State v. Nunez-Diaz

• Decision Date: 16 July 2019
• Docket Number: No. CR-18-0514-PR,CR-18-0514-PR
• Citation: 444 P.3d 250,247 Ariz. 1
• Parties: STATE of Arizona, Petitioner, v. Hector Sebastion NUNEZ-DIAZ, Respondent.
• Court: Arizona Supreme Court

247 Ariz. 1

444 P.3d 250

STATE of Arizona, Petitioner,

v.Hector Sebastion NUNEZ-DIAZ, Respondent.

No. CR-18-0514-PR

Supreme Court of Arizona.

Filed July 16, 2019

Ray A. Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for Hector Sebastion Nunez-Diaz

William G. Montgomery, Maricopa County Attorney, Karen Kemper, Deputy County Attorney (argued), Phoenix, Attorneys for State of Arizona

Mark Brnovich, Arizona Attorney General, Drew C. Ensign (argued), Deputy Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

John Walters, Office of the Pima County Public Defender, Tucson; Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant Federal Public Defender, Phoenix; Grant D. Wille, Ralls & Reidy, P.C., Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice, Pima County Public Defender, and the Federal Public Defender for the District of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES TIMMER, BOLICK and PELANDER (Retired) joined. JUSTICE BOLICK, joined by JUSTICE PELANDER, filed a concurring opinion. JUSTICE LOPEZ, joined by VICE CHIEF BRUTINEL and JUSTICE GOULD, filed an opinion concurring in the result.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 In this case involving post-conviction relief, the State argues that the lower courts erred in concluding that Hector Sebastion Nunez-Diaz, an undocumented immigrant, received ineffective assistance of counsel when he entered a guilty plea resulting in his mandatory deportation. The State contends that because Nunez-Diaz was deportable without regard to his plea, he cannot establish a claim of ineffective assistance or, alternatively, that any constitutional violation was harmless. Because Nunez-Diaz suffered severe and mandatory consequences (including a permanent bar from reentry) as a result of the plea he entered due to counsel’s deficient advice, we agree with the trial court and the court of appeals that he received ineffective assistance of counsel justifying post-conviction relief.

I.

¶2 We defer to a trial court’s findings of fact unless clearly erroneous. State v. Hulsey , 243 Ariz. 367, 377 ¶ 17, 408 P.3d 408, 418 (2018). Nunez-Diaz was stopped for speeding and found in possession of small amounts of methamphetamine and cocaine. He was subsequently charged with possession or use of a dangerous drug and possession or use of a narcotic drug, each a class 4 felony. See A.R.S. §§ 13-3407(A)(1), -3408(A)(1). The record does not reflect that Nunez-Diaz had any prior criminal history.

¶3 Upon his arrest, Nunez-Diaz’s family began searching for an attorney. Their chief concern was avoiding Nunez-Diaz’s deportation. They met with an attorney from a Phoenix law firm experienced in criminal defense and immigration law, who informed them that although Nunez-Diaz had a difficult case, it was possible to avoid deportation. Reassured by this meeting, Nunez-Diaz’s family chose to retain that firm, and the firm assigned a criminal defense attorney to Nunez-Diaz’s case.

¶4 The State offered a plea deal that would reduce the charges Nunez-Diaz was facing to a single count of possession of drug paraphernalia, a class 6 undesignated felony. See A.R.S. § 13-3415(A). Counsel advised Nunez-Diaz to take the plea. He did. Consistent with the plea agreement, the trial court suspended sentencing and placed Nunez-Diaz on eighteen months’ unsupervised probation.

¶5 Nunez-Diaz was transferred to the custody of United States Immigration and Customs Enforcement ("ICE"). He was informed that, because of his plea, he could not bond out of custody and would be deported. This alarmed both Nunez-Diaz and his family, who returned to the law firm. There, an immigration attorney told the family that because of the plea, nothing could be done to keep Nunez-Diaz in this country. The family found new counsel who was able to negotiate for Nunez-Diaz’s voluntary removal to Mexico, where Nunez-Diaz has remained.

¶6 Nunez-Diaz then initiated post-conviction relief proceedings pursuant to Arizona Rule of Criminal Procedure 32. He claimed he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In his pleadings, he avowed that his primary concern in considering the plea offer was his immigration status and he would not have entered the plea if his counsel had accurately advised him of the immigration consequences.

¶7 After holding an evidentiary hearing, the trial court ruled that Nunez-Diaz had established ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court found overwhelming evidence that "counsel’s actions fell below an objective standard [of reasonableness]." Counsel had "misrepresented the immigration consequences to defendant," and failed to inform Nunez-Diaz that his removal would be guaranteed if he accepted the plea. As a "direct result of [counsel’s] failure," Nunez-Diaz was prejudiced by forfeiting his chance at trial and thus his only chance at avoiding removal. Accordingly, the trial court ordered that Nunez-Diaz’s guilty plea be set aside.

¶8 The court of appeals granted the State’s petition for review, and a divided panel denied relief. See State v. Nunez-Diaz , 1 CA-CR 16-0793 PRPC, 2018 WL 4500758, at *1-*2 ¶¶ 1, 13 (Ariz. App. Sept. 18, 2018) (mem. decision). The court concluded that Nunez-Diaz had "established he suffered from both deficient performance and prejudice when he entered" his plea. Id. at *2 ¶ 10. The burden then shifted to the State to demonstrate that the constitutional deficiency was harmless, which it failed to do. Id. ¶ 11. The dissenting judge argued that, because Nunez-Diaz was deportable regardless of his plea, there was no prejudice and thus no constitutional claim. Id. at *3 ¶ 14 (Morse, J., dissenting).

¶9 We granted review to consider whether deportable immigrants can show prejudice if their lawyers’ deficient performances lead them to plead guilty and suffer attendant immigration consequences – a recurring issue of statewide importance.

II.

¶10 The Sixth Amendment guarantees a defendant the right to counsel. U.S. Const. amend. VI ; see also Wong Wing v. United States , 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (holding that "even aliens" are protected by the Fifth and Sixth Amendments). The right to counsel includes the right to effective assistance of counsel. Strickland , 466 U.S. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). To demonstrate that counsel’s assistance was so deficient as to require reversal of a conviction, a defendant must show both that "counsel’s representation fell below an objective standard of reasonableness" and "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id . at 688, 694, 104 S.Ct. 2052. Even if a defendant proves a constitutional violation, however, post-conviction relief will be denied if the state proves "beyond a reasonable doubt that the violation was harmless." Ariz. R. Crim. Proc. 32.8(c). This Court reviews a trial court’s ruling on a petition for post-conviction relief for an abuse of discretion. State v. Miles , 243 Ariz. 511, 513 ¶ 7, 414 P.3d 680, 682 (2018).

A.

¶11 To satisfy Strickland ’s first prong, a defendant must demonstrate that counsel’s assistance was constitutionally deficient. Padilla v. Kentucky , 559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Generally, plea counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S.Ct. 1473. When the consequences of a plea are clear, however, "the duty to give correct advice is equally clear" and counsel must inform their client of those consequences. Id .

¶12 This case is one in which counsel was obliged to give correct advice about the clear consequences of a plea. Nunez-Diaz’s plea resulted in a conviction that falls under 8 U.S.C. § 1227(a)(2)(B). Such a conviction renders a noncitizen, other than a lawful permanent resident, ineligible for discretionary relief from removal, see, e.g. , 8 U.S.C. § 1229b(b)(1)(C), and would permanently prevent that individual from ever returning to this country, 8 U.S.C. § 1182(a)(2)(A)(i)(II). The trial court found that competent counsel "could have easily" explained the adverse immigration consequences of the plea and that there was "overwhelming evidence" that counsel’s assistance was constitutionally deficient. At oral argument in this Court, the State conceded that plea counsel’s assistance fell below an objective standard of reasonableness. We agree - the first prong of Strickland has been satisfied.

B.

¶13 Strickland ’s second prong requires that a defendant show counsel’s errors had a prejudicial effect. See Padilla , 559 U.S. at 369, 130 S.Ct. 1473. When a claim of ineffective assistance of counsel stems from plea proceedings, a defendant must show a reasonable probability that, "but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To do so, it must "have been rational under the circumstances" for a defendant to refuse a plea and go to trial. Padilla , 559 U.S. at 372, 130 S.Ct. 1473.

¶14 It is not irrational for a defendant to go to trial when trial represents the only, albeit slim, chance that a defendant can avoid severe and certain immigration consequences. Lee v. United States , ––– U.S. ––––, 137 S. Ct. 1958, 1968, 198 L.Ed.2d 476 (2017). In Lee , defendant Lee received inaccurate advice from plea counsel that resulted in him signing a plea that guaranteed deportation. Id. at 1963. The "determinative issue" in Lee’s decision-making had been the...