State v. Vazquez (In re Vazquez)
| Decision Date | 28 August 2018 |
| Docket Number | No. 35147-5-III,c/w No. 35604-3-III,35147-5-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. VICTOR A. VALDOVINOS VAZQUEZ, Appellant. In the Matter of the Petition for Relief from Personal Restraint of: VICTOR VALDOVINOS VAZQUEZ. |
LAWRENCE-BERREY, C.J. — Victor Valdovinos Vazquez (Valdovinos) appeals the trial court's order denying his motion to vacate his guilty plea and conviction. He argues he received ineffective assistance of counsel when his trial counsel did not correctly advise him of the immigration consequences of his guilty plea. Here, trial counsel advised him not to plead guilty until Valdovinos consulted with his retained immigration attorney. This was good advice. Valdovinos ignored it and pleaded guilty. Because his trial counsel's advice was not deficient, we reject Valdovinos's claim and affirm the trial court.
Valdovinos did not assign error to any of the trial court's findings of fact. We therefore take our facts from those findings.
On August 1, 2016, the State filed a criminal information against Valdovinos, alleging one count of residential burglary. Attorney Nicholas Yedinak appeared on behalf of Valdovinos.
Valdovinos is not a United States citizen. He came to the United States when he was in grade school, around 2005. Shortly after he was charged, Valdovinos's family retained attorney Brent De Young to provide their son with advice about the immigration consequences of his criminal case and also to consult with Yedinak.
De Young telephoned Yedinak and said he was aware of an unfiled drug possession case against Valdovinos. In the telephone call, De Young mentioned to Yedinak his concerns about the immigration consequences of the drug possession case.
On or shortly before September 1, 2016, the State made a plea offer to Valdovinos through Yedinak. Yedinak e-mailed an outline of the plea offer to De Young. De Young responded and offered specific immigration advice to Yedinak concerning the plea offer.
The parties set a change of plea hearing for September 6, 2016. That same day, the State approached Yedinak and offered to resolve Valdovinos's unfiled drug possession case. The State offered to include the unfiled drug offense under the residential burglary case and to request no additional jail time for that offense.
Yedinak did not call or discuss the new plea offer with De Young because the offer came up at the last moment in court. The new plea offer required Valdovinos to plead guilty to first degree theft, criminal trespass in the first degree, and possession of a controlled substance, methamphetamine.
Yedinak discussed the new plea offer with Valdovinos. He advised Valdovinos to consult with De Young about the immigration consequences of the new charge before entering a plea of guilty. He specifically told Valdovinos that the new drug charge may adversely affect his immigration status. Valdovinos decided against consulting with De Young and decided to plead guilty to the amended charges.
A court interpreter assisted Valdovinos at the plea hearing. The record of the plea hearing establishes that Valdovinos was advised of his constitutional rights and theconsequences of pleading to the charges. The trial court asked Valdovinos whether he wanted additional time to consult with his immigration attorney. Valdovinos declined. The trial court also asked Valdovinos if he was aware that pleading guilty might lead to his deportation. Valdovinos answered, "'yes.'" Clerk's Papers (CP) at 190. Valdovinos then pleaded guilty to the amended charges, and the trial court accepted his plea.
Just over two months later, Valdovinos filed a motion to withdraw his guilty plea and conviction. The trial court held a hearing, heard testimony, and reviewed the declarations pertaining to the motion. The trial court subsequently issued a memorandum opinion denying Valdovinos's motion. The memorandum opinion carefully sets forth the facts found by the trial court and its legal analysis. The trial court later signed findings of fact and conclusions of law. In its findings of fact, the trial court adopted its findings in its memorandum opinion.
Valdovinos appealed.
Valdovinos claims he received ineffective assistance of counsel when his trial counsel did not advise him that pleading guilty to the drug felony would lead to deportation.
Ineffective assistance of counsel The Sixth Amendment to the United States Constitution right to effective assistance of counsel encompasses the plea process. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015 (2011). Defense counsel's erroneous advice can render the defendant's guilty plea involuntary or unintelligent. Id. To establish that the plea was involuntary or unintelligent, the defendant must satisfy the two-part test for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Sandoval, 171 Wn.2d at 169.
To establish ineffective assistance of counsel, the defendant must show deficient performance and that the deficient performance prejudiced the defendant. In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). To prove deficient performance, the defendant must show that the representation fell below an objective standard of reasonableness. Id. at 842. To show prejudice, the defendant must show a reasonable probability that, absent the error, the result would have been different. Id. In analyzing such a claim, the appellate court starts with a presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Competency of counsel is determined based on the entire record below. Id.
With regard to immigration consequences, if the applicable immigration law is truly clear that an offense is deportable, the defense attorney must advise the defendantthat pleading guilty will lead to deportation. Sandoval, 171 Wn.2d at 170 (citing Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). If the potential for deportation is not clear, then defense counsel must provide a general warning that a guilty plea may carry the risk of adverse immigration consequences. Id.
Padilla provides an example when the immigration consequences are truly clear. Sandoval, 171 Wn.2d at 171. There, Jose Padilla pleaded guilty to transporting a significant amount of marijuana in his truck, an offense that was deportable under 8 U.S.C. § 1227(a)(2)(B)(i):
"Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation . . . relating to a controlled substance . . . , other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable."
Sandoval, 171 Wn.2d at 171 (alterations in original) (quoting Padilla, 559 U.S. at 368). In Padilla, the United States Supreme Court held that simply reading the text of the statute would have alerted Mr. Padilla's counsel that a guilty plea would render Mr. Padilla eligible for removal. 559 U.S. at 368.
Padilla involves the typical case where defense counsel does not know the immigration consequence of a plea but nevertheless proceeds forward without adequately warning the client. This is not the typical case. Here, the State's late amendment ofcharges at the plea hearing deprived defense counsel of the typical ability to determine the immigration consequence of the plea. For this reason, defense counsel advised his client to consult with his retained immigration attorney before pleading guilty. This was good advice. Valdovinos rejected this good advice and pleaded guilty. Good advice is not rendered deficient simply because the client rejects it.
By declaration filed in the trial court, Valdovinos claimed he pleaded guilty because he thought De Young had already approved the plea for immigration consequences. The trial court found this claim unbelievable:
It was Mr. Yedinak's impression that the defendant wanted to get the case over that day. . . . The Court discounts defendant's self-serving declaration in light of the weight of the evidence presented in Mr. Yedinak's written declaration and testimony. Furthermore, the court is mindful that during the trial court's colloquy with defendant during the plea hearing the court gave defendant an opportunity to speak with his immigration attorney prior to pleading, and warned defendant of the potential adverse immigration consequences of pleading guilty. Even with the trial court's additional warnings the defendant still wished to go forward with the plea.
Because Valdovinos cannot establish that his trial counsel performed deficiently, we conclude he did not receive ineffective assistance of counsel.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
/s/_________
/s/_________
I agree with the majority's ruling to affirm the trial court's denial of Victor Valdovinos Vazquez's motion to vacate his guilty plea to three charges in Douglas County Superior Court. I would, however, rest the affirmation on the lack of prejudice prong rather than the negligent performance of counsel prong of the ineffective assistance of counsel analysis. Valdovinos Vazquez's plea counsel should have known that a guilty plea to possession of methamphetamine merited deportation and should have warned Valdovinos Vazquez that pleading guilty would lead to certain deportation or near certain deportation. Nevertheless, the facts show that Valdovinos Vazquez would have pled guilty even if plea counsel properly advised him. Therefore, I concur with a separate opinion.
I add some details to the majority's factual recitation. Victor Valdovinos Vazquez is not...
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