The People of the State of Colorado, Plaintiff-Appellee, v. Benjamin Franklin Mountjoy, Jr., Defendant-Appellant.
Court of Appeals No. 13CA1215
Colorado Court of Appeals
June 2, 2016
2016 COA 86
JUDGE J. JONES, JUDGE WEBB, and JUDGE NIETO
Douglas K. Wilson, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE J. JONES
Webb and Nieto*, JJ., concur
*Sitting by assignment of the Chief Justice under provisions of
I. Background
In 2004, the People charged defendant with several crimes, including second degree kidnapping (a class 2 felony), second degree kidnapping (a class 4 felony), and second degree assault. The People later added a count of sexual assault (a class 4 felony).
Defendant and the People entered into a plea agreement. Defendant agreed to plead guilty to the class 4 felony second degree kidnapping charge and to the sexual assault charge. In exchange, the People agreed to dismiss the other charges and to a sentencing cap of eight years in the custody of the Department of Corrections (DOC). The court accepted defendant‘s plea and sentenced him to eight years in the custody of the DOC on the kidnapping charge and a concurrent term of four years to life on the sexual assault
Defendant eventually filed a
The district court held an evidentiary hearing on defendant‘s motion. At that hearing, defendant‘s trial counsel testified that he didn‘t recall telling defendant that he would have to register as a sex offender. Defendant testified that he didn‘t know he would have to register and that he wouldn‘t have pleaded guilty if he had known. The district court denied the motion, concluding that sex offender registration is a collateral consequence of a guilty plea and that counsel isn‘t required to advise a defendant of collateral consequences.
II. Discussion
Defendant contends that the district court erred in denying his motion because his trial counsel‘s failure to advise him of the sex offender registration requirement constituted ineffective assistance of counsel. We disagree.
A claim of ineffective assistance of counsel presents a mixed question of law and fact. People v. Arko, 159 P.3d 606, 609 (Colo. App. 2006), rev‘d on other grounds, 183 P.3d 555 (Colo. 2008). We review the district court‘s factual findings for clear error and its legal conclusions de novo. People v. Venzor, 121 P.3d 260, 262 (Colo. App. 2005).
B. Analysis
To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). To establish deficient performance, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. To establish prejudice in the context of a guilty plea, the defendant must show that there‘s a reasonable probability that, but for counsel‘s errors, he wouldn‘t have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. Pozo, 746 P.2d 523, 526-27 (Colo. 1987). If a court determines that the defendant has failed to prove either prong, it may deny the claim without considering the other. Strickland, 466 U.S. at 697.
The Colorado Supreme Court has held that because sex offender registration is a collateral consequence of a guilty plea, a trial court‘s failure to advise a defendant of that requirement doesn‘t
Relying on Ruiz, divisions of this court have held that counsel‘s failure to advise a defendant of the sex offender registration requirement doesn‘t constitute deficient performance. People v. Montiel, 2012 COA 185, ¶ 16; People v. Moore, 2012 COA 120, ¶ 10. These decisions follow the general rule that “attorneys do not have a duty to advise their clients of all possible collateral consequences that may flow from a guilty plea.” People v. Garcia, 815 P.2d 937, 940 (Colo. 1991); see also Moore, ¶ 10.
Defendant argues, however, that these cases have been effectively overruled by Padilla v. Kentucky, 559 U.S. 356 (2010). In Padilla, the Supreme Court held that the Sixth Amendment requires counsel to advise a noncitizen defendant that a guilty plea carries a risk of deportation. Id. at 374. The Court declined to apply the direct/collateral distinction to deportation, noting that deportation is “uniquely difficult to classify as either a direct or a collateral consequence.” Id. at 366.
But Padilla doesn‘t apply here for two reasons. First, the Supreme Court has since held that Padilla announced a new rule of criminal procedure that doesn‘t apply retroactively to cases on collateral review. Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103, 1113 (2013). Because
Second, even if Padilla were applicable, it wouldn‘t change the result. As we‘ve noted, divisions of this court have consistently declined to extend Padilla‘s holding to the sex offender registration requirement. Montiel, ¶ 16; Moore, ¶ 10. They‘ve reasoned that deportation is “uniquely” severe and that sex offender registration, while burdensome, doesn‘t rise to the same level. Moore, ¶¶ 13-16. We agree with those decisions and conclude that Padilla doesn‘t require counsel to advise a defendant of the sex offender registration requirement.
Because counsel wasn‘t required to advise defendant that he would have to register as a sex offender, counsel‘s performance wasn‘t deficient. Therefore, defendant‘s ineffective assistance of counsel claim fails.
The order is affirmed.
JUDGE WEBB and JUDGE NIETO concur.