State v. Tran
| Citation | 2009 NMCA 010,200 P.3d 537 |
| Decision Date | 15 December 2008 |
| Docket Number | No. 27,967.,27,967. |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Long TRAN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary King, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Appellee.
Law Office of Erlinda Ocampo Johnson, L.L.C., Erlinda O. Johnson, Albuquerque, NM, for Appellant.
{1} Defendant appeals from an order of the district court denying his motion to reconsider his petition to vacate and set aside convictions. At issue is whether Defendant is entitled to collaterally attack guilty pleas and no contest pleas he entered in December 1994, April 1996, and August 2000, on grounds that his attorneys failed to advise him of the specific immigration consequences of his pleas as required by State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, which we followed and applied in State v. Carlos, 2006-NMCA-141, 140 N.M. 688, 147 P.3d 897. We affirm the district court on grounds that Defendant failed to make a prima facie case entitling him to a hearing on his petition.
{2} This case involves three separate plea and disposition agreements Defendant entered into to resolve felony charges brought against him in four separate indictments. In the first indictment, filed on June 22, 1994, the Bernalillo County grand jury alleged that Defendant committed four felony offenses on October 10, 1993: commercial burglary; criminal damage to property over $1000; possession of burglary tools; and conspiracy to commit commercial burglary, or in the alternative, conspiracy to commit criminal damage to property over $1000, or in the alternative, conspiracy to commit possession of burglary tools.
{3} The second indictment was filed on June 29, 1994, alleging that on April 5, 1994, Defendant committed eight felony offenses of: auto burglary; larceny over $250; conspiracy to commit auto burglary, or in the alternative, conspiracy to commit larceny over $250; auto burglary of a second automobile; larceny over $250; conspiracy to commit auto burglary, or in the alternative, conspiracy to commit larceny over $250; and two counts of criminal damage to property.
{4} The two cases were consolidated for plea purposes. Defendant agreed to plead guilty to possession of burglary tools in the first case, and no contest to the two auto burglary charges in the second case, with the remaining charges in both cases dismissed. Since each crime was a fourth degree felony, Defendant was exposed to a basic sentence of eighteen months on each charge, but the State agreed that Defendant would receive a concurrent sentence, for a total exposure of three years.
{5} The plea and disposition agreement was reduced to writing as required by Rule 5-304 NMRA. Therein, Defendant acknowledged, "I understand that a conviction may have an effect upon my immigration or naturalization status[,]" and he signed and dated the plea and disposition agreement on December 7, 1994. In addition, a hearing, also required by Rule 5-304, was held by the district court that same day to determine whether it would accept or reject the agreement. During the course of that hearing, the following discussion took place:
{6} The district court approved the plea and disposition agreement. At the sentencing hearing, the district court advised Defendant: A judgment and order deferring sentence was filed on February 2, 1995, in which Defendant received a deferred sentence of three years with conditions of probation.
{7} A third indictment was filed on November 15, 1995, alleging that on September 5, 1995, Defendant committed: shoplifting; conspiracy to commit shoplifting; and tampering with evidence, all of which are felonies. Again, Defendant made a plea agreement with the State. In the repeat offender plea and disposition agreement, which Defendant signed on April 9, 1996, Defendant agreed that he would plead guilty to the felony of shoplifting over $250, admit he violated his probation in the first and second cases, and admit he was the same person convicted of possession of burglary tools and auto burglary in the first and second cases. In exchange, the State agreed to dismiss the remaining two charges in the third indictment and not bring habitual offender proceedings against Defendant. In the agreement Defendant agreed that the convictions in the first and second cases "are valid and free from fundamental error." Defendant also agreed that he "waives any collateral attack on the validity of each of the above felony convictions," and just like the first plea and disposition agreement, acknowledged, "I understand that being convicted may effect my immigration or naturalization status." Again, the district court approved the agreement. On May 2, 1996, the order, sentence, and order suspending sentence was filed. Defendant's probation was revoked, and Defendant received concurrent sentences of eighteen months in the first and second cases, to be served consecutively to the sentence of eighteen months imposed in the third case, for a total of three years. The sentence was suspended, and Defendant was placed on probation for three years with credit for the time already served on probation during the original period of deferral.
{8} Defendant was discharged from his probation in the first and second cases on February 17, 1998, and on January 13, 1999, the district court granted Defendant an early discharge from his probation in the third case.
{9} The fourth indictment was filed ten months later on November 30, 1999, alleging that on October 3, 1999, Defendant committed five felony offenses: kidnaping; aggravated battery with a deadly weapon; conspiracy to commit aggravated battery with a deadly weapon; assault with intent to commit a violent felony; tampering with evidence; and one count of misdemeanor aggravated battery. Again, the parties entered into a repeat offender plea and disposition agreement, and again the district court approved the agreement. In this agreement, signed on August 11, 2000, Defendant agreed to plead guilty to the felony offense of false imprisonment as a lesser included offense to kidnaping and agreed that he was the same person convicted of shoplifting in the third case. In return, the State agreed to dismiss all remaining charges contained in the fourth indictment. Again, by his signature to the agreement, Defendant agreed that the shoplifting conviction in the third case was "valid and free from fundamental error," that Defendant "waives any collateral attack on the validity of the conviction[ ]," and that Defendant understood that being convicted "may affect my immigration or naturalization status."
{10} A judgment, partially suspended sentence and commitment was filed on December 15, 2000. Defendant was sentenced to a prison term of two and one-half years, with execution of eighteen months suspended, for an actual initial term of incarceration of twelve months, with one month of presentence confinement credit. Defendant was allowed to serve the remaining eleven months in the Bernalillo County Detention Center with release under its Community Corrections Program with work release authorized. On December 11, 2002, Defendant was discharged from his probation in the fourth case.
{11} Defendant was taken into the custody of the Immigration and Customs Enforcement (ICE) on March 29, 2007, where he is facing deportation proceedings. On May 8, 2007, Defendant filed a petition for writ of error coram nobis, seeking to have all the foregoing convictions vacated and set aside because there is no "concrete and certain evidence that [Defendant] was advised of the specific immigration consequences of his convictions." The district court denied the petition without a hearing, stating:
The court did everything possible to advise [Defendant] of the immigration consequences of his plea. The[re] can be no doubt that [Defendant] knew there would be immigration consequences prior to the acceptance of the plea. The court will not, now, allow him to withdraw the plea he entered with complete knowledge of possible repercussions.
{12} Defendant then filed a motion to reconsider, asserting that the record in the four cases "do[es] not contain references that [Defendant] was advised of the exact immigration consequences of his pleas," and that "defense counsel's failure to state, with exactitude, that [Defendant] was deportable and would be facing virtual certain deportation as a result of the pleas, rendered his advise [sic] ineffective." Furthermore, Defendant argued, while the [district] court recited to its own efforts in advising him of the immigration consequences of his pleas, Paredez and Carlos "require criminal defense counsel, not the district court, to first determine the immigration status of the defendant, then read and interpret federal immigration law and specifically advise the defendant whether a guilty plea will result in almost certain deportation." Defendant added:
The test, in this case, is not whether the Court adv...
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