2014 COA 175
Colo. Ct. App.2014Background
- Vicente‑Sontay, an undocumented Guatemalan, used a false SS card and Missouri ID on an I‑9 and was arrested after an HSI I‑9 audit led police to an outstanding warrant for the alias he had used; he confessed his true name and purchased the false documents.
- He pleaded guilty to criminal impersonation while represented by counsel, received probation (later revoked), and was transferred to ICE custody after release.
- He filed a Crim. P. 35(c) petition alleging plea counsel was ineffective for: not moving to suppress I‑9 evidence under IRCA, failing to advise that the plea was a crime involving moral turpitude (CIMT) and would bar cancellation of removal, and failing to obtain a Kʼiche interpreter.
- The postconviction court held a five‑day evidentiary hearing, received testimony from counsel, immigration and linguistics experts, HSI and probation officers, and issued a detailed 36‑page order denying relief.
- The court found (1) an IRCA suppression motion, even if successful, would not have excluded his post‑arrest confession; (2) immigration consequences were not sufficiently clear at the time of plea (so counsel’s general warning was adequate); and (3) Vicente‑Sontay communicated adequately in Spanish such that a Kʼiche interpreter was not required and his plea was knowing, voluntary, and intelligent.
Issues
| Issue | Plaintiff's Argument (Vicente‑Sontay) | Defendant's Argument (People / Counsel) | Held |
|---|---|---|---|
| Failure to investigate/pursue suppression under IRCA (I‑9) | Counsel should have moved to suppress I‑9 and related evidence under 8 U.S.C. §1324a(b)(5); prejudice from not pursuing suppression | Even assuming IRCA barred use of I‑9, the confession (from a valid warrant arrest) would remain admissible; counsel litigated stronger suppression issues and Vicente‑Sontay would have pleaded anyway | Denied. No prejudice: confession unaffected; defendant would have pleaded despite potential IRCA motion |
| Failure to advise that criminal impersonation is a CIMT | Counsel failed to tell him plea was a CIMT causing mandatory deportation and inadmissibility | At plea time law was unclear/split; counsel warned of risk of adverse immigration consequences which satisfied Padilla when law is ambiguous | Denied. Advice adequate because immigration consequences were not succinct, clear, and explicit |
| Failure to advise loss of eligibility for cancellation of removal | Counsel should have warned plea would bar future cancellation of removal | Eligibility for cancellation was not clearly determined by the conviction at that time; Padilla required only a general warning when law is uncertain | Denied. No requirement to give detailed advice where eligibility unclear; no prejudice shown |
| Failure to obtain Kʼiche interpreter / plea voluntariness | Native Kʼiche speaker who understands little Spanish; lack of Kʼiche interpreter rendered plea uninformed | Record shows repeated Spanish interpretation, multiple Spanish‑proficient officers/agent communicated effectively, and plea counsel had no indication of misunderstanding | Denied. Record supports that he understood Spanish sufficiently and plea was knowing, voluntary, intelligent |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
- Padilla v. Kentucky, 559 U.S. 356 (counsel must give clear advice when immigration consequences are "succinct, clear, and explicit")
- Kimmelman v. Morrison, 477 U.S. 365 (ineffective assistance where claim rests on failure to litigate suppression: must show suppression claim meritorious and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for ineffective assistance at plea stage)
- Premo v. Moore, 562 U.S. 115 (deference to counsel choices at plea stage; danger of hindsight)
- Rodriguez‑Heredia v. Holder, 639 F.3d 1264 (definition and treatment of crimes involving moral turpitude)
- Beltran‑Tirado v. INS, 213 F.3d 1179 (circuit authority on whether using false SSN for employment is a CIMT)
- Marin‑Rodriguez v. Holder, 710 F.3d 734 (contrasting circuit authority on CIMT question)
- Dzerekey v. Holder, 562 Fed.Appx. 659 (discussion of categorical/modified categorical approaches for CIMT analysis)