2018 COA 51
Colo. Ct. App.2018Background
- Defendant Eswin Figueroa-Lemus pled guilty to possession of a Schedule II controlled substance and stipulated to a two-year deferred judgment on that count; DUI was placed on probation.
- About five months later he filed a Crim. P. 32(d) motion to withdraw the guilty plea, arguing counsel (and an immigration adviser) failed to advise him of clear adverse immigration consequences.
- He alleged counsel failed to advise that the plea would cause mandatory deportation, destroy cancellation of removal eligibility, create permanent inadmissibility, and mandate immigration detention without bond.
- At an evidentiary hearing, defense counsel and the immigration adviser testified they repeatedly warned defendant he would be deported and would be permanently inadmissible; defendant denied being so informed.
- The district court denied the Crim. P. 32(d) motion, finding counsel’s testimony credible; the People moved to dismiss the appeal for lack of jurisdiction because the deferred judgment remained unrevoked. The Court of Appeals (majority) affirmed jurisdiction and the denial of the motion; one judge dissented on jurisdictional grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appellate jurisdiction over denial of Crim. P. 32(d) when deferred judgment still in effect | People: No appellate jurisdiction because deferred judgment is nonfinal and not yet revoked; relief, if any, is via C.A.R. 21 | Figueroa-Lemus: Crim. P. 32(d) provides a district-court remedy and appellate review should be available after denial | Court: Kazadi allows Crim. P. 32(d) challenges to deferred judgments and appellate review is available; appeal not dismissed |
| Whether counsel provided constitutionally adequate advice about immigration consequences | People: Counsel informed defendant; no deficient performance | Figueroa-Lemus: Counsel failed to advise clearly of mandatory deportation, inadmissibility, loss of cancellation, and mandatory detention | Court: Court defers to district court credibility findings; counsel adequately warned of deportation, inadmissibility, and loss of cancellation; counsel not deficient |
| Whether counsel had duty to advise about mandatory immigration detention without bond | People: No controlling authority showing detention is a clear consequence; not required | Figueroa-Lemus: Counsel should have advised mandatory detention as an adverse consequence | Court: No authority required such advice; ABA standards not binding; defendant failed to show prejudice or that counsel was deficient |
| Proper remedy for defendants challenging deferred-judgment pleas | People: Appellate review should be discretionary (C.A.R. 21) if any | Figueroa-Lemus: Denial of Crim. P. 32(d) should be appealable to preserve meaningful review | Court: Appellate review of Crim. P. 32(d) denials is appropriate to give effect to Kazadi and to avoid time-bar and due-process problems |
Key Cases Cited
- Kazadi v. People, 291 P.3d 16 (Colo. 2012) (Crim. P. 32(d) permits withdrawal motions attacking deferred judgments; sets standards for review)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen defendants of clear deportation consequences)
- People v. Carbajal, 198 P.3d 102 (Colo. 2008) (deferred judgment is not a final judgment and is ordinarily not subject to direct appellate review while in effect)
- Hill v. Lockhart, 474 U.S. 52 (1985) (ineffective-assistance standard for plea-stage claims: deficient performance and prejudice)
- People v. Corrales-Castro, 395 P.3d 778 (Colo. 2017) (Crim. P. 32(d) does not provide a remedy after deferred-judgment terms are completed and plea is withdrawn)
- People v. Campos-Corona, 343 P.3d 983 (Colo. App. 2013) (controlled-substance conviction carries a succinct, straightforward removal consequence)