State v. Carlos
| Decision Date | 03 October 2006 |
| Docket Number | No. 25,982.,25,982. |
| Citation | 2006 NMCA 141,147 P.3d 897 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Roberto CARLOS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Steven S. Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.
Lilley Law Offices, Lawrence W. Allred, Michael W. Lilley, Las Cruces, NM, for Appellant.
{1} Our Supreme Court has held that a criminal defense attorney must advise his or her client "of the specific immigration consequences of pleading guilty[.]" State v. Paredez, 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799. Defendant appeals the denial of his motion to withdraw his guilty plea, arguing that his plea was involuntary due to ineffective assistance of counsel under the standard enunciated in Paredez. We agree and we reverse for the district court to conduct further proceedings and to determine whether Defendant was prejudiced.
{2} Defendant, a permanent resident alien, was charged with battery against a household member, false imprisonment, and criminal damage to property. See NMSA 1978, § 30-3-15 (2001) (); NMSA 1978, § 30-4-3 (1963) (false imprisonment); NMSA 1978, § 30-15-1 (1963) (). He pleaded guilty to the charges of false imprisonment and battery against a household member. In exchange, the State dismissed the charges of criminal damage to property and the State agreed not to oppose a suspended sentence. The plea agreement contained the following sentence: "I understand that entry of this plea agreement may have an effect upon my immigration or naturalization status." The record does not contain any recitation of the facts underlying the crimes to which Defendant pleaded guilty.
{3} After sentencing, the federal government initiated immigration removal proceedings against Defendant. Defendant then filed a motion to withdraw his guilty plea, asserting that his defense attorney did not inform him of the likelihood of removal if he pleaded guilty to the charge of false imprisonment. The district court denied his motion without an evidentiary proceeding. Defendant appealed. While his appeal was pending, our Supreme Court decided Paredez, which set forth the test for determining whether advice to a defendant regarding immigration consequences is sufficient assistance of counsel. 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799. Based on Paredez, we remanded the case in a memorandum opinion for an evidentiary hearing, instructing the district court to determine whether the standard announced in Paredez was met.
{4} At the evidentiary hearing, Defendant testified that his attorney never discussed the possible immigration consequences of a conviction or guilty plea on the charges against him. He also testified that he did not have time to read the plea agreement before signing it because the judge was going to call his case, so he did not read the sentence in the agreement stating that he understood that the agreement may have an effect on his immigration status. Defendant further testified that he would not have pleaded guilty to the charges had he known that he could have been deported. In addition, he testified that although he was born in Mexico, he was brought to the United States right after his birth, and has lived in the United States all of his life. Further, Defendant also testified to the effect that prior to accepting the plea agreement he told his attorney that he did not commit false imprisonment, but he pleaded guilty because she told him he would just get probation.
{5} The attorney testified that she never would have asked a client to sign a plea and disposition agreement without reading it and that she did not do so in the present case. She testified that through paperwork and discussions with Defendant she learned that he was a Mexican national living in the United States legally, and she testified that she discussed possible immigration consequences with Defendant. More specifically, the testimony was as follows:
[State:] Now, specifically regarding advising clients of immigration consequences, what — do you recall specifically the case of Roberto Carlos and what you talked to him about regarding immigration?
[Attorney:] I gave all of the people who had immigration consequences the same discussion and the same information. Basically the first question after establishing their nationality and whether they were subject to immigration proceedings of any kind, I would ask them, has immigration been in contact with you? Have they sent you a letter? Have they come to your employer? Have they gone to your house? Have they asked to see you? And if they say no, which a majority — a lot of them do, especially who are legal permanent residents, I say well just because nobody has been in touch with you doesn't mean that they won't be. And I explain to them the range of different things that could happen, ranging from a paper review to a case being called in and explaining basically the process all the way through a deportation proceeding.
. . . .
[State:] Now as far as it pertains specifically to Mr. Carlos, do you recall specifically going over those things that you would normally do?
[Attorney:] I can't say when I did it, I can't say what month or what day, but I do know that because he fit into that category of potential immigration issues that he would have gotten my standard discussion and the explanation of what the procedure is.
. . . .
[State:] [D]id you know specifically what immigration consequences Mr. Carlos could be facing or was likely to be facing?
[Attorney:] Well, I think in terms of that you can only speak of likelihood, because nobody knows what immigration is ultimately going to do. There's a lot of factors that add in, in terms of the proceedings per se. I think that the best thing to do, and again this was the policy of the [public defender's] department at the time, to give people the whole gamut of what could be expected and what is likely to happen. Our position was that we would tell everybody as if this was going to go to a full blown immigration case and to advise them what can happen along the way.
{6} On cross-examination, the attorney further testified as follows:
[Defense:] [Y]ou tell everybody, . . . not people here illegally, people in Robert's situation where they are here legally right now but they're not American citizens, what is it you tell every single one of them?
[Attorney:] I tell them that they could be subject to deportation proceedings, that their paperwork or their status is reviewed by immigration, that a decision is made on how to proceed, that more likely than not it ends up in some type of formal proceeding where immigration would look at whether they would be allowed to stay in the United States if there is a conviction of any point. I also go into a brief explanation of what a deportation proceeding involves, I tell people that they're entitled to have an attorney represent them, that that is not our job as public defenders, and that we do not pretend to know immigration law, and that their best advice would be also to consult or to talk with other people regarding that. But there are certain factors that immigration could look at, and that certainly how this case bears out could have an effect on what immigration would ultimately decide.
. . . .
[Defense:] [S]pecific to Robert Carlos, what did you do to determine whether false imprisonment is a crime that subjected him to deportation if he was convicted of it?
[Attorney:] Well, it wasn't a question that I did an individual analysis with anyone because at that time they were deporting people on the basis of felony DUIs, which has since been overturned. We treated everyone the same in the information that we gave. We told them what the consequences were, we told them what a deportation proceeding was about, we told them what their rights were, we told them in so many words about mitigating factors, we told them what we would do and we always left the decision after that to take a plea or go to trial up to the client.
{7} The district court denied Defendant's motion to withdraw his plea. The court found that Defendant's attorney "determined before the plea hearing that defendant was a Mexican national and a lawful permanent resident in the United States" and that the attorney "discussed in detail the defendant's immigration status with him including the consequences of his plea as was her habit in all cases involving aliens."
{8} Defendant appeals, arguing that, in violation of the standard enunciated in Paredez, his attorney failed to tell him of the specific consequences he would face for pleading guilty to false imprisonment or battery on a household member. Therefore, he argues, he received ineffective assistance of counsel, his plea was not knowing and voluntary, and he was prejudiced by the ineffective assistance of counsel. Defendant asserts on appeal that the district court must be reversed, he must be allowed to withdraw his plea agreement, the judgment and order should be vacated, and he should be allowed to proceed to trial.
{9} A motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and we review the trial court's denial of such a motion only for abuse of discretion. The district court abuses its discretion in denying a motion to withdraw a guilty plea when the undisputed facts establish that the plea was not knowingly and voluntarily given.
Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citations omitted). "[T]he abuse-of-discretion standard does not preclude an appellate court from correcting errors premised on the trial court's misapprehension of the law[.]" State v. Barnett, 1998-NMCA-105, ¶ 13, 125 N.M. 739, 965 P.2d 323.
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