Ramirez v. State, 33,604.

• Citation: 333 P.3d 240
• Case Date: June 19, 2014
• Court: Supreme Court of New Mexico

333 P.3d 240

Martin RAMIREZ, a/k/a Richard G. Sanchez, Jr., Petitioner–Respondent,
v.
STATE of New Mexico, Respondent–Petitioner.

No. 33,604.

Supreme Court of New Mexico.

June 19, 2014.

[333 P.3d 241]

Gary K. King, Attorney General, William H. Lazar, Assistant Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Dane Eric Hannum, Albuquerque, NM, for Respondent.

Rebecca Kitson Law, Rebecca Kitson, Albuquerque, NM, Christopher N. Lasch, University of Denver Sturm College of Law, Denver, CO, for Amici Curiae, Professors Barbara Bergman, Barbara Creel, Rebecca Kitson, and Jennifer Moore and the National Immigration Project of the National Lawyers Guild.

The Appellate Law Office of Scott M. Davidson, Ph.D., Esq., Scott M. Davidson, Albuquerque, NM, for Amicus Curiae, New Mexico Criminal Defense Lawyers Association.

OPINION
CHÁVEZ, Justice.

{1} In State v. Paredez, 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799, we held that a criminal defense attorney who represents a noncitizen client “must advise that client of the specific immigration consequences of pleading guilty” to pending charges. An attorney's failure to do so will be ineffective assistance of counsel if the client is prejudiced. Id. Ramirez pleaded guilty in 1997 and now asserts that his attorney did not advise him about any immigration consequences of his pleas. The question in this case is whether our holding in Paredez applies retroactively and, if it does, whether Ramirez has a claim for ineffective assistance of counsel that could justify withdrawal of his pleas.

{2} We hold that Paredez applies retroactively to 1990, the year that this Court began to prohibit courts from accepting a guilty plea from a defendant without fulfilling the following requirements: the court must (1) ascertain that the defendant understood that a conviction may have an effect on the defendant's immigration status; (2) obtain an affidavit from the defendant that the judge personally advised the defendant of the possible effect of a conviction on the defendant's immigration status; and (3) obtain a certification from the defendant's attorney that the attorney had conferred with the defendant and explained in detail the contents of the affidavit signed by the defendant. SeeForm 9–406 NMRA (1990); Rule 5–303(E)(5) NMRA (1990); Rule 6–502(D)(2) NMRA (1990); Rule 7–502(E)(2) NMRA (1990); & Rule 8–502(D)(2) NMRA (1990). These requirements were not new in 1997 at the time Ramirez pleaded guilty, and they were “designed to ensure a guilty plea is made knowingly

[333 P.3d 242]

and voluntarily.” See State v. Garcia, 1996–NMSC–013, ¶ 8, 121 N.M. 544, 915 P.2d 300 (stating that “New Mexico has long recognized that for a guilty plea to be valid it must be knowing and voluntary”).

BACKGROUND

{3} On January 4, 1997, Martin Ramirez was arrested and charged with possession of up to one ounce of marijuana and two other misdemeanors, contrary to NMSA 1978, Section 30–31–23(B)(1) (1990, amended 2011) (possession of up to one ounce of marijuana); NMSA 1978, Section 30–31–25.1 (1981, amended 2001) (possession of drug paraphernalia); and NMSA 1978, Section 30–22–3 (1963) (concealing identity), respectively. He appeared in metropolitan court for a custody arraignment two days later and pleaded guilty to all three charges on the advice of his public defender. In 2009, Ramirez learned that his guilty pleas in 1997 rendered him “inadmissable to the United States.” ¹ Ramirez filed a petition for writ of error coram nobis in the district court, seeking to vacate his metropolitan court guilty pleas on the basis of ineffective assistance of counsel. Ramirez's undisputed contentions are that he first met with his attorney right before his arraignment and that the attorney advised him that if he pleaded guilty to the charges, which he did, his sentence would be to time already served. Also apparently uncontested is Ramirez's assertion that his attorney never advised him about any immigration consequences of his guilty pleas, which was in direct conflict with the requirement that Form 9–406 (1990) be completed by the judge, the defendant, and the defendant's attorney if the defendant was represented by counsel. Form 9–406(9) (1990) required the judge to certify nine facts, including “[t]hat the defendant understands that a conviction may have an effect upon the defendant's immigration or naturalization status.” Form 9–406 (1990) also required the defendant as an affiant to certify under oath that the judge had so advised the defendant. Finally, Form 9–406 (1990) required the defendant's attorney to certify “that [the attorney] has conferred with [the attorney's] client with reference to the execution of [the] affidavit and that [the attorney] has explained in detail its contents.”

{4} We cannot determine from the record before us whether Form 9–406 (1990) was filed in this case because Ramirez's case files from both the metropolitan court and the public defender department were destroyed prior to the present appeal. Nonetheless, we presume that guilty plea Form 9–406 (1990) was properly utilized. See Doe v. City of Albuquerque, 1981–NMCA–049, ¶ 8, 96 N.M. 433, 631 P.2d 728 (“[W]e will indulge all presumptions in favor of the correctness of the procedures in the trial court.”).

{5} During the hearing regarding Ramirez's petition to set aside his guilty pleas, Ramirez's counsel stated that had Ramirez known about the immigration consequences of his guilty pleas, “he would not have taken that step at that point.” The Court stated that all parties were in agreement regarding Ramirez's contentions, and the State did not disagree. The court accepted as true Ramirez's allegation that he would not have entered guilty pleas in his misdemeanor charges had his attorney advised him of the immigration consequences. However, the court denied Ramirez's writ, reasoning that Paredez did not apply retroactively.

{6} On appeal, the Court of Appeals held that Paredez and its federal corollary, Padilla v. Kentucky, 559 U.S. 356, 359–60, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (holding that the Sixth Amendment guarantee of effective assistance of counsel requires a defendant's attorney to advise the defendant that pleading guilty to charges of transporting

[333 P.3d 243]

marijuana would result in deportation), apply retroactively in the State of New Mexico. State v. Ramirez, 2012–NMCA–057, ¶ 16, ––– N.M. ––––, 278 P.3d 569. We granted the State's petition for writ of certiorari. Since we granted the State's petition, the United States Supreme Court filed its opinion in Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), which stated that its holding in Padilla should not apply retroactively in federal courts because Padilla announced a new rule of criminal procedure. Id. at ––––, 133 S.Ct. at 1107–08. We decline to follow Chaidez and we affirm the Court of Appeals because since 1990, the New Mexico Supreme Court rules and forms have required an attorney to certify having engaged the client in detail in a guilty plea colloquy that included immigration consequences. Because the requirements that Form 9–406 imposes are not new in New Mexico, our holding in Paredez imposing requirements that were effective in 1990 applies retroactively to 1990, the adoption date of the Form 9–406 amendment that required a defendant to understand the possible immigration consequences of a plea conviction.

DISCUSSION

{7} In Paredez, we held that criminal defense attorneys must determine the immigration status of their clients and must advise the client who is not a United States citizen specifically regarding the immigration consequences of a guilty plea, including whether the guilty plea is virtually certain to result in the client's deportation. 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799. Three key reasons motivated our holding. First, “[d]eportation can often be the harshest consequence of a non-citizen criminal defendant's guilty plea, so that ‘in many misdemeanor and low-level felony cases ... [he or she] is usually much more concerned about immigration consequences than about the term of imprisonment.’ ” Id. ¶ 18 (second alteration and omission in original) (quoting Jennifer Welch, Comment, Defending Against Deportation: Equipping Public Defenders to Represent Noncitizens Effectively, 92 Cal. L.Rev. 541, 545 (2004)). Second, “requiring ... such advice is consistent with the spirit of [the 1992 predecessor to Rule 5–303(E)(5) ], which prohibits the district court from accepting a guilty plea without first determining that the defendant has an understanding of the immigration consequences of the plea.” Paredez, 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799. Forms 9–406 (applicable to the district courts) and 9–406A NMRA (applicable to magistrate, metropolitan, and municipal courts) are used in New Mexico courts in the course of accepting a guilty plea. SeeRules 5–303(E)(5), 6–502(D)(2), 7–502(E)(2), & 8–502(D)(2) (predicating acceptance of a guilty plea by a district, magistrate, metropolitan, or municipal court, respectively, on...