proceedings. In an apparent attempt to avert his removal, Kazadi filed a Crim. P. 35(c) motion, challenging his drug possession convictions on the ground that he received constitutionally ineffective assistance of counsel during the plea process. Specifically, Kazadi alleged that his counsel was ineffective in not advising him that by pleading guilty, he would become subject to presumptive mandatory removal and permanent exclusion from the United States. He also alleged that but for this ineffective assistance, he would not have pleaded guilty to either charge because he had no connections to or friends or family in the Congo, had intended to remain in the United States where he has resided since arriving with his parents as a child, and was engaged to a United States citizen with whom he had a then six-month-old child.

The district court denied Kazadi's motion without a hearing. As pertinent here, the court held that Kazadi was not prejudiced by the purported ineffectiveness of his counsel because he had read, understood, and signed the Crim. P. 11 advisement form, thereby acknowledging that “he was aware of the possible immigration consequences of pleading guilty.”

Kazadi then filed a C.A.R. 21 petition for emergency relief in our supreme court. In that petition, he argued that a direct appeal would not afford him a “plain, speedy, and adequate remedy” because he would likely be removed from the United States before he could obtain any relief, and once removed, he would be unable to pursue the withdrawal of his guilty pleas. The court denied the petition over the objection of two justices. Kazadi then immediately filed this appeal.

II. Misdemeanor Conviction

In his Crim. P. 35(c) motion, Kazadi sought to set aside both his misdemeanor and felony convictions. We first address the postconviction court's denial of Kazadi's motion as it pertained to the misdemeanor count. Kazadi asserts that he sufficiently pleaded facts to establish that his plea counsel was constitutionally ineffective in not advising him that by pleading guilty, he would subject himself to presumptive mandatory removal and permanent exclusion from the United States. Thus, he contends that the district court erred in denying his motion without a hearing. We agree.

We review de novo the portion of the district court's order summarily denying Kazadi's collateral attack on his misdemeanor conviction. People v. Long, 126 P.3d 284, 286 (Colo.App.2005). A district court may deny a Crim. P. 35(c) motion without an evidentiary hearing “only where the motion, files, and record in the case clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief.” Ardolino v. People, 69 P.3d 73, 77 (Colo.2003).

To determine whether a defendant received ineffective assistance during the plea process in violation of his right to counsel under either the United States or Colorado Constitution, we apply the two-prong test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687–94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart, 474 U.S. 52, 57–59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Strickland in the guilty plea context to a claim of ineffective assistance under the Sixth Amendment); People v. Pozo, 746 P.2d 523, 525–26 (Colo.1987) (same but under the Colorado Constitution). Specifically, in the plea context, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) a reasonable probability exists that but for counsel's errors, he or she “would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 57–59, 106 S.Ct. 366. We address each prong in turn.

A. Deficient Performance

After Kazadi pleaded guilty, the United States Supreme Court decided Padilla v. Kentucky, ––– U.S. ––––, ––––, 130 S.Ct. 1473, 1478, 176 L.Ed.2d 284 (2010), which addressed “whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” Focusing solely on Strickland's first prong, the Court observed, “The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at ––––, 130 S.Ct. at 1482. Thus, the Court held that when the terms of the relevant immigration statute are “succinct, clear, and explicit” in defining the removal consequences associated with a particular conviction, counsel must give “correct advice.” Id. at ––––, 130 S.Ct. at 1483. Conversely, when the law is not succinct and straightforward, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id.

Applying those principles to the case before it, the Supreme Court held that Padilla had sufficiently alleged that his counsel was ineffective by providing incorrect advice to him regarding the removal consequences of his pleading guilty to transporting a large amount of marijuana. Id. The Court observed that counsel could easily have determined from the text of the relevant immigration statute, 8 U.S.C. § 1227(a)(2)(B)(i), that Padilla's plea would make him eligible for removal. Id. Thus, counsel's failure to advise Padilla correctly of those consequences was deficient.

The parties debate whether Padilla established a new rule governing ineffective assistance of counsel claims in cases like this, and, thus, whether the Court's holding in Padilla should apply retroactively to this case. Although the majority of federal courts to have addressed this issue appear to have held that Padilla did not announce a new rule, there are also a number of cases holding to the contrary. Compare, e.g., Luna v. United States, No. 10CV1659–JLS–POR, 2010 WL 4868062, at *3–4 (S.D.Cal. Nov.23, 2010) (unpublished order) (holding that Padilla does not evince a new rule and thus may be applied retroactively), with Doan v. United States, 760 F.Supp.2d 602, 604–06, No. 1:06cr463, 2011 WL 116811, at *2–3 (E.D.Va. Jan.4, 2011) (holding that Padilla announced a new rule and declining to apply it retroactively). We, however, need not decide that issue here, because even if Padilla announced a new rule under federal law, Colorado law, under which Kazadi is also proceeding, has long recognized the very duties that the Supreme Court discussed in Padilla....