State v. Gutierrez, 10 N.M. 416

Background

Defendant (Mexican citizen) was arrested with >21 lbs of marijuana and charged in New Mexico; she does not speak English and proceedings used an interpreter.
Defendant pled guilty pursuant to a plea agreement to possession (eight ounces or more) with an 18‑month suspended sentence on probation; court colloquy referenced possible deportation.
At plea and sentencing, defense counsel and the court discussed immigration consequences; Defendant said she was told deportation was a “possibility,” counsel told the court there was a “high likelihood” but a “remote chance” she could stay.
Defendant completed probation; ~19 months later ICE detained her for deportation based on the conviction. She moved under Rule 1‑060(B)(4) to withdraw her plea, alleging ineffective assistance for failure to advise of immigration consequences.
The district court (after initially denying then reconsidering) granted withdrawal of the plea; the State appealed.
The Court of Appeals affirmed, holding counsel’s advice was deficient under Paredez because deportation was virtually certain and Defendant was left with the impression it was only a possibility.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether Rule 1‑060(B)(4) motion was a timely collateral attack and the district court had jurisdiction	Motion was untimely under criminal plea‑withdrawal rules; district court lacked jurisdiction	Motion was a collateral, post‑sentence attack under Rule 1‑060(B)(4) and thus timely	Court: motion properly considered under Rule 1‑060(B)(4); timely and not a nullity
Whether the State may appeal the grant of a Rule 1‑060(B)(4) post‑sentence plea withdrawal	State argued it should be allowed to appeal	Defendant argued order was not final/appealable because case reinstated for trial	Court: State has right to appeal such grants (practical finality + Rule 5‑803 guidance)
Whether counsel’s advice about immigration consequences satisfied Paredez and Strickland	Counsel’s testimony that he advised of a high likelihood, and plea colloquy mentioning possibility, were adequate	Defendant said she was told only it was a "possibility" and would not have pled if she knew deportation was virtually certain	Court: Counsel’s advice was deficient under Paredez — deportation was virtually certain and defendant was misled; prejudice shown; plea withdrawal affirmed
Whether Defendant showed prejudice from deficient advice (Strickland prong 2)	State argued defendant didn’t show she would have refused plea	Defendant pointed to ongoing citizenship efforts and ties (father, U.S.‑citizen children) that made a different choice plausible	Court: Prejudice proven given realistic possibility defendant would not have pled if properly advised; valid basis to withdraw plea

Key Cases Cited

State v. Paredez, 103 P.3d 799 (N.M. 2004) (counsel must determine immigration status and advise non‑citizen of specific immigration consequences, including whether deportation is virtually certain)
State v. Tran, 200 P.3d 537 (N.M. Ct. App. 2009) (post‑sentence collateral attack under Rule 1‑060(B)(4) appropriate for inadequate immigration advice)
State v. Griego, 96 P.3d 1192 (N.M. Ct. App. 2004) (order permitting plea withdrawal generally not final; practical‑finality doctrine limited)
State v. Carlos, 147 P.3d 897 (N.M. Ct. App. 2006) (general warnings about immigration consequences insufficient; counsel must identify applicable federal statutes and predict likelihood of deportation)
State v. Tejeiro, 345 P.3d 1074 (N.M. Ct. App. 2015) (examples of inadequate Paredez advice clarified; counsel must give definite prediction when deportation likely)
State v. Favela, 343 P.3d 178 (N.M. 2015) (reaffirming Paredez standards for advising non‑citizen clients)
Romero v. State, 415 P.2d 837 (N.M. 1966) (Rule 1‑060 intended to subsume common‑law writs like coram nobis for post‑conviction relief)