People v. Chavez-Torres, 442 P.3d 843

Background

Chavez-Torres, a Mexican-born noncitizen, pled guilty in 1996 to first-degree criminal trespass (class 5 felony) and completed probation; he did not appeal.
In 2013 DHS initiated removal proceedings based on that conviction; an immigration attorney advised the conviction rendered him ineligible for cancellation of removal and suggested plea counsel may have failed to advise on immigration consequences.
In May 2015 Chavez-Torres filed a Crim. P. 35(c) postconviction motion alleging plea counsel failed to advise him of immigration consequences; the motion was filed after the three-year collateral-attack limitations period in §16-5-402(1).
He invoked the §16-5-402(2)(d) justifiable-excuse/excusable-neglect exception, alleging he had no reason to question counsel’s advice until DHS initiated removal proceedings; he submitted the plea agreement and plea hearing transcript (neither mention immigration consequences).
The trial court summarily denied the motion as untimely; a division of the court of appeals reversed and ordered a hearing; the Colorado Supreme Court granted certiorari.

Issues

Issue	Chavez-Torres' Argument	People/State's Argument	Held
Whether a noncitizen who alleges plea counsel failed to advise about immigration consequences is entitled to a hearing on timeliness under §16-5-402(2)(d)	Alleged facts (if true) show he had no reason to investigate counsel until DHS initiated removal, so he meets justifiable excuse/excusable neglect and merits a hearing	Failure to advise generally does not establish justifiable excuse; prior cases limit relief to errors by postconviction counsel	Court held allegations, taken as true and considered with plea agreement/transcript, suffice to entitle Chavez-Torres to a hearing
Whether the court may consider plea agreement or plea colloquy when deciding to deny a §35(c) motion without a hearing	He submitted those documents and they corroborate his assertion that no immigration advisement was given	State argued reliance on other appellate cases on ignorance of law or delay	Court held the trial court may consider the plea agreement/colloquy together with the motion when deciding timeliness
Whether alleging counsel’s failure to advise can never qualify for §16-5-402(2)(d) relief (per People v. Martinez-Huerta)	Martinez-Huerta is distinguishable; failure to advise can support a hearing depending on the record and allegations	Argued Martinez-Huerta forecloses such hearings when counsel merely failed to advise	Court rejected a categorical bar—failure to advise can support a hearing in appropriate circumstances
Standard for entitlement to a timeliness hearing under §16-5-402(2)(d)	Facts alleged, if true, must establish justifiable excuse/excusable neglect	State urged restrictive reading	Court clarifies the correct legal standard: whether the motion’s allegations, assumed true, would establish justifiable excuse/excusable neglect; plea documents may be considered in conjunction

Key Cases Cited

People v. Wiedemer, 852 P.2d 424 (Colo. 1993) (articulates that a Rule 35(c) motion must allege facts that, if true, would establish justifiable excuse or excusable neglect to merit a hearing)
Close v. People, 180 P.3d 1015 (Colo. 2008) (applies Wiedemer factors and frames the standard for entitlement to a §16-5-402(2)(d) timeliness hearing)
Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen defendants about deportation risk from a guilty plea)
Chaidez v. United States, 568 U.S. 342 (2013) (addresses the scope of Padilla and counsel’s duty regarding immigration advice)
People v. Martinez-Huerta, 363 P.3d 754 (Colo. App. 2015) (court of appeals decision discussed and distinguished regarding failure-to-advise claims)
People v. Pozo, 746 P.2d 523 (Colo. 1987) (recognizes defense counsel’s duty to investigate immigration law when aware client is an alien)
People v. Mershon, 874 P.2d 1025 (Colo. 1994) (addresses when a defendant has a present need to challenge a conviction)