2020 CO 59
Colo.2020Background
- Eswin Ariel Figueroa-Lemus, a lawful permanent resident, pled guilty to possession of cocaine under a statutorily authorized two-year deferred judgment on May 6, 2013.
- At the plea hearing he acknowledged that the plea could make him deportable; defense counsel and an immigration attorney both told him the plea would likely lead to deportation, and the defendant agreed on the record.
- ICE later arrested the defendant; the People moved to revoke the deferred judgment, and the defendant filed a Crim. P. 32(d) motion (Oct. 2013) to withdraw his plea claiming ineffective assistance for failure to advise that he would be detained without bond during deportation proceedings.
- At the Crim. P. 32(d) hearing, counsel conceded he did not tell the defendant he would face mandatory detention during removal proceedings; the trial court found counsel credible and denied the motion, concluding the deportation advisement was adequate.
- The court of appeals affirmed but (mistakenly) entertained immediate appellate review; the Colorado Supreme Court vacated the appellate judgment for lack of jurisdiction but exercised original jurisdiction to decide the merits, affirming the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a Crim. P. 32(d) motion to withdraw a plea entered under a deferred-judgment stipulation is immediately appealable | People: No immediate appeal; deferred judgment is not a final, appealable judgment until revocation and entry of sentence and conviction | Figueroa-Lemus: Immediate review is necessary or he will lack an adequate remedy later | Held: Deferred judgment is not final; no immediate right to appeal; court of appeals lacked jurisdiction. Supreme Court nonetheless exercised original jurisdiction to reach merits. |
| Whether counsel was constitutionally ineffective for failing to advise that deportation proceedings would result in mandatory detention without bond | People: Counsel and immigration attorney adequately advised that the plea would lead to deportation; no requirement to advise about detention in removal proceedings | Figueroa-Lemus: Counsel should have warned that federal removal proceedings would lead to mandatory detention without bond and would have rejected the plea if so advised | Held: Padilla requires correct advice only as to clear immigration consequences; detention during removal proceedings is not a required advisement here. Trial court did not abuse its discretion in denying the motion. |
| Whether Crim. P. 32(d) is the appropriate vehicle for challenging pleas taken under deferred-judgment stipulations | People: Rule 32(d) does not authorize immediate appellate review; deferred pleas are nonfinal | Figueroa-Lemus: Crim. P. 32(d) allows withdrawal requests before revocation and should permit meaningful review | Held: Crim. P. 32(d) is available to seek discretionary withdrawal pre-revocation (as in Kazadi), but it does not confer an immediate right to appellate review; review is typically after final judgment. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise regarding deportation when consequences are clear)
- Kazadi v. People, 291 P.3d 16 (Colo. 2012) (Rule 32(d) may be used to seek withdrawal of pleas taken under deferred-judgment stipulations)
- People v. Carbajal, 198 P.3d 102 (Colo. 2008) (a deferred judgment is not a final, appealable judgment)
- Juarez v. People, 457 P.3d 560 (Colo. 2020) (interpreting Padilla: counsel must inform when federal law clearly makes a conviction deportable)
- People v. Chippewa, 751 P.2d 607 (Colo. 1988) (Crim. P. 32(d) permits discretionary withdrawal based on fairness rather than only constitutional error)
- Paul v. People, 105 P.3d 628 (Colo. 2005) (court may exercise original jurisdiction in limited cases to provide review when delaying to final judgment would be unjust)