Salayes-Araiza v. State

Decision Date28 November 2016
Docket NumberNO. CAAP-15-0000934,CAAP-15-0000934
PartiesEDELMIRA SALAYES-ARAIZA, Petitioner-Appellant, v. STATE OF HAWAI'I, Respondent-Appellee
CourtHawaii Court of Appeals

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(S.P.P. NO. 15-1-0007(1) (CR. NO. 14-1-0162(1)))

MEMORANDUM OPINION

(By: Nakamura, Chief Judge, and Foley and Fujise, JJ.)

Petitioner-Appellant Edelmira Salayes-Araiza (Salayes-Araiza) appeals from the order of the Circuit Court of the Second Circuit (Circuit Court)1 denying her petition for post-conviction relief without a hearing. Respondent-Appellee State of Hawai'i (State) concedes that the Circuit Court erred in denying Salayes-Araiza's petition without a hearing. We agree with the State's concession of error, vacate the Circuit Court's order, and remand the case for an evidentiary hearing on Salayes-Araiza's petition.

BACKGROUND
I.

Salayes-Araiza is not a citizen of the United States. In 2014, the State charged Salayes-Araiza with first-degree theftby deception of more than $20,000 in public assistance benefits, in violation of Hawaii Revised Statutes (HRS) § 708-830.5(1)(a) (2014)2 (Count 1); and welfare fraud, in violation of HRS § 346-34(b) and/or (c) (2015) (Count 2). Salayes-Araiza, represented by a Deputy Public Defender (DPD), pleaded no contest to both counts. On January 2, 2015, the Circuit Court sentenced Salayes-Araiza to concurrent terms of five years of probation on Count 1 and one year of probation on Count 2. Salayes-Araiza did not file a direct appeal from her judgment of conviction and sentence.

On April 13, 2015, after the time for a direct appeal had run, Salayes-Araiza was taken into custody by Immigration and Customs Enforcement officials, and the United States Department of Homeland Security initiated proceedings to remove her from the United States. The United States charged, in relevant part, that Salayes-Araiza was subject to removal pursuant to

Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in section 101(a)(43)(M) of the Act, a law relating to an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000[.]
II.

In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court held that where "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for [a defendant's] conviction," the defendant's counsel has the duty to give correct advice regarding the deportation consequence of the conviction, and counsel's failure to do so may entitle the defendant to post-conviction relief based on a claim of ineffective assistance of counsel. Padilla, 559 U.S. at 368-69. The Court concluded that "constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation." Id. at 360.

III.

On May 22, 2015, Salayes-Araiza, through retained counsel, filed a petition for post-conviction relief pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2006). In her petition, Salayes-Araiza alleged that the DPD, her former lawyer, provided ineffective assistance by failing to properly advise her of the immigration consequences of her no-contest pleas. In particular, the petition alleged that the DPD "did not tell her that it would be near certain that she would be deported as there are no forms of immigration relief once convicted of theft in the first degree where the amount of loss is more than $10,000.00"

Salayes-Araiza submitted a Declaration in support of her petition. In her Declaration, Salayes-Araiza asserted that "[m]y criminal defense attorney did not advise, me of any possible immigration consequences of [my no-contest pleas]." She stated that "[h]ad I been advised of the immigration consequences, I would not have pled no contest and would have presented my defenses at trial." She further stated that "I am in custody of Department of Homeland Security, placed in removal proceedings before an Immigration Judge. . . . I was never advised by my criminal defense attorney that [my] convictions will result in mandatory custody and [I] will have no relief under the immigration laws."

Salayes-Araiza's HRPP Rule 40 counsel also submitted a Declaration. In his Declaration, HRPP Rule 40 counsel stated that he had spoken to the DPD and that the DPD told him that the DPD

was not aware and did not advise [Salayes-Araiza] that theft [of] over $10,000 constituted [an] aggravated felony under the immigration code. [The DPD] also stated that he was not aware that removal was certain and therefore did not explain this to [Salayes-Araiza].

HRPP Rule 40 counsel represented that he would subpoena the DPD if the Circuit Court held an evidentiary hearing.

IV.

On November 19, 2015, the Circuit Court denied Salayes-Araiza's petition without a hearing and issued its "Findings of Fact, Conclusions of Law, and Order Dismissing Petition to Vacate, Set Aside or Correct Illegal Sentence Through a Writ of Habeas Corpus Pursuant to H.R.P.P. Rule 40" (Order Dismissing Petition). In the Order Dismissing Petition, the Circuit Court concluded that Salayes-Araiza had waived her claim of ineffective assistance of counsel by failing to previously raise it, including at trial or on appeal. The Circuit Court further concluded that even if Salayes-Araiza had not waived her claim of ineffective assistance, she failed to state a colorable claim for relief. The Circuit Court's conclusion that Salayes-Araiza failed to state a colorable claim for relief was based on its assumption that neither of her convictions was an aggravated felony under the immigration laws. Based on this assumption, the Circuit Court concluded that the immigration consequences of Salayes-Araiza's no-contest pleas were unclear and that it seemed she could be eligible for cancellation of deportation at the discretion of the Attorney General. Because it concluded that Salayes-Araiza had waived her claim of ineffective assistance of counsel and had failed to state a colorable claim for relief, the Circuit Court denied Salayes-Araiza's petition without a hearing.

DISCUSSION

On appeal, Salayes-Araiza argues that the Circuit Court erred in concluding that she waived her right to assert a claim of ineffective assistance of counsel. She further argues: (1) that the Circuit Court erred in concluding that her conviction for first-degree theft by deception was not an aggravated felony under the immigration laws; and (2) that this erroneous conclusion led to the Circuit Court's erroneous ruling that Salayes-Araiza had failed to state a colorable claim of ineffective assistance of counsel. Salayes-Araiza requests that we vacate the Order Dismissing Petition and remand the case for an evidentiary hearing on her ineffective assistance of counsel claim.

The State concedes error on the points raised by Salayes-Araiza. As explained below, we agree with the State's concession of error.

I.

Salayes-Araiza argues that the Circuit Court erred in concluding that she waived her right to assert a claim of ineffective assistance of counsel. Salayes-Araiza contends that the Circuit Court based its waiver decision on Salayes-Araiza's mistake in labeling her petition as a petition to vacate, set aside, or correct an illegal sentence, rather than one to vacate or set aside her judgment of conviction. Although we disagree with Salayes-Araiza's characterization of the basis for the Circuit Court's waiver decision, we agree that the Circuit Court erred in ruling that she waived her right to assert a claim of ineffective assistance.

HRPP Rule 40(a)(3) provides:

INAPPLICABILITY. Rule 40 proceedings shall not be available and relief thereunder shall not be granted where the issues sought to be raised have been previously ruled upon or were waived. Except for a claim of illegal sentence, an issue is waived if the petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this rule, andthe petitioner is unable to prove the existence of extraordinary circumstances to justify the petitioner's failure to raise the issue. There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

(Emphasis added.) The Circuit Court's references to the mislabeling of the title of Salayes-Araiza's petition as one seeking relief for an illegal sentence was to make clear that the illegal-sentence exception to waiver in HRPP Rule 40(a)(3) did not apply. The Circuit Court did not conclude that Salayes-Araiza had waived her ineffective assistance claim because she mislabeled her petition. Instead, the Circuit Court ruled that she waived her claim by failing to previously raise it.

We conclude that the Circuit Court erred in ruling that Salayes-Araiza had waived her claim of ineffective assistance by failing to previously raise it. The instant petition is the first HRPP Rule 40 petition filed by Salayes-Araiza, and it was filed shortly after she was taken into custody for removal proceedings. As the State acknowledges, Salayes-Araiza "essentially asserts that she did not know that [the DPD] had provided faulty advice" until she was taken into custody in April 2015 for removal proceedings and discussed her situation with new counsel. By this time, the deadline for filing a direct appeal had already passed. The DPD, the person who allegedly provided the ineffective assistance, or other members of the Public Defenders Office would presumably have been the ones responsible for advising Salayes-Araiza about a direct appeal. Under these circumstances, we agree with the...

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