State v. Martinez-Lazo

Decision Date23 May 2000
Docket NumberNo. 18297-5-III.,18297-5-III.
PartiesSTATE of Washington, Respondent, v. Jose MARTINEZ-LAZO, aka Jose Antonio Martinez Coach, Appellant.
CourtWashington Court of Appeals

Nicholas W. Marchi, Carney & Marchi, Seattle, for Appellant.

Lauri M. Boyd, Deputy Prosecuting Attorney, Yakima, for Respondent.

MUNSON, J.P.T.1

Jose Martinez-Lazo pleaded guilty to one count of third degree child molestation. Because of his guilty plea, the Immigration and Naturalization Service initiated removal proceedings against him to deport him to Mexico. Mr. Martinez-Lazo moved to withdraw his guilty plea, and the trial court denied his motion. Mr. Martinez-Lazo appeals, contending he was denied effective assistance of counsel because his trial attorney failed to move to suppress his allegedly inculpatory statements under the Vienna Convention on Consular Relations, and because his counsel did not warn him of the deportation consequences of pleading guilty. We affirm.

FACTS

Jose Martinez-Lazo, a citizen of Mexico, is a permanent resident of the United States and has lived here since 1990. In 1996, he was charged with one count of rape of a child in the third degree. In January 1998, Mr. Martinez-Lazo pleaded guilty to one count of third degree child molestation pursuant to a plea agreement, and he received a standard range sentence. Paragraph 4(f) of the plea form stated "a plea of guilty to an offense punishable as a crime under state law may be grounds for deportation...." At the plea hearing, the trial court engaged in a colloquy with Mr. Martinez-Lazo. During the colloquy, Mr. Martinez-Lazo stated he had discussed the plea statement with his counsel, he understood it and he signed it voluntarily.

In October 1998, the Immigration and Naturalization Service initiated removal proceedings against him based on his conviction, and the immigration judge entered a removal order. In view of the removal order, Mr. Martinez-Lazo filed a motion to withdraw his guilty plea and vacate the judgment. Mr. Martinez-Lazo claimed his plea was involuntary. He also claimed his trial counsel ineffectively represented him because counsel did not move to suppress allegedly incriminating statements he made to law enforcement officials. Mr. Martinez-Lazo has not made those statements part of the record.

Mr. Martinez-Lazo received the Miranda warnings before he spoke with the police. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)

.

After a hearing on the matter, the trial court denied the motion. Mr. Martinez-Lazo appealed.

ANALYSIS

The first issue is whether Mr. Martinez-Lazo was denied effective assistance of counsel because his trial attorney failed to move to suppress his statements under the Vienna Convention on Consular Relations.

This court reviews the trial court's denial of a motion to withdraw a plea for an abuse of discretion. State v. Olmsted, 70 Wash.2d 116, 119, 422 P.2d 312 (1966). A court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. Id.

"The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2(f). A manifest injustice is "`an injustice that is obvious, directly observable, overt, [and] not obscure.'" State v. Smith, 74 Wash.App. 844, 847, 875 P.2d 1249 (1994) (quoting State v. Taylor, 83 Wash.2d 594, 596, 521 P.2d 699 (1974)), review denied, 125 Wash.2d 1017, 890 P.2d 19 (1995). The denial of effective assistance of counsel or an involuntary plea may constitute a manifest injustice. Smith, 74 Wash.App. at 848, 875 P.2d 1249 (citing Taylor, 83 Wash.2d at 597, 521 P.2d 699).

"Review of an ineffective assistance claim begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." In re Personal Restraint of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998). To establish ineffective assistance of counsel, the defendant must first show that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"The first element is met by showing counsel's conduct fell below an objective standard of reasonableness. The second element is met by showing that, but for counsel's unprofessional errors, there is a reasonable probability the outcome of the proceeding would have been different." Pirtle, 136 Wash.2d at 487, 965 P.2d 593 (citations omitted). If either element is not satisfied, the inquiry need go no further. State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996). The Strickland test applies to claims of ineffective assistance of counsel arising from plea bargains. State v. McCollum, 88 Wash.App. 977, 982, 947 P.2d 1235 (1997), review denied, 137 Wash.2d 1035, 980 P.2d 1285 (1999).

Article 36(1)(b) of the Vienna Convention on Consular Relations provides:

[I]f he so requests, the competent authorities of the receiving State [arresting State] shall, without delay, inform the consular post of the sending State [foreign national's State] if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.

Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 ("Article 36" or "Convention"). The Convention requires an arresting government to notify a foreign national who has been arrested or taken into custody of his or her right to contact consular officials. Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied, 519 U.S. 995, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996).

Here, the parties do not dispute that the Convention was violated.2 Thus, the issue becomes whether the trial court would have granted his motion to suppress if his trial counsel had raised Article 36. See State v. Contreras, 92 Wash.App. 307, 319, 966 P.2d 915 (1998)

(defendant did not demonstrate prejudice arising from trial counsel's failure to move to suppress where he did not show that the motion to suppress would have been granted).

The Ninth Circuit has recently addressed the issue of whether suppression is the appropriate remedy for a violation of the Convention. United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir.2000) (en banc). In Lombera-Camorlinga, the court held that "a foreign national's post-arrest statements should not be excluded solely because he made them before being told of his right to consular notification." Id. at 888. The court reasoned that the Convention was drafted three years before Miranda, and there was no basis to conclude that it had the purpose of protecting an individual's right against self-incrimination or right to counsel because these are "uniquely American rights." Id. at 886. Furthermore, the court noted that the exclusionary rule is typically applicable only to constitutional violations, and not for statutory or treaty violations. Id. Finally, the court deferred to the State Department's interpretation that a judicial remedy is inappropriate because the State Department has historically investigated violations of the Convention and worked with local law enforcement to ensure compliance, and because no other signatories to the Convention have permitted suppression under similar circumstances. Id. at 887-88.

The First Circuit has similarly concluded that the exclusion of post-arrest statements is not an appropriate remedy for a violation of the Convention. United States v. Li, 206 F.3d 56, 60, 66 (1st Cir.2000) (en banc).3 In Li, the court found that the Convention did not create fundamental rights on par with those usually protected by the suppression of the evidence. Id. at 61-62. The court then looked to the Convention's text and found that it did not address whether suppression is appropriate. Id. at 62. Given the textual ambiguity, the court relied on nontextual sources, including the State Department's interpretation of the treaty, to conclude that suppression was not a remedy under the Convention. Id. at 63-66.

In light of Li and Lombera-Camorlinga, we hold that suppression is not a remedy available to Mr. Martinez-Lazo. Accordingly, Mr. Martinez-Lazo has failed to demonstrate a reasonable probability that the outcome of the proceeding would have been different. Pirtle,136 Wash.2d at 487,965 P.2d 593. Thus, the trial court did not abuse its discretion when it denied Mr. Martinez-Lazo's motion on this ground.

The next issue is whether Mr. Martinez-Lazo received ineffective assistance because his counsel did not warn him of the deportation consequences of his guilty plea.

"In the context of a guilty plea, the defendant must show that his counsel failed to `actually and substantially assist his client in deciding whether to plead guilty,' and that but for counsel's failure to adequately advise him, he would not have pleaded guilty." McCollum, 88 Wash.App. at 982, 947 P.2d 1235 (quoting State v. Cameron, 30 Wash. App. 229, 232, 633 P.2d 901 (1981)).

A plea must be intelligent and voluntary for due process purposes. State v. Ward, 123 Wash.2d 488, 512, 869 P.2d 1062 (1994). In addition, CrR 4.2(d) provides: "The court shall not accept a plea of guilty, without first determining that it is made voluntarily, competently and with an understanding of the nature of the charge and the consequences of the plea." A defendant must be advised of the direct consequences of his or her plea but need not be advised of all possible collateral consequences of a plea. Ward, 123 Wash.2d at...

To continue reading

Request your trial
25 cases
  • Chaidez v. United States
    • United States
    • United States Supreme Court
    • February 20, 2013
    ...365, 367–368 (Tex.App.2000) ; State v. Rojas–Martinez, 2005 UT 86, ¶¶ 15–20, 125 P.3d 930, 934–935;State v. Martinez–Lazo, 100 Wash.App. 869, 876–878, 999 P.2d 1275, 1279–1280 (2000) ; State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987).9 People v. Pozo, 746 P.2d 523, 527–5......
  • In re Yung-Cheng Tsai
    • United States
    • United States State Supreme Court of Washington
    • May 7, 2015
    ...P.3d 1010 (2001) (citing Yim, 139 Wash.2d at 588, 989 P.2d 512 ; Holley, 75 Wash.App. at 198, 876 P.2d 973 ); State v. Martinez–Lazo, 100 Wash.App. 869, 876–77, 999 P.2d 1275 (2000) (citing Yim, 139 Wash.2d at 588, 989 P.2d 512 ; Holley, 75 Wash.App. at 197, 876 P.2d 973 ; In re Pers. Restr......
  • Chaidez v. United States
    • United States
    • United States Supreme Court
    • February 20, 2013
    ...31 S.W.3d 365, 367–368 (Tex.App.2000); State v. Rojas–Martinez, 2005 UT 86, ¶¶ 15–20, 125 P.3d 930, 934–935;State v. Martinez–Lazo, 100 Wash.App. 869, 876–878, 999 P.2d 1275, 1279–1280 (2000); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987). 9.People v. Pozo, 746 P.2d 5......
  • State v. Littlefair
    • United States
    • Court of Appeals of Washington
    • August 2, 2002
    ...25, 1983. RCW 10.40.200 was not then in effect, so it did not apply to the case. In In re Personal Restraint Petition of Yim57 and State v. Martinez-Lazo,58 the courts considered the existence of a constitutional right to be advised, but not the existence of a right under RCW 10.40.200. As ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT