State v. Vera, 1

• Decision Date: 13 October 1988
• Docket Number: CA-CR,No. 1,1
• Citation: 766 P.2d 110,159 Ariz. 237
• Parties: STATE of Arizona, Appellee, v. Armando VERA, Appellant. 12022.
• Court: Arizona Court of Appeals

Page 110

766 P.2d 110

159 Ariz. 237

STATE of Arizona, Appellee, v. Armando VERA, Appellant.

No. 1 CA-CR 12022.

Court of Appeals of Arizona,

Division 1, Department B.

Oct. 13, 1988.

Review Denied Jan. 24, 1989.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., and Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.

Law Office of Michelle Ratner by Michelle Ratner, Phoenix, for appellant.

OPINION

EUBANK, Judge.

Appellant was charged with arson of an occupied structure and pled guilty to that offense, a class two felony, in violation of A.R.S. § 13-1704. Appellant stipulated to the payment of restitution in the plea agreement. He was later sentenced to seven years imprisonment and ordered to pay $8,700 in restitution.

The charges in this case arose from a fire which appellant set in the residence of his girlfriend, whom he later married.

On appeal, appellant argues:

1. His guilty plea was not knowingly and intelligently entered because he was not fully informed of the consequences of his plea.

2. The order of restitution was improper.

VOLUNTARINESS OF APPELLANT'S PLEA

Appellant argues that his plea was not knowingly and intelligently entered because he was not advised that as an alien his guilty plea could affect his eligibility to remain in or reenter this country if he were deported. Appellant argues that in order for a plea to be intelligently made, he must understand its consequences, including the consequences of a plea on an alien's immigration status. He also suggests that he did not understand that the plea could affect his ability to become a citizen. He concludes that the trial court's failure to determine that the guilty plea was thus intelligently and knowingly entered requires that the judgment of guilt and sentence be vacated. The state argues that a trial court is not required to inform a defendant of every collateral consequence of a plea and the fact that a defendant may face deportation as a result of a guilty plea is such a consequence.

In support of his position, appellant relies on Martinez v. State, 475 So.2d 1292 (Fla.App.1985). Martinez simply followed a rule adopted in Edwards v. State, 393 So.2d 597 (Fla.App.1981), which was disapproved in State v. Ginebra, 511 So.2d 960 (Fla.1987) and State v. Fundora, 513 So.2d 122 (Fla.1987). In Ginebra the court noted that Edwards had concluded that although deportation was a collateral, rather than direct, consequence of a plea, the severity of the sanction rendered it a "unique collateral consequence" justifying special treatment. 511 So.2d at 960. The court observed that deportation was not a direct consequence of a guilty plea because the trial court had no authority concerning deportation. Id. at 961. Furthermore, the court noted that the majority of federal courts have held that failure to advise a defendant that deportation may follow from a guilty plea does not constitute ineffective assistance of counsel. Id. The court in Ginebra held that counsel's failure to advise a client of the collateral consequences of deportation did not, as a matter of law, constitute ineffective assistance of counsel. Id. at 962.

The majority of federal courts have held that deportation is a "collateral consequence to a plea of guilty and, therefore, a trial judge is not required to inform the defendant of that consequence." See, United States v. Campbell, 778 F.2d 764 (11th Cir.1985); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977) ("potential deportation of an alien defendant is deemed a collateral consequence of his guilty plea because that sanction is controlled by an agency which operates beyond the direct authority of the trial judge."); Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.1976); Nunez-Cordero v. United States, 533 F.2d 723 (1st Cir.1976); United States v. Santelises, 476 F.2d 787, 790 (2nd Cir.1973) (the trial court's failure to inform a defendant that his guilty plea would subject him to deportation did not violate due process because "it is not such an absolute consequence of conviction that we are mandated to read into traditional notions of due process a requirement that a district judge must warn each defendant of the possibility of deportation."); United States v. Parrino, 212 F.2d 919 (2nd Cir.1954), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); Government of the Virgin Islands v. Pamphile, 604 F.Supp. 753 (D.V.I.1985).

A number of state courts have also found that the possibility of deportation does not require a trial judge to inform a defendant of that consequence. See Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973); Mott v. State, 407 N.W.2d 581 (Iowa 1987); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72 (App.Div.1986); Daley v. State, 61 Md.App. 486, 487 A.2d 320, 322 (1985) (the case noted that the majority of courts do not require a judge to advise a defendant of the prospects of deportation).

The law in Arizona is in accord with these various decisions from other state and federal jurisdictions. See State v. Rodriguez, 17 Ariz.App. 553, 499 P.2d 167 (1972). The court in Rodriguez noted that, "exposure to deportation has been classified as a collateral consequence as to which no duty to inform arises." 17 Ariz.App. at 554, 499 P.2d 167. The court went on to hold that the possibility of deportation was not a direct consequence of the plea of guilty requiring a trial court to inform a defendant of the possibility of deportation. But see, Comment Collateral Consequences to a Guilty Plea in the Federal Criminal Justice System 16 Harvard Civil Rights--Civil Liberties Law Review 157 (1982). (The writer suggests that a due process analysis of the consequence of deportation leads to the conclusion that as a matter of federal constitutional law, a defendant should be advised of the possibility of deportation.)

A trial judge is not required under the Arizona Rules of Criminal Procedure or as a matter of due process to advise a defendant who pleads guilty pursuant to Rule 17.1, et seq., Arizona Rules of Criminal Procedure, that he may be subject to deportation. State v. Rodriguez, id.; United States v. Campbell; Sanchez v. United States, id. Finally, we note that there is no evidence in the record to support appellant's claim on appeal that his trial counsel did not inform him of the consequences of possible deportation. Under those circumstances, we are unable to review the issue on appeal. Cf., State v. Mohon, 3 Ariz.App. 82, 412 P.2d 79 (1966) (where a defendant's appeal from conviction was predicated in part upon matters wholly outside the record and not presented to the trial court, the court of appeals could not consider the matter for the first time on appeal); Daley v. State, id. 487 A.2d at 320 (although the defendant claimed his counsel had not advised him that deportation was a possible consequence of a plea of guilty, there was no factual support in the record for such a claim and it would not be considered on appeal).

ORDER OF RESTITUTION

The appellant in this case was ordered to pay $8,700 in restitution. In the sentencing order, the court ordered the amount to be paid within two years following release from custody or as ordered by the Board of Pardons and Paroles pursuant to A.R.S. § 31-412, whichever date first occurs. To the extent that the order granted the Board of...