Tafoya v. State
| Decision Date | 11 August 1972 |
| Docket Number | No. 1429,1429 |
| Citation | 500 P.2d 247 |
| Parties | Francisco TAFOYA, Appellant, v. STATE of Alaska, appellee. |
| Court | Alaska Supreme Court |
Stanley P. Cornelius, Anchorage, for appellant.
Seaborn J. Buckalew, Jr., Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee.
Before BONEY, C. J., and CONNOR and ERWIN, JJ.
Francisco Tafoya appeals from the denial of his motion to withdraw his guilty plea.
On December 30, 1965, Tafoya, together with his codefendant Alberto Castro, pleaded not guilty to charges of kidnap and rape. Almost a year later, as a result of plea bargaining, they were permitted to withdraw their pleas. The kidnap charge was then dismissed, and they pleaded guilty to rape. The court followed the prosecutor's recommendation that Tafoya be sentenced to three years, suspended, and that he serve two years on probation.
Tafoya is an alien, a Mexican citizen. He is thus deportable for conviction of a crime involving moral turpitude under 8 U.S.C. § 1251(a)(4). 1 However, such a conviction will not furnish grounds for deportation if the sentencing court, at the time of sentencing or within 30 days thereof, makes a recommendation to the Attorney General of the United States that the alien not be deported. 2
From the record it is apparent that the attorneys then representing Tafoya and Castro knew that their clients were aliens. A recommendation against deportation was not sought either during plea bargaining or at the time that the guilty pleas were entered apparently neither attorney was aware either of the possibility of deportation or of the means to forestall such a possibility. Counsel for Castro was first informed of the threat of deportation by Castro and Tafoya on December 1, 1966, twenty-seven days after they had pleaded guilty.
Counsel for Castro immediately moved to amend the judgments to include a recommendation that neither Castro nor Tafoya be deported. 3 The superior court denied the motion to amend the sentences of Tafoya and his codefendant. In so ruling, the court specifically declined to recommend either that Tafoya be deported or that he not be deported. Approximately two months later, Tafoya, through his own attorney, again sought to amend the sentence by having the trial court make a recommendation to the Attorney General against deportation. Contrary to the state's earlier position, on this occasion it did not oppose Tafoya's motion. Apparently, because of the lack of opposition the superior court granted Tafoya's motion to amend the sentence. 4
Tafoya's two-year probationary period expired in November 1968, at which time the Division of Corrections recommended that his probation be terminated. The recommendation that probation be terminated was approved by the sentencing judge. One year later, when Tafoya's three-year suspended sentence was completed, he moved to withdraw his plea of guilty and to vacate the sentence he had fully served. 5 The reasons advanced for taking this action were that he had been ordered to leave the United States as a result of his conviction of the crime of rape and that he would not have pleaded guilty had he known of the possibility of deportation. After the hearing, Tafoya's petition for post-conviction relief was denied. Tafoya brings this appeal from the superior court's denial of his application for post-conviction relief.
Tafoya argues first that his unawarencess of all of the consequences of a guilty plea renders his plea involuntary and that therefore he must be allowed to withdraw it.
Alaska Rule of Criminal Procedure 11 provides in pertinent part that:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.
Unlike Federal Rule of Criminal Procedure 11, the federal counterpart to our rule, Alaska Rule of Criminal Procedure 11 does not explicity require that the trial court first address the defendant personally to determine whether the plea is made voluntarily and with understanding of the nature of the charge and 'the consequences of the plea.' 6 In Ingram v. State 7 this court construed Alaska's Rule 11 in a manner which in effect brought our Rule 11 into conformity with the provision found in Federal Rule 11, which conditions the voluntariness of a guilty plea on the accused's understanding of the nature of the charge and the consequences of the plea. As we stated in Ingram:
We need not explore here the scope of the term 'consequences'. Suffice it to say that an 'understanding of the nature of the charge', within the meaning of Criminal Rule 11, encompasses an awarencess of the consequences of a guilty plea, that one of the consequences an accused must have knowledge of, gained either from his counsel or the court, is not only the maximum sentence that might be imposed, but the mandatory minimum sentence as well. . . . 8
In reaching this interpretation in Ingram, we relied in part on Kercheval v. United States, where the Court said:
Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. 9
We are thus faced with the necessity of exploring the scope of the term 'consequences,' as used in this court's interpretation in Ingram, in Alaska Rule of Criminal Procedure 11 in order to reach the ultimate question whether Tafoya has made a sufficient showing of manifest injustice under Rule 32(d) to warrant relief. 10 As in Ingram, we turn to federal law.
In United States v. Cariola, 11 which we cited in Ingram, the defendant discovered, sixteen years after entering his guilty plea, that his conviction disenfranchised him in a state to which he had moved. The court rejected his application to withdraw his plea, stating that:
(U)nsolicited advice concerning the collateral consequences of a plea which necessitates judicial clairvoyance of a superhuman kind can be neither expected nor required. 12
Federal judicial precedent, in line with Cariola, has established that an accused need not be informed about every conceivable collateral effect the conviction might have prior to the acceptance of a plea of guilty. 13 The leading federal case concerning deportation as a consequence of a guilty plea is United States v. Parrino. 14 Like Tafoya, Parrino had fully served his sentence and was faced with deportation as a result of his conviction when he attempted to withdraw his guilty plea. The court denied Parrino's request, holding that the possibility of deportation was a collateral consequence. 15 The Parrino rule has been consistently followed in the federal courts. 16 In Joseph v. Esperdy 17 the defendant argued that the federal court should vacate his state conviction because the failure of the state judge to advise him that his conviction would subject him to deportation made his plea involuntary. The court denied him relief, explaining its reliance on the direct-collateral consequences dichotomy as follows:
(E)ven in this Court, where it is mandated that the full range of consequences be set out (citation to Federal Rule of Criminal Procedure 11) it seems onerous and absurd to expect a judge to explain to each and every defendant who pleads guilty the full range of collateral consequences of his plea and, indeed, to anticipate what those collateral consequences are. 18
We agree. It would indeed to onerous and absured to require the trial judge to delve into all the peculiarities of each defendant's birth, nationality, occupation, and other circumstances, and to apprise him of all the collateral consequences possibly flowing therefrom. That burden should properly fall on the defendant and his counsel.
We therefore hold that the possibility of deportation is a collateral consequence of conviction, Tafoya's ignorance of which did not render his plea involuntary.
Having concluded that the burden of advising a defendant of collateral consequences falls not on the court, but on the defendant's counsel, we must now consider Tafoya's argument that he was denied adequate assistance of counsel. The essence of his argument is that the failure of his counsel to advise him of the possibility of deportation constituted a deprivation of the effective assistance of counsel as guaranteed him by the United States 19 and Alaska Constitutions. 20
The standard employed in Alaska to test the competency of counsel is well settled. As we stated in White v. State:
The criterion employed is that if the conduct of counsel was so incompetent as to deprive his client of a trial in any genuine sense-making that trial a mockery and a farce-then the defendant is entitled to a new trial . . ..
The 'mockery and farce' test is a relatively stringent one. . . . (W)e must consider the entire proceedings and the whole record to decide whether counsel's conduct fell short of the mark. The only workable standard is to determine whether the proceedings as a whole have judicial character. Particular errors or claimed errors of counsel are not enough. The proceedings must be so tainted that there was an absence of a genuine trial in any reasonable sense. 21
The standard was further elaborated upon by this court in Dimmick v. State:
The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense. . . . 22
The same 'mockery and farce' standard applies to counsel representing a defendant entering a guilty plea. 23
We thus must determine if Tafoya was provided genuine proceedings in a reasonable sense and if those proceedings were of a judicial character. Indirectly, the dichotomy between...
To continue reading
Request your trial
-
Chaidez v. United States
...States v. Campbell, 778 F.2d 764, 768–769 (C.A.11 1985).8 Rumpel v. State, 847 So.2d 399, 402–405 (Ala.Crim.App.2002) ; Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972) ; State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995) ; Niver v. Commissioner of Correction, 101 Conn.App. ......
-
State v. Aquino, 24431.
...Islands v. Pamphile, 604 F.Supp. 753, 756-57 (D.Vi.1985); Oyekoya v. State, 558 So.2d 990, 990-91 (Ala.Crim.App.1989); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245 (Ariz.......
-
State v. Zarate
...520 Pa. 552, 555 A.2d 92 (1989); State v. Ginebra, 511 So.2d 960 (Fla.1987); Mott v. State, 407 N.W.2d 581 (Iowa 1987); Tafoya v. State, 500 P.2d 247 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 904 P.2d 1245 (Ariz.App.1995); State v. Santos, 136 Wis.2d 528, 401 N.W.2d 856 (Wis.App.1987); ......
-
Downs-Morgan v. U.S.
...Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.1976); Michel v. United States, 507 F.2d 461, 464-65 (2d Cir.1974); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972) (construing similar rule using federal precedent), 7 cert. denied, 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 We conclude ......