State v. Gutierrez

• Decision Date: 03 December 2021
• Docket Number: No. 122,585,122,585
• Citation: 499 P.3d 512 (Table)
• Parties: STATE of Kansas, Appellee, v. Saul GUTIERREZ, Appellant.
• Court: Kansas Court of Appeals

499 P.3d 512 (Table)

STATE of Kansas, Appellee,

v.Saul GUTIERREZ, Appellant.

No. 122,585

Court of Appeals of Kansas.

Opinion filed December 3, 2021.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Buser, J., and Walker, S.J.

MEMORANDUM OPINION

Buser, J.:

This is an appeal by Saul Gutierrez of the district court's denial of his postsentencing motion to withdraw plea. Gutierrez contends his court appointed attorney provided ineffective assistance of counsel by misleading him regarding the immigration consequences of pleading no contest to aggravated battery. Gutierrez, who is facing deportation, claims he was prejudiced as a result.

After an evidentiary hearing on the motion, the district court made extensive and detailed findings of fact and conclusions of law. The district court ruled that Gutierrez' attorney had competently represented his legal interests and that Gutierrez was not prejudiced by his attorney's conduct. Accordingly, the district court determined that Gutierrez had not established manifest injustice to justify the postsentence withdrawal of his no contest plea. Finding no abuse of discretion, we affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On November 7, 2016, the State charged Saul Gutierrez with aggravated indecent liberties with a child and rape. These charges were the result of allegations that while at his residence in February 2016, Gutierrez lewdly fondled two minor girls while their mother and aunt were away. The State subsequently amended the complaint, deleting the rape count and adding a second aggravated indecent liberties with a child charge. In April 2018, Gutierrez' first trial ended in a mistrial when, during voir dire, jurors observed that Gutierrez was wearing a house arrest bracelet.

On December 10, 2018, the first day of his second trial, Gutierrez entered into a plea agreement wherein he agreed to plead no contest to a single amended count of aggravated battery, a severity level 5 person felony, in violation of K.S.A. 2015 Supp. 21-5413(b)(2)(A). In return, the State agreed to dismiss the remaining count and to allow Gutierrez to seek a durational departure and dispositional departure to probation.

The plea agreement was memorialized in a petition to enter plea of no contest (plea petition) filed with the court clerk. The plea petition, typewritten in both English and Spanish, included the following paragraph regarding the potential immigration consequences of the plea:

"Deportation Consequences . Defendant recognizes that pleading ‘No Contest’ may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense (s ) to which defendant is pleading ‘No Contest .’ Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead ‘No Contest’ regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States. " (Emphases added.)

The plea petition was signed and sworn to by Gutierrez. Among the other representations he made in the pleading, Gutierrez stated that he understood fully "that the court may impose any sentence within the statutory limits and grant or deny probation independently of the agreement between the District Attorney, my attorney, and myself." Moreover, Gutierrez stated: "I ... offer my plea of 'No Contest' with full understanding of all the matters set forth in the Information and in this petition." His attorney, Charles Lamb, signed a certificate of counsel that he had made no predictions or promises to Gutierrez regarding any sentence the district court may impose.

At the plea hearing, the district court asked Gutierrez if he understood the plea petition and Gutierrez stated he did. The district court asked Gutierrez whether he understood that he may not receive probation if he accepted the plea agreement, and Gutierrez stated he understood that possibility and he had not been promised probation by his attorney. Similarly, Gutierrez denied that he had been threatened or pressured to enter the no contest plea. Finally, the district court asked Gutierrez if he was satisfied with Lamb's legal representation, and Gutierrez stated he was. Gutierrez then pled no contest to aggravated battery. The district court accepted Gutierrez' plea and found him guilty of the charge.

Prior to sentencing, Gutierrez filed a motion for both a dispositional and durational departure sentence. In support, Gutierrez explained that he was 71 years old, had Parkinson's disease

, and stage IV prostate cancer. Gutierrez stated that he was receiving ongoing cancer treatment and was scheduled for another surgery in the near future. As a result, Gutierrez requested a departure sentence to probation.

A presentence investigation (PSI) report calculated Gutierrez' criminal history score as A. The PSI stated that Gutierrez was a United States citizen, and he possessed a Social Security number. Relevant to the issue on appeal, however, Gutierrez is not a United States citizen but a lawful permanent resident.

Sentencing was on February 15, 2019. At the outset, the district court denied Gutierrez' request for a dispositional departure to probation. But the district court granted a downward durational departure, sentencing Gutierrez to 100 months' imprisonment, which was less than the presumptive 122-to-136-month term.

Six days after sentencing, on February 21, 2019, Gutierrez filed a pro se motion to withdraw his plea, alleging that Lamb threatened him into entering a plea, lied to him about "fake" witnesses, and made sexual advances towards his sister. Thereafter, Gutierrez retained a new attorney, Michael Duma.

In 2019, the United States Immigration Control Enforcement filed a detainer to hold Gutierrez for future deportation. On October 29, 2019, Duma filed a second motion to withdraw Gutierrez' plea. The motion alleged that Gutierrez' prior counsel, Lamb, was ineffective for misleading him regarding the immigration consequences of his plea.

On November 14, 2019, the district court held an evidentiary hearing on Gutierrez' second motion to withdraw plea. The motion—which is the subject of this appeal—was limited to the issue of Lamb's alleged ineffective assistance regarding the immigration issue.

At the hearing, both Gutierrez and Lamb testified. Gutierrez testified that he told Lamb that he was legally in the United States and had served in the United States military. Gutierrez also testified that he never told his attorney or the individual who prepared the PSI that he was a United States citizen. Additionally, Gutierrez testified that Lamb did not discuss the immigration impacts of his plea and did not review with him the paragraph in the plea petition regarding the deportation consequences of his plea. As a result, Gutierrez testified that he did not believe there were any deportation risks associated with entering his no contest plea. Moreover, Gutierrez testified that he would not have entered the plea had he known it would subject him to deportation.

For his part, Lamb testified he assumed that Gutierrez was a United States citizen based on Gutierrez' representations that he was "legal" and had served in the military. Accordingly, the attorney testified that he did not spend significant time discussing the deportation consequences of the plea. Contrary to Gutierrez' testimony, however, Lamb said he did, in fact, discuss the Deportation Consequences provision in the plea petition, albeit in a more limited way than he would have had he known Gutierrez was not a United States citizen. Rather than reviewing the provision word-for-word, the attorney testified he remembered telling Gutierrez that upon his plea, "If you have an issue, you could be deported."

After taking Gutierrez' motion to withdraw plea under advisement, on November 14, 2019, the district court denied the motion in a bench ruling. The district court's oral findings of fact and conclusions of law were extensive and detailed—comprising 29 transcript pages. A written order denying Gutierrez' motion for failure to show manifest injustice was also filed.

According to the district court, its ruling denying the motion was predicated on three factors. First, and central to the district court's finding that Lamb did not provide ineffective assistance, was that Lamb reasonably believed Gutierrez was an American citizen. As the district court explained:

"[T]he only fact in the defendant's favor is that he told Lamb that he was in Mexico. All other facts supported that Lamb was reasonable in his belief the defendant was a US citizen. Defendant's English was good. And while the defendant had an interpreter, it was made clear at the hearing on his motion to withdraw a plea that he did not need an interpreter. Moreover, this Court recalls hearings in which the defendant had an interpreter, yet he answered the Court's questions in English without the use of an interpreter.

"As already stated, the defendant told Mr. Lamb that he was legally here. In fact, when the defendant found that Lamb had asked his sister about his immigration, he called Mr. Lamb specifically to tell him that he was legally in this country and in the national guard. Mr. Lamb was also aware the defendant had been in the military and used the fact as one reason for requesting the departure.

"The defendant was 71 years old and had been in the country since he was eighteen years of age, according to his testimony.

"According to the PSI in this case, he

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