State v. Gutierrez, 2016 NMCA 77

Defendant (Mexican citizen) was arrested after bringing >21 pounds of marijuana into the U.S.; charged in Luna County with possession/distribution and pleaded guilty to possession of ≥8 ounces, receiving an 18‑month suspended sentence on probation.
At plea colloquy (with interpreter), Defendant stated counsel told her deportation was a “possibility”; defense counsel told the court there was a “high likelihood” of deportation but a remote chance she could stay because of family ties.
Sentencing was continued multiple times while Defendant’s citizenship status was pursued; at sentencing counsel relayed immigration counsel’s view that non‑incarceration ‘‘should not’’ harm immigration case, but acknowledged no guarantees.
~19 months after completing probation, ICE detained Defendant for removal based on the conviction; Defendant moved under Rule 1‑060(B)(4) to withdraw her plea, alleging ineffective assistance for failure to advise of immigration consequences per State v. Paredez.
A different judge granted withdrawal after initially denying it; State appealed. The Court of Appeals affirms the district court.

Issue	State's Argument	Defendant's Argument	Held
Jurisdiction — timeliness of Rule 1‑060(B)(4) motion	Motion was untimely under criminal rules; district court lacked jurisdiction	Motion was a collateral attack under Rule 1‑060(B)(4) and thus timely	Motion properly considered under Rule 1‑060(B)(4); timely (court may entertain collateral attack)
Appealability of order granting withdrawal	Order is not final; State lacks right to appeal	Order is appealable under practical‑finality/coram nobis analogies	State has right to appeal the grant (court reasons coram nobis/post‑sentence rules and new Rule 5‑803 support appeal)
Ineffective assistance — counsel’s duty re: immigration (Paredez)	Counsel’s statements at plea hearing show adequate warning of high likelihood of deportation	Counsel failed to give specific, definite advice that deportation was virtually certain; misleading terminology ("possible")	Paredez requires specific advice; counsel’s ambiguous statements were deficient given the conviction made deportation virtually certain
Prejudice under Strickland — would Defendant have declined plea?	No clear testimony that Defendant would not have pled; State disputes prejudice	Defendant had pending citizenship efforts and strong family ties; likely would have acted differently if properly advised	Record supports reasonable inference of prejudice; withdrawal affirmed

State v. Paredez, 103 P.3d 799 (N.M. 2004) (counsel must determine immigration status and advise non‑citizen of specific immigration consequences, including if deportation is virtually certain)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance test: deficient performance and prejudice)
State v. Tran, 200 P.3d 537 (N.M. Ct. App. 2009) (motions challenging convictions on immigration‑advice grounds may be treated under Rule 1‑060(B)(4))
State v. Griego, 96 P.3d 1192 (N.M. Ct. App. 2004) (withdrawal of plea ordinarily not final; practical‑finality exception sparingly applied)
State v. Romero, 415 P.2d 837 (N.M. 1966) (Rule 1‑060 may carry forward coram nobis substantive relief)
State v. Carlos, 147 P.3d 897 (N.M. Ct. App. 2006) (general warnings about possible deportation insufficient under Paredez)