People v. Morones-Quinonez

• Decision Date: 05 November 2015
• Docket Number: Court of Appeals No. 14CA1493
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Luz del Carmen MORONES–QUINONEZ, Defendant–Appellant.
• Court: Colorado Court of Appeals

363 P.3d 807

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

v.Luz del Carmen MORONES–QUINONEZ, Defendant–Appellant.

Court of Appeals No. 14CA1493

Colorado Court of Appeals, Div. I.

Announced November 5, 2015

Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Hernandez & Associates, P.C., Arnulfo D. Hernández, Christine M. Hernández, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE HARRIS

¶ 1 Luz del Carmen Morones–Quinonez appeals the district court's order summarily denying her Crim. P. 35(c) motion for postconviction relief based on a claim of ineffective assistance of counsel. Ms. Morones asserts that she sufficiently alleged that her lawyer misadvised her of the immigration consequences of her guilty plea to criminal impersonation and that, if she had been properly advised, she would have insisted on proceeding to trial. We reverse and remand for an evidentiary hearing.

I. Background

¶ 2 Ms. Morones was charged with one count of criminal possession of a forged instrument, § 18–5–105, C.R.S.2015, and one count of criminal impersonation, § 18–5–113(1)(3), C.R.S.2015, after police officers conducting a traffic stop discovered a false identification card in her possession. Ms. Morones hired a lawyer whose practice focused on immigration and criminal law to represent her in both her criminal case and the removal proceedings that had been initiated shortly after the criminal charges were filed.

¶ 3 According to her motion, Ms. Morones was adamantly opposed to accepting any plea offer that would make her ineligible for relief from deportation. Her lawyer recommended that she plead guilty to criminal impersonation, assuring her that she would be "just fine" in immigration court, as criminal impersonation, unlike identity theft, was a "minor felony," and would not affect her immigration case.

¶ 4 With those assurances, Ms. Morones pleaded guilty to criminal impersonation. She was later ordered deported by an immigration law judge. Through her lawyer, she requested cancellation of removal, but that request was denied based on her conviction.

¶ 5 Ms. Morones then filed her Crim. P. 35(c) motion, alleging that her counsel had provided ineffective assistance by affirmatively misadvising her of the immigration consequences of her guilty plea. She further alleged that, had she been properly advised, she would have rejected the plea offer and proceeded to trial. The district court denied Ms. Morones's motion without a hearing, concluding that, as a matter of law, Ms. Morones could not establish prejudice from her counsel's allegedly deficient performance because, even if counsel had misadvised Ms. Morones, the written guilty plea advisement and the court's oral advisement at the Crim. P. 11 providency hearing necessarily cured any deficiencies. We conclude that Ms. Morones is entitled to a hearing on her motion.

II. Legal Analysis

A. Standard of Review

¶ 6 Crim. P. 35(c) allows a defendant to challenge a judgment of conviction on the ground that it was obtained in violation of her constitutional rights. Crim. P. 35(c)(2)(I). The merits of such a challenge—in this case, whether Ms. Morones is entitled to withdraw her guilty plea based on the alleged ineffective assistance of her counsel—should be addressed, in the first instance, by the trial court. At this stage, our review is limited to determining whether Ms. Morones was entitled to a hearing where she could attempt to prove her claim. Cf. People v. Simpson, 69 P.3d 79, 80 (Colo.2003) (whether the defendant's guilty plea was knowing and voluntary could not be decided by court of appeals based on Rule 35(c) motion, but had to be determined by trial court after an evidentiary hearing). She is entitled to a hearing so long as she has asserted facts in her postconviction motion that, if true, would provide a basis for relief under Crim. P. 35. White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo.1988). We review de novo the sufficiency of her factual allegations. People v. Martinez–Huerta, 2015 COA 69, ¶ 8, 363 P.3d 754.

B. Discussion

¶ 7 To determine whether a defendant received ineffective assistance during the plea process in violation of her constitutional right to counsel, we apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687–94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) a reasonable probability exists that counsel's deficient performance prejudiced the defendant, meaning that "but for counsel's errors," she would not have pleaded guilty but instead would have proceeded to trial. People v. Kazadi, 284 P.3d 70, 73 (Colo.App.2011) (quoting Hill v. Lockhart, 474 U.S. 52, 57–59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ), aff'd, 2012 CO 73, 291 P.3d 16.

¶ 8 The district court concluded that, as a matter of law, Ms. Morones could not establish prejudice, and denied the motion on that basis, without addressing the allegations of counsel's deficient performance. See People v. Vicente–Sontay, 2014 COA 175, ¶ 21, 361 P.3d 1046 (if court determines that the defendant has failed to prove either prong of Strickland analysis, it may deny the claim without addressing the other prong). Because, as we explain below, we disagree that Ms. Morones's prejudice allegation fails as a matter of law, we turn briefly to the sufficiency of Ms. Morones's deficient performance allegation.

¶ 9 Ms. Morones alleged that her lawyer misrepresented the consequences of her guilty plea, assuring her that a conviction for criminal impersonation would have no effect on her then-pending removal proceedings. The immigration consequences of a conviction for criminal impersonation were unclear at the time Ms. Morones pleaded guilty to that charge. Id. at ¶ 35 ; see also People v. Price, 240 P.3d 557, 564–65 (Colo.App.2010) (counsel's performance must be evaluated from counsel's perspective at the time of the challenged conduct). Still, even given the ambiguity in the law, as the People acknowledge, Ms. Morones's lawyer had an obligation to warn her that, at a minimum, her plea "may carry a risk of adverse immigration consequences." See Vicente– Sontay, ¶ 35 (citing Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ). Counsel's failure to do so would constitute ineffective assistance.

¶ 10 Accordingly, Ms. Morones has sufficiently pleaded deficient performance by her counsel. We recognize that Ms. Morones's lawyer has a different recollection of events: in connection with Ms. Morones's Rule 35(c) motion, he filed an affidavit in which he asserted that he had advised Ms. Morones that "there was a possibility" that her conviction "would cause problems in her immigration case." But his contrary assertion does not undermine the sufficiency of Ms. Morones's allegations. What Ms. Morones's lawyer said and whether his advisement, if given, satisfied the standard under Vicente–Sontay are issues that must be resolved at a hearing.

¶ 11 We now turn back to the prejudice prong. Ms. Morones alleged, as she must under Lockhart, 474 U.S. at 59, 106 S.Ct. 366, that her counsel's constitutionally deficient performance resulted in prejudice because, had she been properly advised, she would have rejected the plea offer and insisted on going to trial. The district court found that, as a matter of law, Ms. Morones's prejudice allegation was insufficient.

¶ 12 To the extent the district court's conclusion was based on what it termed the "self-serving" nature of the claim, we disagree that, at this stage, Ms. Morones has a duty under People v. Carmichael, 206 P.3d 800 (Colo.2009), to provide corroborating evidence to support her prejudice allegation. Carmichael 's rule requiring independent evidence that the defendant would have forgone her guilty plea had counsel properly advised her applies only after an evidentiary hearing, where the defendant has an opportunity to present such evidence. Id. at 807–08. But even so, in the context of a decision to forgo a guilty plea based on immigration considerations, the defendant need only make some showing that the decision would have been rational. Padilla, 559 U.S. at 372, 130 S.Ct. 1473.

¶ 13 The record reveals that Ms. Morones has lived in the United States for twenty years and has a husband and four United States-citizen children who live in Colorado.

Preserving the ability to remain in the United States may be more important to a defendant than any potential jail sentence, Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), so it might be rational for a defendant to "take [her] chances at trial," even though she might risk a longer prison sentence, State v. Sandoval, 171 Wash.2d 163, 249 P.3d 1015, 1022 (2011) ; see also United States v. Orocio, 645 F.3d 630, 645 (3d Cir.2011) ("[T]he threat of removal provides [a] powerful incentive to go to trial if a plea would result in removal anyway."), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 1107 n. 2, 185 L.Ed.2d 149 (2013) ; Sial v. State, 862 N.E.2d 702, 706 (Ind.Ct.App.2007) (fact that the defendant had been living in United States for twenty years and had a wife and United States-citizen daughter established that he would have forgone plea and proceeded to trial). For this reason, the strength of the evidence against the defendant may not be as probative of rationality as it would be in a nonimmigration case. State v. Favela, 311 P.3d 1213, 1219 (N.M.Ct.App.2013), aff'd, 343 P.3d 178 (N.M.2015) ; see also Denisyuk v. State, 422 Md. 462, 30 A.3d 914, 929 (2011) ("The appropriate determination is not whether [the defendant] ultimately would have been convicted following a trial, but rather whether there is a reasonable probability that, but for counsel's errors," the defendant would have...