State v. Gutierrez

• Decision Date: 27 June 2016
• Docket Number: NO. 33,165,33,165
• Parties: State of New Mexico, Plaintiff–Appellant, v. Mayra Gutierrez, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

380 P.3d 872

State of New Mexico, Plaintiff–Appellant,

v.Mayra Gutierrez, Defendant–Appellee.

NO. 33,165

Court of Appeals of New Mexico.

Filing Date: June 27, 2016

Hector H. Balderas, Attorney General, Yvonne M. Chicoine, Assistant Attorney General, Santa Fe, NM, for Appellant.

Bennett J. Baur, Chief Public Defender, Nicole S. Murray, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

BUSTAMANTE, Judge.

{1} Defendant, who is not a United States citizen, pled guilty to a drug offense. The district court then granted Defendant's motion to withdraw her guilty plea and vacated her conviction on grounds that defense counsel did not advise Defendant of the immigration consequences associated with the plea as required by our Supreme Court in State v. Paredez , 2004–NMSC–036, 136 N.M. 533, 101 P.3d 799, 103 P.3d 799. We affirm.

I. BACKGROUND

{2} On November 7, 2010, Defendant was arrested after entering the United States through the Port of Entry at Columbus, New Mexico with nineteen bricks of marijuana weighing more than twenty-one pounds concealed in her vehicle. At the time of her arrest, Defendant was subjected to an immigration hold. Defendant is a citizen of Mexico, but her father is a United States citizen, and she has two children that are United States citizens as well. Defendant does not speak English and all communications in court took place through an interpreter. Defendant was released after posting bond in the magistrate court and the magistrate judge noted that the “parents will deal with immigration hold.”

{3} After waiving a preliminary hearing, a criminal information was filed in the Luna County District Court charging Defendant with distribution of marijuana (100 pounds or less). The Honorable Gary Jeffreys presided over the proceedings from arraignment through sentencing. At her arraignment on January 27, 2011, Defendant told the district court through an interpreter that the United States Immigration and Customs Enforcement (ICE) was “holding her papers” and asked for assistance in getting her green card released. Defendant's attorney said he would “work with [Defendant] on that.” The bond posted in the magistrate court was continued, and Defendant's conditions of release were amended to allow her to travel outside of Luna County to receive obstetrical care due to problems with her pregnancy.

{4} Trial was set for May 26, 2011. However, the day before the scheduled trial, the parties entered into a plea and disposition agreement in which Defendant agreed to plead guilty to possession of eight ounces or more of marijuana, knowing that it was marijuana. In addition, the parties agreed to an eighteen-month suspended sentence to be served on supervised probation.

{5} During the plea hearing, as the district court sought to ensure that the record indicated a knowing and voluntary plea, there was a discussion between the district court, counsel, and Defendant concerning Defendant's immigration status. When asked by Judge Jeffreys at the plea hearing about the “possibility [of] being deported,” Defendant (as translated) responded: “[Defense counsel] advised me that with respect to this case there was a possibility that I might be deported but it is up to the Immigration and Naturalization Department if I am deported or not.” Defense counsel added:

She understands there's a high likelihood that she will be deported. At least with these charges that she's pleading to, she will get a hearing before the court. Her other children are [United States] citizens and she has some—at least a remote chance—of staying. She understands it's not a great chance.

{6} In response to the district court's question if there was an immigration hold on Defendant, the prosecutor reported that ICE was aware of the plea hearing, but it was not taking Defendant into custody at that time and would summon her to a hearing instead. Defendant was eight months pregnant and ICE was concerned about liability issues associated with a detainee having a baby while in custody. Defense counsel said that ICE technically had a hold on Defendant and that it was relying on the bond posted in the magistrate court to secure her appearance. The district court found that Defendant's guilty plea was freely and voluntarily made, but reserved approving the plea and disposition agreement. At Defendant's request, sentencing was postponed until July 11, 2011.

{7} Defendant's July 11, 2011, sentencing date was continued to July 14, 2011, then to August 15, 2011. When the parties appeared for sentencing on August 15, 2011, Defendant asked for a further continuance because her immigration attorney needed more time “to get her citizenship straightened out.” Defense counsel explained that Defendant was eligible for citizenship because her father was a United States citizen, but her citizenship had not yet been formalized. Defendant told the district court that her immigration attorney had told her the resolution of her immigration status might take “one day or a year.” The State opposed a further continuance because the plea agreement specifically addressed Defendant's lack of citizenship and that Defendant would suffer adverse immigration consequences as a result of her crime.

{8} The district court remarked that resolution of Defendant's citizenship status was material to approval of the plea and disposition agreement because if Defendant was not a United States citizen, it would remand Defendant to ICE for removal and not impose the agreed-upon suspended sentence. The district court agreed to continue sentencing for an additional thirty days and made it clear that if Defendant's citizenship was not resolved by that time, or if Defendant was not a United States citizen, it would reject the plea and disposition agreement unless Defendant agreed to be remanded to ICE.

{9} At the sentencing hearing on September 15, 2011, Defendant's attorney told the district court that Defendant's immigration attorney advised him that as long as Defendant was not sentenced to a term of incarceration, Defendant's conviction should not have a negative impact on her immigration case, but that Defendant needed to understand “there are no guarantees.” When asked, Defendant told the district court that she understood what her attorney had said and that she understood there were no guarantees that she would not be deported. The district court thereupon imposed the suspended sentence agreed upon in the plea agreement, adding that if Defendant was deported, supervised probation would revert to unsupervised probation with the sole condition that Defendant not reenter the United States illegally. The judgment and sentence was filed on October 3, 2011.

{10} Almost nineteen months later, after Defendant had completely served her sentence of probation, she was detained by ICE in El Paso, Texas facing deportation as a result of her conviction. Defendant filed a “motion for relief from judgment and to withdraw plea and request for evidentiary hearing.” Defendant asserted that her trial counsel was ineffective because counsel had not adequately advised her of the immigration consequences of her plea, and as a consequence, her guilty plea was not knowingly, intelligently, and voluntarily made. In pertinent part, Defendant alleged that (1) she only recalled being told that she could possibly be deported as a result of the plea; (2) when the district court asked her if she was aware of the consequences of her guilty plea, she responded that she was told she could possibly face deportation; (3) she did not recall any conversation in which she was informed “with exactitude” that if she entered into the plea agreement and was convicted, she would be removed from the United States and denied discretionary relief during the removal process; (4) her attorney did not recall specifically informing Defendant that she would surely be deported as a result of the guilty plea; and (5) had she known the immigration consequence of her plea agreement, “she would not have entered into the plea agreement.”

{11} Judge Jeffreys having retired, the motion was heard and ruled upon by the Honorable Jennifer DeLaney. In addition, Defendant was represented by new counsel. Hereinafter, we refer to the lawyer who represented Defendant in connection with entry of the plea agreement as “trial counsel” and to Judge Delaney as the “district court.”

{12} At the hearing on Defendant's motion to withdraw the plea on July 15, 2013, trial counsel testified that he remembered that Defendant and her father were in the process of formalizing Defendant's citizenship status, and that he met with Defendant's immigration attorney but he could not remember when. In regard to advising a client about immigration consequences of a guilty plea, trial counsel testified that his practice was to try to be as thorough as possible, but he could not recall specifics of his conversation with Defendant. He could not “recall a specific conversation” in which he advised Defendant “with exactitude that she would be deported, lose her discretionary rights, ... not be able to bond out, [and] not be able to come back to the United States.”

{13} Defendant testified she was being held by ICE at the detention center in El Paso and that an immigration judge told her she was being deported because of her conviction in this case. She remembered going before Judge Jeffreys to plead guilty and a few months later for sentencing. She also remembered speaking to her immigration attorney after pleading guilty because she was told she could become a United States citizen. Defendant testified that she did not recall talking with trial counsel about her immigration status before pleading guilty. However, when asked if trial counsel told her she was going to be deported if she pled guilty, Defendant answered, “absolutely not.”

{14} Defendant argued that case law requires it must be shown on the record “that a defendant is aware, with exactitude, of all immigration...