Rubio v. State
| Decision Date | 30 October 2008 |
| Docket Number | No. 48459.,48459. |
| Parties | Manuela RUBIO, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
This appeal invites the court to consider whether counsel's affirmative misrepresentation regarding the possible immigration consequences of a guilty plea affects the voluntariness of the plea.
Appellant Manuela Rubio entered a guilty plea to battery with the use of a deadly weapon. After Rubio was deported, she filed a postconviction motion to withdraw her guilty plea, claiming the court interpreter misadvised her and that her lawyer failed to meet with her to discuss the guilty plea agreement and plea canvass.
While we reaffirm our decision in Barajas v. State,1 holding that deportation is a collateral consequence that does not affect the voluntariness of a guilty plea, we take this opportunity to recognize that affirmative misrepresentation of immigration consequences by counsel is an exception to that general rule and may provide grounds for attacking the voluntariness of the plea. We reject, however, the application of such a rule to misrepresentations by a court interpreter. Because Rubio failed to allege that her attorney made affirmative misrepresentations regarding immigration consequences, we find no abuse of discretion in the district court's decision to deny her relief on that ground.
However, the district court did not conduct an evidentiary hearing or, in its order, address Rubio's claim that her attorney failed to provide effective assistance. Therefore, the record is insufficient for us to determine if the facts surrounding Rubio's guilty plea substantiate this claim for relief. Accordingly, we affirm the district court's order to the extent that it did not impute the interpreter's alleged misadvice to counsel. But we reverse the district court's order to the extent that it denied Rubio's claims that counsel provided ineffective assistance and remand with instructions to hold an evidentiary hearing on the ineffective assistance of counsel allegations set forth in Rubio's affidavit supporting her motion.
Rubio, a Mexican native and lawful permanent resident of the United States since 1999, resided in Las Vegas with her husband and four minor children. All the children are United States citizens, and the two youngest children, eight-year-old twins, are severely disabled with cerebral palsy and require special care. Rubio's first language is Spanish and, while not fluent, she had some ability to communicate in English.
On September 29, 2005, Rubio, while driving, saw her husband driving with another woman in his car. Rubio rear-ended his car. She was arrested as a result of the collision and charged with one count of battery with the use of a deadly weapon.
The arraignment and guilty plea agreement
On February 13, 2006, just prior to her arraignment, Rubio met with her court-appointed public defender who presented her with a plea agreement, written in English. After meeting with the Spanish-language interpreter, Rubio entered into a guilty plea agreement filed in open court, pleading guilty to the charged offense. In return for Rubio's guilty plea, the State agreed not to oppose probation. The State further agreed that if she received and successfully completed probation, Rubio would be allowed to withdraw her plea and plead guilty to misdemeanor battery with a sentence of credit for time served.
The guilty plea agreement, signed by Rubio, included language regarding possible immigration consequences, specifically:
I understand that as a consequence of my plea of guilty, if I am not a citizen of the United States, I may, in addition to other consequences provided for by federal law, be removed, deported, excluded from entry into the United States or denied naturalization.
Additionally, the plea agreement included the standard language indicating that Rubio and her attorney had discussed all elements of the charge, defenses, and strategies; that she was signing the agreement voluntarily; and that her attorney had "answered all [her] questions regarding the plea agreement and its consequences to [her] satisfaction." Her attorney signed the certificate of counsel stating that he had fully explained the allegations, charge, and penalties to Rubio and that Rubio was competent and understood "the charges and the consequences of pleading guilty."
During the plea canvass, conducted with the assistance of a court interpreter, Rubio told the district court that she understood the guilty plea agreement, which had been read to her in Spanish. Further, Rubio stated that she had discussed the rights she was waiving with her attorney, that she had no questions, and that she had signed the agreement freely and voluntarily. The district court then accepted Rubio's guilty plea, and on April 18, 2006, sentenced her to a prison term of 24 to 60 months, suspended execution of the sentence, and imposed a term of probation for up to 3 years. The district court required, as a condition of probation, that Rubio "comply with all INS directives."
After her conviction, the Immigration & Customs Enforcement Unit (ICE) of the Department of Homeland Security took Rubio into custody, charging her with being removable as an alien convicted of an aggravated felony.2 Rubio was removed to Mexico in January 2007.3
Rubio moves to withdraw her guilty plea
While the proceedings in immigration court were pending, Rubio, with the assistance of new counsel, filed a motion in the district court seeking to set aside her judgment of conviction and withdraw her guilty plea.4 She claimed that she entered into her plea agreement without the effective assistance of counsel and that she did not enter into the agreement voluntarily, resulting in a manifest injustice. In the affidavit supporting her motion, Rubio provided a much different picture of what happened at the arraignment than one would assume from a review of the plea canvass.
Rubio asserted that she met her appointed counsel for the first time just prior to the arraignment, when he presented her with the guilty-plea agreement. Rubio alleged in her affidavit that she never met with or discussed the guilty plea agreement with counsel again prior to her case being called at the arraignment. Rubio alleged that counsel referred her to the court interpreter and that counsel was not present when the agreement was translated. Rubio indicated that because her attorney told her to meet with the interpreter, she believed that the interpreter worked for the court and would provide proper advice. Rubio stated that the interpreter translated only the basic terms of the guilty plea agreement, not the entire document. Rubio did not indicate whether the basic terms translated included the plea agreement's language regarding possible immigration consequences. When Rubio asked the interpreter if she would suffer any immigration consequences by signing the guilty plea agreement, the interpreter allegedly told her that as long as Rubio had her "papers" she need not worry. Rubio also stated she was rushed into signing the agreement and never given time to ask her attorney questions with the aid of the interpreter. Further, Rubio stated that had she had that opportunity, and had she fully understood all the terms and been properly advised of the consequences of the guilty plea agreement, she would not have signed it and she would have proceeded to trial. In her affidavit, Rubio also included information concerning her children's special needs and dependence on Clark County's special education programs to maintain their well-being.
The district court heard arguments from counsel without taking any testimony regarding the allegations included in Rubio's affidavit, and denied the motion stating: (1) it "[couldn't] control what the federal government is doing"; (2) Rubio knew, through the plea memorandum, that "immigration consequences were a part of the plea negotiation for plea"; and (3) "the interpreter can't be ineffective because she might have said something that was incorrect."
Rubio contends that the district court erred in denying her motion to withdraw her plea because it was not entered voluntarily or knowingly. First, Rubio asserts that her plea is invalid because she relied on misinformation regarding possible immigration consequences of the guilty plea, apparently provided by the interpreter, and which her attorney did not address or correct.5 Second, Rubio asserts that she was deprived of her Sixth Amendment right to the effective assistance of counsel when her attorney allegedly instructed her to meet with the Spanish-language interpreter, outside of counsel's presence, to review the agreement, and then did not discuss the agreement with her.6
We take this opportunity to address whether a guilty plea is invalid when a defendant relies on inaccurate information regarding the collateral consequence of deportation in deciding to plead guilty, which is an issue of first impression for this court. We conclude that Rubio is not entitled to withdraw her guilty plea based on inaccurate information provided by a court interpreter. In contrast, we conclude that Rubio's assertions regarding her counsel's alleged ineffective assistance warrant further inquiry by the district court.
Standard of review
This court presumes guilty pleas to be valid, with the defendant bearing the burden to prove that "the plea was not entered knowingly or...
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