State v. Rojas-Martinez
| Decision Date | 22 November 2005 |
| Docket Number | No. 20030668.,20030668. |
| Citation | 2005 UT 86,125 P.3d 930 |
| Parties | STATE of Utah, Plaintiff and Petitioner, v. Tomas G. ROJAS-MARTINEZ, Defendant and Respondent. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Christopher D. Ballard, Asst. Att'y Gen., Salt Lake City, for plaintiff.
Hakeem Ishola, Salt Lake City, for defendant.
On Certiorari to the Utah Court of Appeals
¶ 1 This case presents the question of whether the court of appeals correctly determined that Mr. Rojas-Martinez's defense counsel provided ineffective assistance by advising him, an undocumented foreign national, that he "might or might not" be deported if he pleaded guilty to a sexual battery charge, even though the offense was automatic cause for deportation under federal law. We reverse.
¶ 2 Tomas G. Rojas-Martinez was accused of touching the breast of a sixteen-year-old juvenile, over her clothing and without her consent. On May 28, 2002, he was charged with one count of sexual battery, which is a class A misdemeanor under Utah Code Ann. § 76-9-702(3) (Supp.2000). Mr. Rojas-Martinez's guilty plea triggered, however, additional consequences to the penalties permitted for a class A misdemeanor. Under federal immigration law, specifically section 101 of the Immigration and Nationality Act, sexual abuse of a minor is classified as an aggravated felony and therefore a deportable offense. 8 U.S.C. § 1101(a)(43)(A) (Supp.2003); 8 U.S.C. § 1277(a)(2)(A)(iii).1
¶ 3 When Mr. Rojas-Martinez entered his guilty plea, the trial judge made appropriate inquiry to satisfy himself that Mr. Rojas-Martinez understood the English language and conducted the review of rights that Mr. Rojas-Martinez was surrendering as required by rule 11 of the Utah Rules of Criminal Procedure.2 The trial court accepted Mr. Rojas-Martinez's guilty plea and sentenced him to 365 days in jail. Soon thereafter, Mr. Rojas-Martinez was subjected to deportation proceedings.
¶ 4 Mr. Rojas-Martinez timely moved to withdraw his guilty plea. At the hearing on this motion, Mr. Rojas-Martinez's counsel testified that Mr. Rojas-Martinez expressed concern over the effect of the guilty plea on his immigration status. Counsel responded by telling Mr. Rojas-Martinez that "as this was a misdemeanor, sometimes the INS does not deport because of lack of resources or for whatever reason, they do not deport, but ... he could not count on that, that they do have the authority to deport him."
¶ 5 The trial court ruled that, prior to the plea hearing, Mr. Rojas-Martinez's counsel had "informed [him] that [a] guilty plea and conviction could lead to deportation, but it might or might not." Concluding that Mr. Rojas-Martinez counsel "did not affirmatively misrepresent the [deportation] consequences of ... Defendant's guilty plea," the trial court denied the motion.
¶ 6 Mr. Rojas-Martinez appealed to the Utah Court of Appeals, arguing that the trial court erred in denying his motion to withdraw his guilty plea. To support his claim, he argued that (1) he received ineffective assistance of counsel because his counsel misstated the law regarding deportation and the consequences of a guilty plea, (2) his consent was "involuntary" and invalid due to the incompetent advice, and (3) the trial court failed to comply with rule 11 of the Utah Rules of Criminal Procedure by failing to provide an interpreter during the plea proceedings. See State v. Rojas-Martinez, 2003 UT App 203, ¶ 11 nn. 5-6, 73 P.3d 967.
¶ 7 The court of appeals reversed the trial court's finding that counsel's advice did not constitute ineffective assistance of counsel based on the United States Supreme Court's two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rojas-Martinez, 2003 UT App 203, ¶¶ 10-11, 73 P.3d 967. To support its conclusion, the court reasoned that although the crime is only a misdemeanor under Utah law, federal immigration law classifies a sexual offense with a minor as an aggravated felony, which eliminates any discretion the government would otherwise have to waive deportation. Id. ¶ 9. Because Mr. Rojas-Martinez was advised that he "might or might not be deported," the appellate court held that counsel provided inadequate assistance when he affirmatively misrepresented the legal consequences of his guilty plea. Id. ¶ 10. The court also found that Mr. Rojas-Martinez was prejudiced by counsel's misrepresentation because the misstatement created a reasonable probability that, but for the advice, the result of the proceeding would have been different. Id. ¶ 11. Faced with Mr. Rojas-Martinez's affidavit that he would have "gone to trial [to] prove [his] innocence," the court of appeals concluded that counsel's actions did in fact prejudice Mr. Rojas-Martinez. Id.
¶ 8 Harris v. Albrecht, 2004 UT 13, ¶ 8, 86 P.3d 728 (quoting Collins v. Sandy City Bd. of Adjustment, 2002 UT 77, ¶ 11, 52 P.3d 1267).
¶ 9 Mr. Rojas-Martinez argues that he was denied his Sixth Amendment guarantee of counsel when his counsel misinformed him of the deportation consequences of a guilty plea to the charged offense. Amendment VI of the United States Constitution states: "In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense." U.S. Const. Amend. VI. The Supreme Court extended this constitutional right to include effective assistance of counsel in McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), holding that the promise made by the amendment would be hollow if defendants were "left to the mercies of incompetent counsel." The generalized principle that the right to counsel included the guarantee of effective counsel spawned the two-pronged test of effectiveness announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test weighs whether (1) "counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant." Id. The Court also noted that ineffective assistance of counsel claims may be defeated upon a finding by the court that either prong was not satisfied. Id. at 697, 104 S.Ct. 2052.
¶ 10 This court has previously adopted the Strickland test when deciding a challenge to a guilty plea based on ineffective assistance of counsel in State v. Martinez, 2001 UT 12, ¶ 16, 26 P.3d 203 (). This appeal is our first experience in addressing an ineffective assistance of counsel challenge based on an alleged failure to provide accurate information about the collateral consequences of a guilty plea. This issue, however, has been addressed by our court of appeals in State v. McFadden, 884 P.2d 1303 (1994), and we look to that decision as a logical embarkation point for our analysis of Mr. Rojas-Martinez's appeal.
¶ 11 In McFadden, the court of appeals concluded that counsel did not provide ineffective assistance when he failed to advise a defendant of the risk of deportation prior to his guilty plea. 884 P.2d at 1305. McFadden was a Canadian citizen who pleaded guilty as part of a bargain to reduce his charge of forcible sexual abuse. Id. at 1304. Prior to sentencing, he moved to withdraw his guilty plea after learning that his conviction could trigger his deportation. Id. The trial court denied the motion, and on appeal the court of appeals agreed, stating that the possibility of deportation was merely a collateral consequence unrelated to the sentence imposed and the failure of counsel to advise Mr. McFadden of the possibility of deportation did not deprive him of effective assistance of counsel. Id. at 1304-05.
¶ 12 Because there was then no controlling law relating to collateral consequences in this jurisdiction, the court of appeals relied on case law from other jurisdictions to reach its decision. McFadden, 884 P.2d at 1305. The court referenced twelve federal courts that all concluded that "counsel's failure to warn of possible deportation ... is a collateral consequence of the criminal process and hence the failure to advise does not amount to ineffective assistance of counsel." Id. The decisions of these courts were unified in their reliance on a common traditional definition of collateral, namely, that
[a] consequence is collateral if an agent independent of the court—either the defendant or another governmental entity—must act to cause that consequence. Courts view deportation as a collateral consequence of conviction. They deem potential deportation of an alien defendant a collateral consequence of his guilty plea because an agency which operates beyond the direct authority of the trial judge controls that sanction.
Ethan Venner Torrey, The Dignity of Crimes: Judicial Removal of Aliens and the Civil-Criminal Distinction, 32 Colum. J.L. & Soc. Probs. 187, 197 (1999).
The Court of Appeals for the Second Circuit added
[t]he district judge, in our view, has the obligation to ascertain that the consequences of the sentence he imposes are understood. Deportation here, as before, was not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility.... He must assure himself only that the punishment that he is meting out is understood.
To continue reading
Request your trial
-
Padilla v. Ky., No. 08-651
... ... Also, informed consideration of possible deportation can benefit both the State ... and noncitizen defendants, who may be able to reach agreements that better ... satisfy the interests of both parties. This decision will not ... 852 F.2d 882 (CA6 1988); United States v. Russell , ... 686 F.2d 35, 222 U.S. App. D.C. 313 (CADC 1982); State v. Rojas-Martinez , ... 2005 UT 86, 125 P. 3d 930, 935; In re Resendiz , 25 Cal. 4th 230, ... 105 Cal. Rptr. 2d 431, 19 P. 3d 1171 (2001). Kentucky describes ... ...
-
Padilla v. Kentuchy, 08–651.
...(C.A.9 2005); Sparks v. Sowders, 852 F.2d 882 (C.A.6 1988); United States v. Russell, 686 F.2d 35 (C.A.D.C.1982); State v. Rojas–Martinez, 2005 UT 86, 125 P.3d 930, 935; In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171 (2001). Kentucky describes these decisions isolating an......
-
Chaidez v. United States
...); Bautista v. State, 160 S.W.3d 917, 922 (Tenn.Crim.App.2004) ; Perez v. State, 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......
-
State v. Alfatlawi
..."ineffective assistance of counsel claims may be defeated upon a finding by the court that either prong was not satisfied." State v. Rojas-Martinez, 2005 UT 86, ¶ 9, 125 P.3d 930 (citing Strickland, 466 U.S. at 687, 697, 104 S.Ct. 2052). Thus, even if we assume trial counsel's failure to ob......
-
Cultural Issues in Criminal Defense - 2nd Edition
...Issues in Criminal Defense will need to be particularly thorough when independently reviewing Utah law. See, e.g., State v. rojas-Martinez, 2005 UT 86, ¶ 20, 125 P.3d 930 (holding that defense counsel provides ineffective assistance if counsel "affirmatively misrepresent[s] the deportation ......