State v. Gallegos-Delgado
| Decision Date | 07 December 2016 |
| Docket Number | NO. 34,321,34,321 |
| Citation | 392 P.3d 200 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Manuel GALLEGOS-DELGADO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee.
L. Helen Bennett, P.C., L. Helen Bennett, Albuquerque, NM, for Appellant.
{1} Defendant Manuel Gallegos-Delgado is an undocumented immigrant who pled guilty to drug possession and driving while under the influence of alcohol in exchange for the State agreeing not to oppose a conditional discharge of the drug charge. Federal removal proceedings were then initiated against Defendant, pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 -1537 (2012), and he was permanently deported. Defendant subsequently filed a motion to withdraw his guilty plea, arguing that his attorney had only advised him that a possible consequence of pleading guilty would be deportation, not that he would be barred re-entry into the United States forever. The district court's denial of Defendant's motion to withdraw his plea is the subject of this appeal. The question presented to this Court is whether Defendant's attorney rendered deficient representation by failing to advise him of the specific immigration consequences that would follow as a result of his guilty plea, and if so, whether Defendant was prejudiced by her deficient performance. We answer these questions in the affirmative and, accordingly, reverse and remand.
{2} On May 30, 2013, Defendant pleaded guilty to possession of cocaine and driving while under the influence of alcohol in exchange for dismissal of other charges against him and a probated sentence. Part of the plea agreement was that the State would not oppose a conditional discharge of the possession charge. After pleading guilty, Defendant received a conditional discharge of the possession charge, was placed on supervised probation, and received a deferred sentence. At the plea and sentencing hearing, during the plea colloquy, the district court judge inquired as to whether there were any immigration issues, and Defendant's attorney said she "explained [the] immigration consequences for [Defendant and the] possibility of deportation" and that he had consulted with an immigration attorney. The judge then specifically asked Defendant if his attorney had explained the immigration consequences of entering the guilty plea and that he may be deported. Defendant said that she had and that he nevertheless wanted to go forward with the plea. Defendant additionally stated that he had an opportunity to discuss the terms and conditions of the plea agreement with a separate immigration attorney. The judge explained to Defendant that if he successfully completed the terms of his probation, the possession charge would be discharged and he would no longer have it on his record. Of note, a conditional discharge operates like a conviction under federal immigration law, see 8 U.S.C. § 1101(48)(A), unlike in New Mexico, where a conditional discharge is not an adjudication of guilt. NMSA 1978, § 31-20-13(A) (1994).
{3} Defendant subsequently violated the terms of his probation, and the State moved to revoke Defendant's probation. The district court appears to have retracted the conditional discharge for the possession charge, and an amended judgment and sentence was entered on November 20, 2013.
{4} Because Defendant violated New Mexico law, he was subject to deportation under the INA. See 8 U.S.C. §§ 1182(a)(2)(A), 1226(a)(1), 1227(a)(1)(B). On November 25, 2013, Defendant was taken into custody by the Department of Homeland Security (DHS), and removal proceedings were initiated against him. An Immigration Judge (IJ) determined that Defendant was ineligible for cancellation of removal and adjustment of status under the INA because of his possession conviction. The IJ also denied Defendant's request for voluntary removal because Defendant's controlled substance conviction prohibited Defendant from ever lawfully returning to the United States.
{5} Defendant then filed a motion for relief from judgment and to withdraw his guilty plea. In the motion, Defendant alleged that he was not advised that he would be deported as a result of his guilty plea and stated that he would not have entered into the plea agreement if he had known the specific immigration consequences of his plea. The district court held a hearing on the motion on October 20, 2014. At the hearing, Defendant testified that he had already been deported and he was currently in the custody of the United States Immigrations and Customs Enforcement (ICE). Defendant further testified that he would not have entered the guilty plea had he known all the immigration consequences. On cross-examination, Defendant admitted that his attorney told him he "would" be deported, despite asserting in an affidavit she said he "might" be deported. On re-direct, Defendant confirmed that he knew he was going to be deported but said he did not know about the other immigration consequences that would result from the plea, such as being forbidden from ever returning to the United States. During his testimony, Defendant clarified that he never had actually hired an immigration attorney; he had only spoken to one briefly on the phone, and she had not discussed the specific consequences that might emerge from pleading guilty because she had not reviewed his case.
{6} Defendant's trial attorney, who had since withdrawn as Defendant's counsel, also testified at the hearing, and she said that the evidence against Defendant was "strong" and he was "adamant" in taking the plea. Furthermore, she testified that she specifically told Defendant that the conditional discharge "would not have the same effect with immigration" as it would with other clients. However, she could not remember the exact language she used and whether she told Defendant "he would most definitely, to a certainty, be deported" or whether he "can be deported." The following is additional relevant testimony from Defendant's trial attorney, Courtney Aronowsky, at the hearing:
{7} Ultimately, the district court denied Defendant's motion, finding that Defendant had been advised of the consequences of entering the guilty plea and that there was no evidence Defendant had wanted to go to trial. The district court also found that "[D]efendant's trial counsel was not deficient in her representation[,]" and that the "record fails to provide any proof that [D]efendant was either leaning toward trial by any pre-conviction statements or actions, or that it was a viable option he was considering." This appeal followed.
{8} We begin by addressing whether this Court has jurisdiction in the present matter. We conduct our review of the jurisdictional issue de novo. State v. Gutierrez , 2016–NMCA–077, ¶ 17, 380 P.3d 872. Defendant requested appellate relief under Rule 1-060(B)(4) NMRA, which is the proper procedural mechanism for a person no longer in state custody to appeal an allegedly void judgment. See State v. Tran , 2009–NMCA–010, ¶ 16, 145 N.M. 487, 200 P.3d 537. We have previously held that this Court has jurisdiction when a defendant wishes to "challenge his underlying criminal conviction when in the custody of ICE" if the Defendant has filed a Rule 1-060(B)(4) motion. State v. Favela , 2013–NMCA–102, ¶ 11, 311 P.3d 1213, aff'd , 2015–NMSC–005, 343 P.3d 178 (Favela II ). Although a conditional discharge is not a conviction under New Mexico law, see § 31-20-13(A) ; State v. Harris , 2013–NMCA–031, ¶ 6, 297 P.3d 374, it has that effect under federal immigration law when an alien has pled guilty and a judge has ordered some type of punishment, even if a formal adjudication of guilt has been withheld. 8 U.S.C. § 1101(48)(A).
{9} Defendant was in ICE custody at the time he filed this appeal and alleges that the judgment entered against him is void. Because Defendant's guilty plea to the possession charge operated as a conviction under federal law and was thus the basis for the IJ finding that he was ineligible for cancellation of removal, adjustment of status, voluntary removal, and that Defendant could never lawfully return to the United States, we conclude that this Court has jurisdiction pursuant to Rule 1-060(B).
{10} Defendant claims that the district court abused its discretion in denying his motion to withdraw his guilty plea because his attorney rendered deficient representation by not advising him of the specific immigration consequences and, as a result, he was prejudiced. A district court's denial of a defendant's motion to withdraw a guilty plea is reviewed for abuse of discretion. State v. Tejeiro , 2015–NMCA–029, ¶ 4, 345 P.3d 1074, cert. denied , 2015–NMCERT–005, 367 P.3d 440. An abuse of discretion happens "when a district court's ruling...
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State v. Vazquez (In re Vazquez)
... ... Manuel Torres pled guilty to possession of cocaine and robbery. Because of the nature of the convictions, counsel held an obligation to inform Torres that deportation was a virtual certainty. In State v ... Gallegos-Delgado , 2017-NMCA-031, 392 P.3d 200, the New Mexico Court of Appeals held that plea counsel failed to properly advise her client of mandatory deportation upon pleading guilty to possession of cocaine. According to New Mexico's extension of Padilla v ... Kentucky dogma, defense attorneys must advise ... ...
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State v. Tarango, A-1-CA-35443
...2001-NMSC-013,¶ 16, 130 N.M. 179, 21 P.3d 1032. "This right extends to plea negotiations." State v. Gallegos-Delgado, 2017-NMCA-031, ¶ 11, 392 P.3d 200. For a guilty plea to be valid, it "must be voluntary and intelligent." Id. "If a defendant pleads guilty based on the advice of his or her......
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State v. Morales
...¶ 16, 130 N.M. 179, 21 P.3d 1032. "This right extends to plea negotiations." State v. Gallegos-Delgado, 2017-NMCA-031, ¶ 11, 392 P.3d 200; see Patterson, 2001-NMSC-013, ¶ 16 ("Effective assistance of counsel is necessary during plea negotiations because the most important decision for a def......
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State v. Haidari
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