State v. Tejeiro

• Decision Date: 22 December 2014
• Docket Number: 32,161.
• Citation: 345 P.3d 1074
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Alex TEJEIRO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

345 P.3d 1074

STATE of New Mexico, Plaintiff–Appellee

v.Alex TEJEIRO, Defendant–Appellant.

32,161.

Court of Appeals of New Mexico.

Dec. 22, 2014.

Gary K. King, Attorney General, Santa Fe, NM, Sri Mullis, Assistant Attorney General, Albuquerque, NM, for Appellee.

Ben A. Ortega, Albuquerque, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Defendant Alex Tejeiro appeals from the district court's ruling on his motion to set aside his guilty plea. He argues that he received ineffective assistance from his attorney, who failed to inform him of the immigration consequences of his plea. We agree. Accordingly, we reverse.

BACKGROUND

{2} Defendant, a Cuban immigrant, pleaded guilty to a single count of drug trafficking in November 2003. He received a conditional discharge, which he completed successfully, and the matter was dismissed with prejudice on August 13, 2007. He subsequently learned that his plea had possible immigration consequences and filed a motion to set aside his guilty plea on the grounds that his attorney had been ineffective in failing to inform him of that fact. His motion was filed in March 2011. Because the entry of the plea and the motion to withdraw it were heard by different judges, hereafter the court that accepted the guilty plea will be referred to as the “trial court,” and the court that heard Defendant's motion to withdraw as the “district court.”

{3} The district court initially denied Defendant's motion, declining to apply Paredez retroactively to his plea agreement, which occurred the year before Paredez was decided. State v. Paredez, 2004–NMSC–036, 136 N.M. 533, 101 P.3d 799. The district court later reconsidered and set an evidentiary hearing to investigate the merits of Defendant's claim. At that hearing, the district court again denied Defendant's motion, stating that Defendant's counsel was ineffective under Paredez but that Defendant had not been prejudiced by his counsel's incompetence in accepting the guilty plea. Defendant appealed.

DISCUSSION

{4} When a defendant moves to withdraw his guilty plea, the district court's denial of that motion is reviewed for abuse of discretion. State v. Carlos, 2006–NMCA–141, ¶ 9, 140 N.M. 688, 147 P.3d 897. An abuse of discretion occurs when a district court's ruling is clearly erroneous or “based on a misunderstanding of the law[,]” State v. Sotelo, 2013–NMCA–028, ¶ 37, 296 P.3d 1232, or when the court ignored “undisputed facts [that] establish [ed] that the plea was not knowingly and voluntarily given.” Paredez, 2004–NMSC–036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation omitted).

{5} The voluntariness of a guilty plea depends on whether counsel performed “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” Id. ¶ 13 (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ) An otherwise valid plea can thus be undermined by ineffective assistance from counsel. Garcia v. State, 2010–NMSC–023, ¶ 46, 148 N.M. 414, 237 P.3d 716. Indeed, we have found that 2 when a defendant enters a plea upon the advice of his attorney, “the voluntariness and intelligence of the defendant's plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea.” State v. Barnett, 1998–NMCA–105, ¶ 12, 125 N.M. 739, 965 P.2d 323 (emphasis added). As a result, we must assess a motion of this kind on the merits of its claim of ineffective assistance of counsel; such claims are mixed questions of law and fact, and are reviewed de novo. Id. ¶ 13.

{6} The United States Supreme Court has established a two-prong inquiry for determining whether a defendant received ineffective assistance of counsel: (1) the trial counsel's performance fell below the objective standard of reasonability, and (2) counsel's incompetence prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see State v. Hester, 1999–NMSC–020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The defendant must demonstrate the satisfaction of both prongs to prove that his plea was not knowing and voluntary and should be set aside.

A. Defendant's Counsel Was Incompetent Under Paredez

{7} Our Supreme Court has recognized the paramount importance of informing defendants of immigration consequences stemming from any guilty pleas. Paredez, 2004–NMSC–036, 136 N.M. 533, 101 P.3d 799. A defendant's attorney has “an affirmative duty” to determine the specific risk of deportation for his client and to inform his client of the possible impact on his immigration status if he accepts a guilty plea.Id. ¶ 1. If an attorney provides incorrect advice or misrepresents the consequences of a plea to his client, his performance is objectively unreasonable under Strickland; we require “a definite prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed in federal law for which a defendant can be deported.” Carlos, 2006–NMCA–141, ¶ 14, 140 N.M. 688, 147 P.3d 897. Additionally, the Supreme Court concluded that “an attorney's non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance.” Paredez, 2004–NMSC–036, ¶ 16, 136 N.M. 533, 101 P.3d 799. An attorney who failed to meet his affirmative burden in providing his client with information about deportation risks would thus necessarily satisfy the first prong of the Strickland analysis. Paredez, 2004–NMSC–036, ¶ 16, 136 N.M. 533, 101 P.3d 799.

{8} The United States Supreme Court has also confirmed a defendant's right to be informed of specific immigration consequences that may stem from guilty pleas, but has not done so as broadly as New Mexico. State v. Favela, 2013–NMCA–102, ¶ 18, 311 P.3d 1213, cert. granted, 2013–NMCERT–010, 313 P.3d 251. In Padilla v. Kentucky, the United States Supreme Court held that the duty to inform a defendant of immigration consequences arises when “the deportation consequence is truly clear[.]” 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We have established more stringent requirements for defense attorneys, requiring them to inform their clients of consequences short of deportation and to provide guidance even in cases in which implications for immigration status are not “truly clear.” Favela, 2013–NMCA–102, ¶ 18, 311 P.3d 1213.

{9} Paredez was decided in 2004, a year after Defendant pleaded guilty. We have since concluded that the standards regarding ineffective assistance of counsel outlined in Paredez apply retroactively. State v. Ramirez, 2012–NMCA–057, ¶ 5, 278 P.3d 569, aff'd sub. nom. Ramirez v. State, 2014–NMSC–023, 333 P.3d 240. These standards are thus applicable to Defendant's guilty plea.

{10} Applying Paredez, we review the record for evidence that Defendant was given appropriate advice regarding the potential impact of a guilty plea on his immigration status. We agree with the district court that such evidence is “[c]learly absent.” Defendant insisted in his own testimony that he had never been informed of the risk of deportation or other possible immigration consequences. His attorney was required to provide him with such information, even for those collateral consequences short of clear deportation risk. Favela, 2013–NMCA–102, ¶ 18, 311 P.3d 1213. He failed to do so.

{11} The record does contain the suggestion that both the trial court and defense counsel wrongly believed the conditional discharge would address deportation concerns. Contemplating the consequences to Defendant if he was “a citizen of another country,” the trial court informed him that he faced possible immigration consequences in case of “a conviction on this charge, especially a deferred or suspended sentence[.]” (emphasis added). It then elected to release Defendant on a conditional discharge for a period of five years, and informed Defendant that if he successfully completed probation “the charge will be dismissed and you honestly can tell the world that you do not have the felony conviction[.]” The district court commented that there was a “global understanding at th[e] time” of Defendant's plea that successful completion of a conditional discharge would allow him to avoid immigration consequences. Defendant later testified that he too operated under this mistaken belief. This understanding was not correct. See 8 U.S.C. § 1101(a)(48)(A)(i) (2012).

{12} The trial court's mistaken beliefs as to the immigration consequences for Defendant may account for counsel's failure to provide accurate advice—but it does not excuse it. Carlos, 2006–NMCA–141, ¶ 14, 140 N.M. 688, 147 P.3d 897. Defendant did indeed face possible deportation to Cuba as a result of his guilty plea, irrespective of whether he was afforded a conditional discharge, and it was incumbent on his attorney to know and inform him of that. Paredez, 2004–NMSC–036, ¶ 1, 136 N.M. 533, 101 P.3d 799 ; see 8 U.S.C. § 1101(a)(48)(A)(i) (incorporating guilty pleas into the definition of “conviction” for immigration purposes, even if no conviction arises under state law).

{13} For these reasons, the district court correctly found Defendant's attorney incompetent under the first prong of Strickland.

B. Defendant Was Prejudiced by Ineffective Counsel

{14} When an attorney fails to advise his client of the specific immigration consequences of his case, it satisfies the Strickland standard “if the defendant suffers prejudice by the attorney's omission.” Paredez, 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799. In order to demonstrate such prejudice, a defendant must show that the outcome of the plea process was affected by his counsel's deficient performance. Id. ¶ 20. Our recent jurisprudence adopts “a broad approach to how a defendant can demonstrate prejudice.” Favela, 2013–NMCA–102, ¶ 20, 311 P.3d 1213. According to the United States Supreme Court in Padilla, the petitioner need only show “that a decision to reject the plea bargain would have been rational...