v. Alvarado Hinojos
444 P.3d 755
Colo.2019Background
- Defendant Frederico Alvarado Hinojos, a Mexican national, pled guilty in 2007 to menacing (deferred judgment) and third-degree assault (probation); misdemeanor conviction later terminated in 2009.
- Plea agreement contained a general immigration advisement: plea "may result in deportation and/or exclusion ... or denial of naturalization."
- Alvarado Hinojos alleges plea counsel told him the plea "would not have adverse immigration consequences," and that he relied on that advice.
- Years later he consulted an immigration attorney, learned the plea had immigration consequences, and filed an untimely Crim. P. 35(c) motion raising ineffective assistance based on misadvice.
- Trial court denied the motion as untimely without a hearing; the court of appeals reversed and ordered a hearing; Colorado Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a noncitizen alleging counsel misadvice about immigration consequences is entitled to a hearing on timeliness under §16-5-402(2)(d) | Alvarado Hinojos: his allegations that counsel affirmatively misadvised him, which he relied on, if true, establish justifiable excuse/excusable neglect and warrant a hearing | People: plea paperwork warned of immigration risk, so defendant had reason to investigate; allegations alone cannot defeat statutory time bar without a hearing only when record supports it | Court: No hearing. When plea agreement/transcript are submitted, court may consider them with the motion; here plea advisement put defendant on notice to investigate, so allegations (even if assumed true) do not establish justifiable excuse/excusable neglect |
| Whether courts may deny a Rule 35(c) hearing based on plea agreement or plea-colloquy in the record | Alvarado Hinojos: reliance on counsel is reasonable; plea paperwork does not conclusively defeat his factual claim that counsel misadvised him | People: allowing such motions to force hearings despite contrary plea paperwork would flood courts; plea record is properly considered pre-hearing | Court: Yes. Trial courts may consider plea agreement/transcript and deny hearing where they foreclose the alleged excuse |
| Proper standard for entitlement to a hearing under Wiedemer/Close | Alvarado Hinojos: facts alleged that, if true, could establish excusable neglect | People: facts must, if true, establish excusable neglect; court should evaluate in light of record | Court: Clarifies standard: whether allegations, if true, would constitute justifiable excuse/excusable neglect entitling defendant to a hearing |
| Scope of decision (whether it creates broad rule for ineffective-assistance misadvice claims) | Alvarado Hinojos: decision should permit hearings where counsel misadvised and defendant reasonably relied | People: concern about unlimited late filings | Court: Narrow — limited to claims where noncitizen invokes subsection (2)(d) based on counsel's alleged misadvice about immigration consequences; does not extend to other ineffective-assistance contexts |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (Counsel must advise noncitizen clients about clear deportation consequences of a plea)
- Chaidez v. United States, 568 U.S. 342 (reaffirms counsel's Sixth Amendment duty regarding deportation advice post-Padilla developments)
- Close v. People, 180 P.3d 1015 (Colo. 2008) (standard for entitlement to a Crim. P. 35(c) hearing on timeliness)
- Wiedemer v. People, 852 P.2d 424 (Colo. 1993) (defendant need only allege facts that, if true, would establish justifiable excuse/excusable neglect)
- People v. Mershon, 874 P.2d 1025 (Colo. 1994) (discusses present need to challenge a conviction)
- People v. Pozo, 746 P.2d 523 (Colo. 1987) (defense counsel may be required to investigate immigration law when client is an alien)
- Kazadi v. People, 291 P.3d 16 (Colo. 2012) (court may deny a Crim. P. 35(c) hearing when motion, files, and record clearly show allegations lack merit)