Perez-Rodriguez v. State

• Decision Date: 28 February 2019
• Docket Number: CC C152724CV (SC S065022)
• Citation: 364 Or. 489,435 P.3d 746
• Parties: Ricardo PEREZ-RODRIGUEZ, Petitioner on Review, v. STATE of Oregon, Respondent on Review.
• Court: Oregon Supreme Court

364 Or. 489
435 P.3d 746

Ricardo PEREZ-RODRIGUEZ, Petitioner on Review,
v.
STATE of Oregon, Respondent on Review.

CC C152724CV (SC S065022)

Supreme Court of Oregon.

Argued and submitted March 7, 2018.
February 28, 2019

Jed Peterson, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.

Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause for respondent on review. Ryan Kahn, Assistant Attorney General, filed the brief. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Justice pro tempore.^**

NELSON, J.

435 P.3d 747

364 Or. 491

Under the Post-Conviction Hearing Act (PCHA), a petition for post-conviction relief must generally be filed within two years of a criminal defendant's conviction becoming final. ORS 138.510(3). That statute of limitations, however, is subject to an escape clause, allowing an untimely petition if the post-conviction court "finds grounds for relief asserted which could not reasonably have been raised" within the limitations period. Id.

We allowed review of two cases—this case, and Gutale v. State of Oregon , 285 Or. App. 39, 395 P.3d 942 (2017) —that require us to interpret the meaning and scope of that escape clause. In both cases, petitioners alleged that their trial counsels were constitutionally ineffective and inadequate under the state and federal constitutions, based on the failure of those attorneys to provide petitioners with information regarding the immigration consequences of their guilty pleas. See Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (requiring counsel to inform a criminal defendant of clear immigration consequences of a plea and, where consequences are not clear, to advise that plea may carry a risk of adverse immigration consequences). And petitioners in both cases alleged that their claims fell within the escape clause because they learned of their counsel's inadequacy only when they were put in deportation proceedings after the statute of limitations had run. Both petitioners argued that they should not have been presumed to know the law any sooner than that.

But there are some differences between the cases. In this case, but not in Gutale , petitioner was told at the time of his plea that there might be immigration consequences to his conviction, even though he was not told that there certainly would be immigration consequences. Compare Gutale v. State of Oregon , 364 Or. 502, 519, 435 P.3d 728 (2019). Additionally, in this case, but not in Gutale , petitioner alleged that his mental illness and intellectual disability prevented him from knowing that he had a claim for post-conviction relief within the two-year limitations period.

The state moved to dismiss, arguing that petitioner could not obtain relief under the escape clause because the

364 Or. 492

laws underlying petitioner's claim were reasonably available to him. The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed without opinion. Perez-Rodriguez v. State of Oregon , 284 Or. App. 890, 393 P.3d 1209 (2017). For the reasons stated below, we affirm the decision of the Court of Appeals and the judgment of the post-conviction court.

We take the historical facts from the allegations in petitioner's pleadings and attachments. See Verduzco v. State of Oregon , 357 Or. 553, 555 n. 1, 355 P.3d 902 (2015) (taking undisputed facts from petitioner's pleadings and attachments). Petitioner is a lawful permanent resident who immigrated to the United States from Argentina in 1977, when he was about six years old. On August 27, 2011, petitioner went to the Emergency Department at Saint Vincent's Hospital in Washington County. He began acting erratically in the waiting room, and ultimately attacked and injured a security guard who was attempting to assist him. When law enforcement arrived and read petitioner his Miranda rights, petitioner said, "I didn't do anything wrong," and, "I hear voices and I wish I wouldn't listen to them."

On January 6, 2012, petitioner pleaded guilty to attempted assault in the second degree, a class C felony. ORS 161.405(2)(C). His plea petition provided:

"12. In addition to the sentence imposed, I understand that there may be other significant consequences if I enter a ‘Guilty’ or ‘No Contest’ plea, including, but not limited to:

"If I am not a United States citizen, deportation/removal, exclusion from future entry into the United States, or denial of naturalization[.]"

An attorney certification on the plea petition stated: "I have explained to my client the maximum penalty and other consequences of entering a guilty or no contest plea, including possible immigration consequences."

At petitioner's sentencing hearing, defense counsel explained to the court that petitioner

435 P.3d 748

"unfortunately has had a long history of suffering from significant mental health problems and on this date was not on his normal,

364 Or. 493

prescribed medication." The trial court ordered a mental health evaluation as a condition of post-prison supervision and strongly encouraged petitioner to stay on his psychiatric medications in the future. The court did not inform petitioner that his conviction could result in potential immigration consequences, as is required under ORS 135.385(2)(d) (requiring court to inform noncitizen defendants who plead guilty that "conviction of a crime may result *** in deportation, exclusion from admission to the United States or denial of naturalization"). Petitioner received a sentence of 36 months in prison, three years of post-prison supervision, and fees. That criminal proceeding was final when the trial court entered the judgment on February 16, 2012.

More than two years later, in June 2014, petitioner received a Notice to Appear from Immigration and Customs Enforcement (ICE). The notice charged petitioner with deportability based on his 2012 conviction for attempted assault, which, according to ICE, constituted an "aggravated felony" conviction under 8 USC § 1227(a)(2)(A)(iii). On August 26, 2014, petitioner was detained by the Department of Homeland Security for purposes of deportation.

Petitioner filed for post-conviction relief in June 2015, approximately 16 months following the expiration of the two-year limitations. In an attached declaration, petitioner stated: "I was not advised [that] there was an immigration hold on me until I was approximately six months from release from prison." Petitioner stated that the only advice that his criminal defense attorney had provided regarding the immigration consequences of his plea was that he should "keep [his] fingers crossed." According to petitioner, he would not have pleaded guilty to attempted assault in the second degree had he known that the resulting conviction would require his deportation from the United States.

Based on those facts, petitioner alleged that his trial counsel had been ineffective and inadequate, in violation of Article I, Section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. In Padilla , the United States Supreme Court held that counsel is constitutionally required to advise a criminal defendant of the clear immigration consequences

364 Or. 494

of a plea. 559 U.S. at 369, 130 S.Ct. 1473 ("[W]hen the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear."). But when the immigration consequence of a plea is not clear, then counsel does not need to do "more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id.

Petitioner alleges that the immigration consequences should have been clear to his trial counsel but that his counsel failed to meet the constitutional requirement, either by giving him "affirmative misadvice," or by failing to inform him that his plea would "require his deportation from the United States."¹ In support of his allegations, petitioner submitted a declaration from his immigration attorney, which stated that petitioner's conviction rendered him automatically removable from the United States and ineligible for almost all forms of relief.

Petitioner acknowledged that his petition for post-conviction relief was untimely. He alleged, however, that his claim fell within the escape clause of ORS 138.510(3) because his mental health conditions interfered with his ability to understand that he had a post-conviction claim. Specifically, petitioner attached a declaration from a clinical social worker, who stated that petitioner has schizoaffective disorder, which may include "hallucinations, paranoia, delusions, and disorganized speech and thinking." The clinical social worker also stated that petitioner has borderline intellectual functioning, which is defined as having a "below...