People v. Pozo, No. 85SC319

• Docket Nº: No. 85SC319
• Citation: 746 P.2d 523
• Case Date: November 09, 1987
• Court: Supreme Court of Colorado

Page 523

746 P.2d 523 56 USLW 2335 The PEOPLE of the State of Colorado, Petitioner,
v.
Jose Borcella POZO, Respondent. No. 85SC319. Supreme Court of Colorado,
En banc. Nov. 9, 1987.
Rehearing Denied Dec. 21, 1987.

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Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia Jones, Asst. Atty. Gen., Denver, for petitioner.

Ken Stern, Denver, for respondent.

Richard A. Hostetler, Denver, for amicus curiae American Civil Liberties Union.

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Ann Allott, Lorna Rogers Burgess, Dan Kowalski, Littleton, for amicus curiae American Immigration Lawyers Assn.

Larry Pozner & Associates, P.C., Shelley Gilman, Denver, for amicus curiae Colorado Criminal Defense Bar.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for amicus curiae Colorado State Public Defender's Office.

KIRSHBAUM, Justice.

In People v. Pozo, 712 P.2d 1044 (Colo.App.1985), the Court of Appeals reversed and remanded an Arapahoe County District Court order denying two motions to withdraw guilty pleas filed by the respondent, Jose Borcella Pozo, under Crim.P. 35(c). The Court of Appeals held that Pozo received ineffective assistance of counsel at the time he entered the pleas because his attorney did not inform him of the possible deportation consequences that would flow from the pleas. We granted the People's petition for certiorari to review that holding, ¹ and now reverse and remand the case to the Court of Appeals with instructions to remand the case to the trial court for further proceedings.

I

Pozo, an alien legally residing in the United States, came to this country from Cuba in April 1980. In October 1982, pursuant to a plea agreement, Pozo entered pleas of guilty to second degree sexual assault and to escape. Pozo received a sentence to the Department of Corrections of two years for the escape conviction and a consecutive sentence of two years and six months for the sexual assault conviction. In May 1983, after a detainer was filed against him by the Immigration and Naturalization Service, ² Pozo filed motions to vacate the judgments of conviction under Crim.P. 35(c). He asserted: (1) that he was not adequately advised of, nor did he understand the elements of the charges against him when he entered the pleas; ³ and (2) that he did not receive effective assistance of counsel because his trial counsel did not advise him of the possible deportation consequences of his guilty pleas.

A hearing on these motions was held in June 1983. Pozo testified through an interpreter that in October 1982 he had not been aware of any possible deportation consequences of his guilty pleas and that he would not have entered such pleas had he been aware of those consequences. An affidavit signed by Pozo's trial counsel, stating that he had not discussed the possible deportation consequences of the guilty pleas with Pozo, was introduced into evidence. The trial court found that prior to entering the guilty pleas Pozo had not discussed deportation consequences with his trial counsel or any other counsel and was not aware of such consequences. However, the trial court concluded that Pozo had been represented by competent and effective counsel. The Court of Appeals concluded that Pozo had been denied effective assistance of counsel, reversed the trial court's ruling and remanded the case to the trial court with directions to reinstate the original charges and allow Pozo to plead anew.

II

A plea of guilty effects a waiver of fundamental rights and, therefore, must be knowingly, intelligently and voluntarily made to be valid. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203

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(1985); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); see also People v. Mozee, 723 P.2d 117 (Colo.1986). Under the sixth amendment to the United States Constitution and article II, section 16 of the Colorado Constitution, the voluntariness of a guilty plea entered by a defendant represented by counsel depends in part upon whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), quoted in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203; People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979). A defendant who enters a guilty plea cannot later claim the plea was involuntary merely because counsel's advice was wrong, so long as such advice is within general bounds of reasonable competence. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, the Supreme Court applied the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to a sixth amendment claim of ineffective assistance of counsel in connection with the entry of a guilty plea. Under Strickland, a defendant claiming a violation of the constitutional right to representation by competent counsel must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance resulted in prejudice to the defendant. We have previously indicated approval of the Strickland test in connection with ineffective assistance of counsel claims based on article II, section 16, of Colorado's Constitution. See Hutchinson v. People, 742 P.2d 875 (Colo.1987). Pozo's constitutional claims must be considered in light of that standard.

It is well settled that a trial court is not required to advise a defendant sua sponte of potential federal deportation consequences of a plea of guilty to a felony charge when accepting such plea. ⁴ E.g., Downs-Morgan v. United States, 765 F.2d 1534, 1537-38 (11th Cir.1985); United States v. Russell, 686 F.2d 35, 39 (D.C.Cir.1982); Garcia-Trigo v. United States, 671 F.2d 147, 150 (5th Cir.1982); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72, 75 (1986); Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223, 224 (1982); State v. Malik, 37 Wash.App. 414, 680 P.2d 770, 772 (1984). This rule is grounded in the notion that in accepting a plea of guilty a trial court is not required to ascertain the defendant's knowledge or understanding of collateral consequences of the conviction. E.g., Downs-Morgan v. United States, 765 F.2d 1534; Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973). The trial court is required to advise the defendant only of the direct consequences of the conviction to satisfy the due process concerns that a plea be made knowingly and with full understanding of the consequences thereof.

Sixth amendment constitutional standards requiring effective assistance of counsel involve examination of quite different considerations, however. One who relies on the advice of a legally trained representative when answering criminal charges is entitled to assume that the attorney will provide sufficiently accurate advice to enable the defendant to fully understand and assess the serious legal proceedings in which he is involved. See Hawkman v. Parratt, 661 F.2d 1161 (8th Cir.1981). While justice does not demand errorless representation, People v. Velasquez, 641

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P.2d 943 (Colo.), cert. denied, 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982), attorneys must satisfy minimal standards of competency to render effective and, therefore, constitutionally acceptable representation. Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. As noted in Strickland, Lockhart and Hutchinson, the conduct of attorneys must by necessity be considered on a case-by-case basis in light of objective standards of minimally acceptable levels of professional performance prevailing at the time of the challenged conduct. The duty of counsel is, in essence, the duty to act as any reasonable attorney would act in the same circumstances. Thus, questions regarding the type of conduct or communication required of an attorney representing a client can rarely be answered by abstract concepts. See Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. From this perspective, it is not surprising that courts considering the issue of whether defense counsel has a duty to advise alien clients of potential deportation consequences have reached conflicting results. ⁵ Compare People v. Padilla, 151 Ill.App.3d 297, 104 Ill.Dec. 522, 502 N.E.2d 1182 (1986) (failure to advise of deportation consequences constitutes ineffective assistance of counsel), appeal denied, 114 Ill.2d 554, 108 Ill.Dec. 423, 508 N.E.2d 734 (1987) and Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982) (counsel has a duty to inquire into and advise alien defendant of possible deportation consequences) with Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972) (alien defendant received effective assistance of counsel despite counsel's failure to advise of deportation consequences), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973) and State v. Ginebra, 511 So.2d 960 (1987) (counsel's failure to advise client of the collateral consequence of deportation does not constitute ineffective assistance of counsel) and Mott v. State, 407 N.W.2d 581 (Iowa 1987) (failure to advise alien defendant of collateral consequences cannot provide basis for a claim of ineffective assistance of counsel).

We are not prepared to state in absolute terms, as did the Court of Appeals, that an attorney has a duty to advise an alien client of the possible deportation consequences of a guilty plea. Nor can we conclude, as the trial court did, that an attorney has...