State v. Tarango, A-1-CA-35443
| Decision Date | 12 February 2018 |
| Docket Number | No. A-1-CA-35443,A-1-CA-35443 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DANIEL TARANGO, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SAN JUAN COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
for Appellee
Christin K. Kennedy
Albuquerque, NM
for Appellant
{1} Defendant Daniel Tarango appeals the district court's denial of his motion to withdraw and vacate his guilty plea. Defendant argues that he was denied effective assistance of counsel when he entered a guilty plea for possession of a controlled substance because his defense counsel failed to advise him of the specific immigration consequences of pleading guilty. Unpersuaded, we affirm the district court.
{2} On July 6, 1996, Defendant was stopped for a vehicle registration violation. After failing to provide identification and giving a false name during the stop, Defendant was arrested for concealing his identity. During a search of Defendant's person, the arresting officer found a substance he believed was methamphetamine, but later tested positive as cocaine and a small amount of marijuana. Defendant was ultimately charged with possession of cocaine, possession of an ounce or less of marijuana, concealing identity, driving with a suspended or revoked license, and failing to exhibit evidence of vehicle registration. On June 17, 1997, the State filed a supplemental information alleging that Defendant was convicted of possession of a controlled substance in 1992. Because of this prior felony, the State requested a one-year habitual offender sentence enhancement in the event of a conviction. On the same day, Defendant pled guilty to possession of a controlled substance (cocaine), and in exchange for his plea the State agreed to dismiss the remaining four counts.
{3} At the change of plea hearing, the district court realized that there was no interpreter present. Defendant's counsel suggested that Carmen Baca (Baca), who had served as an interpreter for Defendant in prior proceedings and was available, interpret for Defendant.1 Defense counsel added that Defendant "knows [Baca] and trust[s] her." The district court stated that if Defendant states on the record that he is okay with Baca translating for Defendant, then the court will grant the request. The district court placed Baca under oath and asked to swear or affirm that she would interpret English to Spanish and Spanish to English to the best of her ability, whether she conversed with Defendant and that she understood him and he understood her. Baca replied in the affirmative. The district court asked Defendant whether he understood Baca and if he wished to have her interpret for him, to which he responded in the affirmative.
{4} Prior to the district court conducting its colloquy, the State informed the court of the supplemental information regarding Defendant's prior conviction. The district court asked Defendant if he was Daniel Tarango who read and signed the plea and disposition agreement and guilty plea proceeding document. Defendant replied, "yes," to both questions. The district court then asked Defendant whether he (1) had anadequate opportunity to go over the plea with his attorney and did his attorney explain it to him, and (2) if he felt like he understood what he was doing, and Defendant replied, "yes" to both questions. The district court asked Defendant to tell the court, in his own words, what the agreement was. There was some discussion about where Defendant would serve his time, and the district court let Defendant know that there was no guarantee, based on his plea where he would serve his time, and asked if he understood, to which he replied, "yes." The district court asked Defendant if he understood that under this plea he could be doing two and one-half years in the state penitentiary and Defendant stated that he understood. The district court continued to ask Defendant if he understood that by entering into this plea and the court accepts the plea, there would be no trial by jury and Defendant stated that he understood. The district court then asked Defendant if he was giving up his right to confront witnesses, which the court described to Defendant, meant the witnesses would testify in front of Defendant and he would get to cross-examine the witnesses, and that he is also giving up his right to remain silent, and Defendant responded, "yes." The district court asked Defendant if he wished to give up those rights and enter the plea, and Defendant responded, "yes." The district court asked Defendant if he understood that if he entered this guilty plea these rights would be waived, and Defendant stated that he understood. The court further stated that there would be no trial because he wouldalready be considered guilty. In its inquiry into the factual basis of Defendant's guilty plea, the district court asked Defendant whether he had possession of cocaine on July 6, 1996, whether he knew that it was cocaine and that it was illegal. Defendant replied, "yes" to all three questions. The district court then asked Defendant whether anyone was forcing or threatening him to enter into this plea, whether he had been promised anything in exchange for the plea that was not included in the plea agreement, Defendant responded, "no."
{5} The district court then asked defense counsel whether he had made an independent investigation as to whether a factual basis existed for the plea. Defendant's attorney replied that there was a factual basis and he even had the substance independently tested. In response to the district court's inquiry into Defendant's immigration status, Defense counsel stated that, as far as he knew Defendant was a legal immigrant. The court noted that the plea may or may not affect his immigration status. The district court specifically found the plea had been entered into knowingly and voluntarily. By the court accepting the plea, Defendant was adjudicated as guilty of possession of a controlled substance. The district court then addressed the supplemental information that Defendant was convicted of possession of a controlled substance in Lea County in March 1992. Defense counsel stated that he had also investigated this allegation and determined that it was accurate and hisclient would admit the prior conviction. The district court accepted the admission of the prior conviction. The district court delayed sentencing so that a pre-sentence report could be prepared and scheduled sentencing for July 22, 1997. On July 10, 1997, Defendant was deported. As a result, he failed to appear for sentencing. At some point, Defendant returned to Farmington to get his family. On June 25, 1998, the family held a garage sale where Defendant's neighbor, a police officer, saw him and called law enforcement. Defendant was eventually arrested.
{6} At the July 2, 1998 sentencing, the district court noted on the record that because Defendant would be deported, it proposed to impose the sentence recommended in the plea agreement. Defense counsel requested to use Baca as Defendant's interpreter again. The court asked if Defendant understood the interpreter and whether Baca understood Defendant. They both replied, "yes." The court then placed Baca under oath and asked her to swear or affirm that she would translate English to Spanish and Spanish to English to the best of her ability, which she stated that she would. The court announced that it was proposing a sentence as outlined in the plea agreement—one year in the penitentiary for the underlying habitual offender enchancement and Defendant would then be on unsupervised probation for eighteen months, because the court assumed he would be deported. At that point, Defendant asked to speak. Defendant, through Baca, told the district court that "he came [toFarmington] for his family and now all he wants to do is return back to Mexico" with his family. The district court explained that the habitual offender enhancement was mandatory and it was therefore required to impose a one year prison sentence. Defendant stated that he understood. Defendant was sentenced, pursuant to the guilty plea, to two and one-half years in the department of corrections. Eighteen months of the sentence were suspended in favor of unsupervised probation, leaving the mandatory habitual offender enhancement of one year of incarceration followed by one year of parole to run concurrent with the unsupervised probation.
{7} Seventeen years later, Defendant filed a motion to withdraw and vacate his guilty plea. In his motion, Defendant stated that he was in the process of applying to become a legal permanent resident. Defendant also alleged that his attorney in 1997 never told him that by pleading guilty to one count of possession of a controlled substance it would affect his immigration status, his ability to apply for legal permanent residence, or that he would be deported. Defendant further claimed that because a drug conviction is a crime of moral turpitude that makes him ineligible for legal permanent residency in general.
{8} The motion's hearing was initially scheduled for November 6, 2015, but was rescheduled because Defendant was in federal custody. At that setting, Defendant's unopposed request to admit his plea attorney's affidavit as Defendant's Exhibit A, wasgranted by the district court.2 The motion's hearing was eventually held on December 1, 2015. Defendant was the only witness to...
To continue reading
Request your trial