People v. Torres
2016 COA 169
| Colo. Ct. App. | 2016Background
- Chavez-Torres, a Mexican national who entered the U.S. as a child, pleaded guilty in high school to first-degree criminal trespass, was sentenced to probation, and successfully completed it.
- Seventeen years after the conviction, DHS initiated removal proceedings alleging his conviction made him removable; an immigration attorney told him the trespass conviction made him ineligible for cancellation of removal and suggested his plea counsel may have been ineffective for not advising immigration consequences.
- Chavez-Torres filed an untimely Crim. P. 35(c) postconviction motion alleging plea counsel, knowing he was not a citizen, advised him to plead guilty without advising of immigration consequences and that he would have gone to trial if properly advised.
- The district court summarily denied the motion as time-barred, found the Martinez-Huerta line of cases foreclosed a hearing on excusable neglect, and concluded the State would suffer great prejudice from the delay.
- On appeal the court evaluated whether the motion alleged facts that, if true, would establish justifiable excuse or excusable neglect under § 16-5-402(2)(d) and the Wiedemer factors, and whether the ineffective-assistance prejudice prong was established on the existing record.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Chavez-Torres) | Held |
|---|---|---|---|
| Whether allegations that plea counsel advised a known non-citizen to plead guilty without advising of immigration consequences can warrant a hearing on justifiable excuse/excusable neglect for an untimely Crim. P. 35(c) motion | Martinez-Huerta and precedent generally bar hearings where counsel merely failed to advise; absence of timely challenge not excused by ignorance | Allegations show counsel had an affirmative duty to advise non-citizen; lack of such advice prevented earlier challenge and implicates Wiedemer factors | Reversed: such allegations can warrant a hearing; Martinez-Huerta does not foreclose hearings in these circumstances |
| Whether the district court was justified in finding the State would suffer great prejudice from the delay | Passage of time undermines State's ability to defend | Record contains plea agreement and transcripts; prosecution did not respond; counsel is available — no evidentiary support for great prejudice | Reversed: record does not support finding of great prejudice; factual inquiry required |
| Whether Chavez-Torres pleaded sufficient facts to establish Strickland/Hill prejudice for ineffective-assistance claim without a hearing | Argued insufficient to show reasonable probability he would have rejected the plea | Alleged family ties in U.S. and lack of ties to Mexico make rejection rational; unrebutted allegations support prejudice | Denied People’s alternative: allegations adequately plead prejudice to require a hearing |
| Whether Martinez-Huerta establishes a per se rule that failure to advise on immigration consequences cannot constitute excusable neglect | Martinez-Huerta interpreted broadly to bar such claims | Martinez-Huerta only held attorney’s affirmative erroneous advice warranted a hearing; it did not create a per se rule for immigration-advice failures | Court rejects broad reading of Martinez-Huerta; no per se rule, remand for hearing |
Key Cases Cited
- Close v. People, 180 P.3d 1015 (Colo. 2008) (defendant need only allege facts that, if true, establish justifiable excuse or excusable neglect to merit a hearing)
- Wiedemer v. People, 852 P.2d 424 (Colo. 1993) (articulated non-exhaustive factors courts must weigh when deciding excusable neglect)
- Pozo v. People, 746 P.2d 523 (Colo. 1987) (attorney has duty to investigate and advise known non-citizen clients of immigration consequences)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about risk of deportation; failure can be deficient performance)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes ineffective-assistance standard: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice in guilty plea context requires reasonable probability that defendant would have rejected plea and gone to trial)
- People v. Alexander, 129 P.3d 1051 (Colo. App. 2005) (absence of advice about postconviction time limits did not constitute excusable neglect)
- People v. Slusher, 43 P.3d 647 (Colo. App. 2001) (failure to advise about UMDDA did not constitute excusable neglect under those facts)