State of Texas v. Guerrero, Ex Parte Marcelino, 2013 Tex. Crim. App. LEXIS 820

Background

Guerrero, an undocumented immigrant, sought cancellation of removal and filed a motion to vacate a 1998 misdemeanor judgment for possession of less than two ounces of marijuana, arguing involuntariness due to lack of counsel and advisement on deportation.
He had pled guilty in 1998 with deferred adjudication; he later completed the 180-day supervision in 2000.
In 2009–2011, Guerrero faced deportation proceedings after admitting undocumented status when stopped for traffic violations.
The trial court vacated the 1998 judgment, finding Guerrero was never properly admonished about immigration consequences and that counsel should have been provided.
The Court of Appeals affirmed, allowing consideration of counsel’s unsworn statements as evidence and upholding that Guerrero’s waiver of counsel was not knowing and voluntary.
The Texas Supreme Court reversed, holding counsel’s statements were not competent evidence, Padilla does not retroactively apply, and the 1998 deferred-adjudication judgment could be reinstated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s unsworn statements can be evidence	Guerrero contends yes, to establish lack of counsel.	State contends no, unsworn statements are not competent evidence.	No; unsworn statements are not competent evidence.
Whether waiver of counsel and the plea were invalid for lack of deportation-advisement	Guerrero argues lack of advisement renders waiver involuntary.	State argues waiver was knowing, intelligent, and voluntary; Padilla retroactivity does not apply here.	Waiver and plea were knowing, intelligent, and voluntary; Padilla not retroactive here.
Whether Padilla applies retroactively to collateral review of final state convictions	Guerrero relies on Padilla to require deportation advisement.	State argues Padilla is not retroactive for collateral attacks on final convictions.	Padilla does not apply retroactively; no relief on that basis.
Whether a misdemeanor conviction via deferred adjudication can be treated as a ‘conviction’ for immigration purposes at the time of the plea	Guerrero asserts potential impact on immigration status and consequences.	State maintains deferred adjudication can be a conviction for immigration purposes, but Padilla limits retroactivity.	Deferred adjudication can be treated as a conviction for immigration purposes; not retroactive for relief here.
Whether Article 26.13 admonishments were required in this misdemeanor case	Guerrero contends required admonishments were not provided.	State argues admonishments in misdemeanor cases are not required.	Admonishments under Article 26.13 were not required for this misdemeanor.

Key Cases Cited

Padilla v. Kentucky, 559 U.S. 356 (2010) ( Sixth Amendment right to advise on deportation consequences; not retroactive here)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla rule not retroactive)
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (deportation consequences tied to small marijuana offense; categorical approach)
Ex parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013) (adopts Padilla retroactivity framework for state-law habeas context)
Tovar v. Iowa, 541 U.S. 77 (2004) (burden on defendant to prove waiver of counsel was knowing and intelligent)
Ex parte Villanueva, 252 S.W.3d 391 (Tex. Crim. App. 2008) (habeas procedure and proper labeling; trial court jurisdiction principles)
Johnson v. Zerbst, 304 U.S. 458 (1938) (waiver of counsel permitted if defendant knowingly waives rights)
Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003) (Article 26.13 admonishments do not apply to misdemeanors)