The People of the State of Colorado, Plaintiff-Appellee, v. Eswin Ariel Figueroa-Lemus, Defendant-Appellant.
No. 14CA1181
COLORADO COURT OF APPEALS
April 19, 2018
2018COA51
Jefferson County District Court No. 12CR2874, Honorable Christie A. Bachmeyer, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
April 19, 2018
2018COA51
No. 14CA1181, People v. Figueroa-Lemus — Criminal Procedure — Withdrawal of Plea of Guilty or Nolo Contendere — Deferred Judgment and Sentence
A division of the court of appeals concludes that, following Kazadi v. People, 2012 CO 73, 291 P.3d 16, a defendant may challenge an unrevoked deferred judgment under
The dissent concludes that the court of appeals lacks jurisdiction to review the denial of a
Considering the merits of the motion to withdraw the guilty plea, the majority concludes that the defendant did not establish a
Accordingly, the court affirms the district court‘s order.
Division I
Opinion by JUDGE TAUBMAN
Richman, J., concurs
Furman, J., dissents
Announced April 19, 2018
Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
I. Background
¶ 2 Figueroa-Lemus pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced Figueroa-Lemus to two years of probation.
¶ 3 About five months later, Figueroa-Lemus filed a
¶ 4 After an evidentiary hearing, the district court denied the motion.
¶ 5 Figueroa-Lemus appealed the district court‘s order denying the
¶ 6 Initially, we announced an opinion based, in part, on a case that had been previously published by a division of this court, People v. Sosa, 2016 COA 92W, 395 P.3d 1144. We did not discover that Sosa had been withdrawn (due to a reporting error on Westlaw) until the People filed a petition for rehearing. We then withdrew our original opinion and ordered Figueroa-Lemus to respond to the arguments set forth in the People‘s petition for rehearing. Having reviewed the People‘s motion to dismiss, the briefs, the People‘s petition for rehearing, and the response, we issue the following opinion.1
II. Jurisdiction
¶ 7 Every court has the authority to decide the question of its own jurisdiction. See In re Water Rights of Elk Dance Colo., LLC, 139 P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial appellate jurisdiction over final judgments entered by a district
¶ 8 A deferred judgment is not a final judgment. See People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, a deferred judgment may not be subjected to either
¶ 9 Nevertheless, a defendant may challenge a deferred judgment under
¶ 10 Like the defendant in Kazadi, Figueroa-Lemus pleaded guilty to a drug felony and stipulated to a deferred judgment on that count. The deferred judgment remains in effect, and he has not yet been sentenced on that count. Thus, we conclude that
¶ 11 We further conclude that we may review the district court‘s order denying the
¶ 12 In reaching this conclusion, we reject the People‘s argument that
¶ 13 Third, if appellate review of the denial of a
¶ 14 For these reasons, we will review the order denying Figueroa-Lemus‘s
III. Crim. P. 32(d) Motion
¶ 15 Figueroa-Lemus argues that his guilty plea was not made knowingly, voluntarily, and intelligently because Ferszt never informed him of the clear immigration consequences of the plea. He contends that Ferszt failed to advise him that pleading guilty to the crime of possession of a schedule II controlled substance would (1) render him permanently inadmissible to the United States; (2) subject him to mandatory detention during immigration proceedings; (3) render him ineligible for the defense of cancellation of removal; and (4) subject him to mandatory deportation from the United States. We disagree.
A. Standard of Review
¶ 16 We review the district court‘s denial of a
B. Crim. P. 32(d) Standards
¶ 17 A defendant does not have an absolute right to withdraw a guilty plea. See Kazadi, ¶ 14, 291 P.3d at 21. However, a court may allow a defendant to do so if he has shown a fair and just reason for the withdrawal — in other words, if denial of the request would subvert justice. See id.
¶ 18 The defendant has the burden of establishing that there is a fair and just reason to withdraw the guilty plea. See Crumb v. People, 230 P.3d 726, 730 (Colo. 2010). A defendant can do so by showing that the plea was made involuntarily. See id. A plea may be made involuntarily if a defendant does not completely understand the consequences of the plea and it is not the result of a free and rational choice. See People v. Kyler, 991 P.2d 810, 816 (Colo. 1999).
¶ 19 The ineffective assistance of counsel may also constitute a fair and just reason to withdraw the plea. See Kazadi, ¶ 21, 291 P.3d at 23. To prevail on a
C. Ineffective Assistance of Counsel Standards
¶ 20 An ineffective assistance of counsel claim presents mixed questions of law and fact. See Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). Thus, we defer to the district court‘s findings of fact when they are supported by the record but review de novo its legal conclusions. See id.
¶ 21 To prove a claim of ineffective assistance of counsel during the plea process, “a defendant must show (1) counsel‘s representation fell below an objective standard of reasonableness and (2) a reasonable probability exists that but for counsel‘s errors, he or she ‘would not have pleaded guilty and would have insisted on going to trial.‘” People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)), aff‘d, 2012 CO 73, 291 P.3d 16. “Because a defendant must show both deficient performance and prejudice, a court may resolve the claim solely on the basis that the defendant has failed in either regard.” People v. Karpierz, 165 P.3d 753, 759 (Colo. App. 2006).
¶ 22 Plea counsel‘s performance falls below an objective standard of reasonableness — in other words, is deficient — when he or she fails to present the defendant with the opportunity to make a reasonably informed decision about whether to accept a plea offer. See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009). Thus, a defendant is entitled to assume that his or her counsel will provide “sufficiently accurate advice” to enable him or her “to fully understand and assess the serious legal proceedings in which he [or she] is involved.” People v. Pozo, 746 P.2d 523, 526 (Colo. 1987).
¶ 23 Defense counsel in a criminal case has a duty to investigate relevant immigration law when he or she is aware that the client is a noncitizen. See id. at 529. When the immigration law is not succinct and straightforward, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Counsel must advise a defendant of the risk of deportation when that consequence is clear. See id. at 368 (concluding that the terms of the relevant immigration statute were “succinct, clear, and explicit” where defense counsel “could have easily determined that [the defendant‘s]
D. Federal Immigration Consequences
¶ 24 A noncitizen who is convicted of violating any law relating to a controlled substance (other than a single offense involving possession of thirty grams or less of marijuana) is deportable. See
¶ 25 Such a conviction also (1) stops the accrual of the seven-year period of continued residence needed for a lawful permanent resident to seek cancellation of removal, see
E. Crim. P. 32(d) Hearing
¶ 26 During the
- as evidenced by his notes, he learned that Figueroa-Lemus was a permanent resident during the initial intake;
- he explained to Figueroa-Lemus that if he pleaded guilty, he would eventually be picked up and deported and it was not a question of if, but when;
- although not reflected in a written note, he talked about the deportation issue in every conversation he had with Figueroa-Lemus;
- he understood that a guilty plea to the drug charge would make Figueroa-Lemus mandatorily deportable and mandatorily inadmissible, and that the defense of cancellation of removal would not apply;
he did not use “terms of art” but tended to use “a little more colorful language” by telling Figueroa-Lemus that if he pleaded guilty, “you‘re gone,” he would lose his residency and eventually be deported, there was no way around it, and there was “no way to come and ask for forgiveness or a waiver or a pardon“; - he did not talk to Figueroa-Lemus about cancellation of removal because, by telling him he would be deported, it encompassed saying that there was no opportunity for cancellation of removal;
- they initialed next to the paragraph about immigration consequences on the
Crim. P. 11 advisement to “document that the issue was again brought up and discussed in the conference room right outside of court,” but the paragraph did not encapsulate all they discussed; - he advised Figueroa-Lemus numerous times that the deferred judgment “would confer no benefit to him whatsoever, other than avoiding the state felony conviction,” and “for purposes of immigration, it was the
same as if he was pleading guilty straight up” and the admission would be “permanent and binding“; and - he pleaded with Figueroa-Lemus numerous times to talk to an immigration lawyer and, when he failed to do so, Ferszt referred Figueroa-Lemus to Escamilla.
¶ 27 Escamilla then testified that, as evidenced by his notes, he advised Figueroa-Lemus that if he pleaded guilty he would be deported. He also explained that the only drug conviction he could have on his record was possession of thirty grams or less of marijuana and told him that immigration officials would treat the deferred judgment as a plea of guilty, which would stay on his record forever for immigration purposes.
¶ 28 In contrast, Figueroa-Lemus testified that
- Ferszt never explained anything about the immigration consequences of the plea but told him that, if he successfully completed the deferred judgment, he “would have no problem with [i]mmigration and could move on to seek[] citizenship” — Ferszt never told him that he would be deported;
Escamilla advised him that “probably these cases could be deportable,” but they could possibly delay the proceedings so he could become a citizen before he pleaded guilty; - Escamilla advised him that if he complied with the probation on the deferred judgment, it would be erased from his record; and
- he was not telling the truth when he told the court during the providency hearing that he understood the
Crim. P. 11 advisement.
¶ 29 The district court denied the
F. Application
¶ 30 Here, the immigration consequences of pleading guilty to a felony drug offense involving a schedule II controlled substance (including mandatory deportation, ineligibility for the cancellation of removal defense, and permanent inadmissibility) were clear because those consequences could be discerned from the face of the federal statutes. See, e.g., People v. Campos-Corona, 2013 COA 23, ¶ 13, 343 P.3d 983, 986 (concluding that the mandatory removal consequence in the statute for a controlled substance offense was “succinct and straightforward“). Therefore, counsel was required to advise Figueroa-Lemus of those consequences. See Padilla, 559 U.S. at 369.
¶ 31 We conclude that counsel adequately advised Figueroa-Lemus. Because it is supported by the record, we defer to the district court‘s finding that both Ferszt and Escamilla told Figueroa-Lemus on multiple occasions that a guilty plea to a drug felony would result in deportation. Escamilla testified that he told Figueroa-Lemus that he would be deported if he pleaded guilty. That
¶ 32 And, Ferszt‘s testimony that he told Figueroa-Lemus that if he pleaded guilty, “you‘re gone,” he would lose his residency and eventually be deported, there was no way around it, and there was “no way to come and ask for forgiveness or a waiver or a pardon” sufficiently communicated that Figueroa-Lemus would be deported if he pleaded guilty. That language, along with Ferszt‘s advisement that the admission would be permanent and binding for immigration purposes, was also sufficient to convey to Figueroa-Lemus that he was not eligible for the defense of cancellation of removal and would be inadmissible — that is, would not be able to return to the United States.
¶ 33 Although Figueroa-Lemus testified that counsel did not tell him that he would be deported (but only that he could be deported), it was for the district court (as the fact finder) to determine the credibility of the testimony, weigh the evidence, and resolve conflicts, inconsistencies, and disputes in the evidence. See People v. Bertrand, 2014 COA 142, ¶ 8, 342 P.3d 582, 584. In the end, the court found that Figueroa-Lemus‘s testimony was not credible and
¶ 34 Finally, we reject Figueroa-Lemus‘s argument that counsel should have advised him that he would be held in custody during the removal proceeding (mandatory detention). Figueroa-Lemus cites to no authority, and we have found none, that would require counsel to give this advice. Counsel admitted during the
¶ 35 Under these circumstances, counsel‘s performance was not deficient. Because counsel‘s performance was not deficient, we need not consider whether Figueroa-Lemus was prejudiced. See Karpierz, 165 P.3d at 759. We therefore conclude that the district court did not abuse its discretion when it denied the
IV. Conclusion
¶ 36 The order is affirmed.
JUDGE RICHMAN concurs.
JUDGE FURMAN dissents.
¶ 37 Because I believe that we do not have jurisdiction to review the order denying the
¶ 38 Every court has the authority to decide the question of its own jurisdiction. In re Water Rights of Elk Dance Colo., LLC, 139 P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial appellate jurisdiction over final judgments entered by a district court.
¶ 39 But, a deferred judgment is neither a sentence nor a final judgment. See People v. Carbajal, 198 P.3d 102, 105-06 (Colo. 2008). Rather, a deferred judgment is “a continuance with probation-like supervision conditions.” Id. at 106. Accordingly, a
¶ 40 Figueroa-Lemus sought to withdraw his guilty plea to the possession count while the deferred judgment was still in place. Although the prosecution filed a motion to revoke the deferred judgment, the district court has not yet ruled on the motion. Because the revocation hearing is still pending, Figueroa-Lemus will not be sentenced on the possession count unless the district court determines that his deferred judgment should be revoked. If the court does make this determination, the court must enter a judgment of conviction and sentence him before the judgment becomes final. See People v. Wiedemer, 899 P.2d 283, 284 (Colo. App. 1994).
¶ 41 Under these circumstances, there is no final judgment on Figueroa-Lemus’ possession count, and thus, I conclude that we lack jurisdiction to consider this appeal. See
¶ 42 While I agree with the majority that a defendant may challenge a deferred judgment under
¶ 43 I also disagree with the majority‘s conclusion that “[i]t is unlikely that the supreme court would provide a remedy in the district court without allowing appellate review of the district court‘s decision.” Supra ¶ 11. There are certainly circumstances where an appellate court has jurisdiction to review the denial of a
¶ 44 Finally, I acknowledge that immigration consequences of a deferred judgment plea may remain after it has been successfully completed and the charges dismissed. See People v. Corrales-Castro, 2017 CO 60, ¶ 13. But, the supreme court has made clear that consideration of such collateral consequences is not within the purview of this court. Id. Accordingly, I respectfully dissent and conclude that we lack jurisdiction to consider this appeal.