State v. Morales
| Decision Date | 09 July 2018 |
| Docket Number | No. A-1-CA-35087,A-1-CA-35087 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. PEDRO MORALES, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
for Appellee
León Felipe Encinias
Albuquerque, NM
for Appellant
{1} Defendant Pedro Morales1 appeals the district court's denial of his motion to vacate a plea reached pursuant to a March 2, 2005, plea agreement. Defendant argues that he was denied effective assistance of counsel when his defense counsel failed to advise him of the specific immigration consequences of pleading guilty to two counts of battery against a household member. Unpersuaded, we affirm the district court.
{2} For the factual background in this case, we rely primarily on the district court's undisputed findings of fact in the order denying Defendant's motion to vacate his plea agreement. A specific attack shall be made on any finding, otherwise such finding will be deemed conclusive. See Rule 12-318(A)(4) NMRA (); MPC Ltd. v. N.M Taxation & Revenue Dep't, 2003-NMCA-021, ¶ 11 , 133 N.M. 217, 62 P.3d 308 (). Defendant does not make a specific attack as to any of the district court's findings. Instead, Defendant's argument appears to focus on the court's conclusions of law.
{3} Defendant, a citizen of Mexico, came to the United States in August 2000. Since that time, Defendant has lived and worked in Albuquerque, New Mexico or the surrounding area. On July 30, 2002, Defendant was charged with two misdemeanor counts of battery against a household member, as well as several felony counts that included intimidation of a witness, robbery, and false imprisonment.
{4} On October 9, 2002, Defendant failed to appear for a hearing and the district court issued a bench warrant for his arrest. He was arrested by federal marshals on June 11, 2004. On March 2, 2005, Defendant pled no contest to the two misdemeanor counts of battery against a household member and the remaining charges were dismissed.
{5} The plea agreement contains a specific provision declaring that: Under this provision is Defendant's signature. The plea agreement also contains a provision that states:
I have discussed this case with my client in detail and have advised [D]efendant of [D]efendant's constitutional rights and all possible defenses. I believe that the plea and disposition set forth herein are appropriate under the facts of this case. I agree with the plea outlined in this agreement and its terms and conditions.
Beneath this specific provision is plea counsel's signature. The Defendant received a suspended sentence and was placed on two years supervised probation. Defendant was discharged from his judgment and sentence on March 7, 2007.
{6} At some point after Defendant's probation was completed, Defendant was arrested in Phoenix, Arizona, and informed that he was going to be deported. Defendant was served with a notice to appear on August 15, 2013, by immigration officials. He retained an immigration attorney shortly thereafter.
{7} On November 1, 2013, Defendant, through his current attorney filed a Rule 1-060(B) NMRA motion to vacate the March 2005 plea claiming ineffective assistance of counsel. Following a series of delays, an evidentiary hearing was held on the motion.
{8} Defendant unsuccessfully attempted to subpoena his plea counsel to appear at the hearing and testify. He had difficulties in finding a current address for her. Plea counsel had been in contact with the State by electronic mail and indicated that she was living in Texas at that time and would be available later that month to testify. Defendant informed the district court that his immigration hearing was set for October 13, 2015. Defendant was reluctant to ask for a continuance because of the unlikelihood the hearing on his motion could be reset prior to the October date. The district court attempted to reset the hearing prior to October 13, 2015, in order toallow for the testimony of plea counsel, but was unable to do so. Nonetheless, Defendant wanted to proceed with the May 5, 2015, hearing believing the evidence he intended to present would carry the necessary burden to vacate the plea.
{9} The only two witnesses called by Defendant were his immigration attorney, as an expert in immigration matters, and Defendant, testifying on his own behalf. He presented no other evidence.
{10} Defendant testified that the original criminal case was interfering with his work so to avoid getting fired and to get the matter over with expediently, he agreed to accept a plea deal. Defendant also testified that plea counsel never spoke to him about the immigration consequences of the plea agreement or going to trial. He also believed that if he agreed to the plea agreement the matter would be over once his probation was completed. He stated that he was not given a copy of the plea agreement before he entered the plea, and that he would never have agreed to enter into the plea if he knew he would be deported. Defendant's immigration attorney testified that Defendant was likely to be sent to Mexico as a result of the pending immigration proceedings, and that the no contest plea to the two misdemeanor charges would prevent Defendant from seeking potential relief from deportation.
{11} The district court judge entered an order denying Defendant's motion to vacate the plea. The district court concluded that Defendant did not satisfy his burden ofestablishing a claim for ineffective assistance of counsel. Defendant filed a motion to reconsider the denial of the motion to vacate the plea, and it was denied.
{12} Defendant argues that the district court erred by denying Defendant's motion to vacate the plea based on a claim of ineffective assistance of counsel. Defendant argues that plea counsel did not advise him of the specific immigration consequences of the plea and therefore the Defendant did not knowingly and voluntarily enter the plea.
{13} We review a motion to vacate a plea based on a claim of ineffective assistance of counsel under a mixed standard of review. See State v. Gutierrez, 2016-NMCA-077, ¶ 33, 380 P.3d 872. The factual record is viewed in a light most favorable to the district court's ruling, but we will decide de novo a legal issue of whether counsel was ineffective as a matter of law. Id. We will defer to the district court's findings of fact if they are supported by substantial evidence in the record. See State v. Barrera, 2001-NMSC-014, ¶ 12, 130 N.M. 227, 22 P.3d 1177 (). It is Defendant's burden to provide sufficient evidence to demonstrate that his plea shouldbe withdrawn. See State v. Clark, 1989-NMSC-010, ¶ 9, 108 N.M. 288, 772 P.2d 322 ().
{14} The denial of a Rule 1-060(B) NMRA motion is reviewed under an abuse of discretion standard. See Gutierrez, 2016-NMCA-077, ¶¶ 20, 32 ( that a motion filed under Rule 1-060(B)(4) is appropriate when seeking to set aside a conviction based on ineffective assistance of counsel). If the inquiry is fact-based, we will "look at the facts relied on by the [district] court [in] the exercise of its discretion, to determine if [the] facts are supported by substantial evidence." Gutierrez, 2016-NMCA-077, ¶ 32 (internal quotation marks and citation omitted). We therefore "defer to the district court's findings of fact when they are supported by the record." Id. ¶ 33.
{15} Under the Sixth Amendment of the United States Constitution, a defendant in a criminal case has the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984); Patterson v. LeMaster, 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; see Patterson, 2001-NMSC-013, ¶ 16 (). A "districtcourt abuses its discretion . . . when the undisputed facts establish that the plea was not knowingly and voluntarily given." State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation omitted). Whether the plea was not made knowingly and voluntarily will depend on whether the criminal defendant's attorney was ineffective in counseling the plea. See Gallegos-Delgado, 2017-NMCA-031, ¶ 11.
{16} We will evaluate a claim of ineffective assistance of counsel using the...
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