People v. Pozo
712 P.2d 1044
Colo. Ct. App.
1986
Check Treatment

*1 not plaintiffs mined did meet the percent requirement legal pro-

test. city

The court found that council appropriate

chose an method to calculate percentage ownership included protest by measuring from the

100 feet for

boundary parcel. the interior 3.12 acre

The council followed the method of dis-

regarding intervening alleys streets and staff, city

recommended which was perpendicular property lines to the draw

line, beyond and to extend that line requires

right ways. The ordinance alleys

intervening public streets and not be computation. The

used council’s computation was neither arbi-

method of

trary capricious, nor and was not in error. County

Board Commissioners v. Sim- mons, 177 Colo. P.2d 85 plaintiffs’

The other contentions of error By disposition

are without merit. our appeal, the issues raised in the cross-

appeal are moot. judgment

The is affirmed. JJ., BERMAN, concur.

PIERCE Colorado, of the State of PEOPLE

Plaintiff-Appellee, POZO,

Jose Borcella

Defendant-Appellant.

No. 83CA1004. Appeals,

Colorado Court

Div. III.

June 1985. July

Rehearing Denied 1985. (People)

Certiorari Granted Jan. 1986. (Amicus Curiae)

Certiorari Denied

Jan. 1986.

1045 was denied effective assistance of counsel attorney’s his failure to advise him as to immigration consequences of his pleas guilty of to degree second sexual assault escape. that, and We conclude under the case, circumstances of this defendant did receive counsel, ineffective assistance of accordingly, and reverse the trial court’s order and remand with directions.

Defendant arrived in the United States in April from Cuba In 1980. March charged he was with one count of first degree assault, sexual and in June he charged was escape. Thereafter, with appointed Spanish speaking a attor- ney represent defendant in both cases because defendant no spoke English and public defender had withdrawn from representation due to a conflict of interest.

In October defendant entered a plea guilty charge to the of second de- gree escape. sexual assault and He re- a Depart- ceived sentence to the Colorado ment Corrections two and one-half assault, years for the sexual and a sen- years escape, tence two for the to be consecutively. served May In defendant filed a Crim. P. 35(c) requesting motion withdrawal of his guilty pleas premised a claim upon of inef- fective assistance of counsel. The basis attorney for his motion was that his had him the immigration failed to advise as to pleas consequences guilty of his and had seek a from failed to recommendation Attorney trial court to the United States Woodard, Atty. Gen., Duane B. Charles deported. that defendant not be General Howe, Gen., Deputy Atty. H. Chief Richard motion, hearing At on the Forman, Gen., Jones, Cynthia Sol. D. Asst. court found that defendant’s counsel had Denver, Gen., Atty. plaintiff-appellee. for concerning any not defendant de- advised Denver, Hazen, defendant-ap- Jane S. resulting portation consequences from a pellant. plea guilty, that and defendant was not consequences P.C., cognizant of those based on Allott, Law Ann Ann Offices of Nevertheless, prior experiences. Allott, Littleton, his Rogers Burgess, Lorna motion, curiae, trial court denied defendant’s find- Immigration for amicus American ing received had effective Lawyers Assn. of counsel.

assistance METZGER, Judge. argues attorney his Defendant appeal reasonably render effective assist- presented The sole issue on this failed to Pozo, defendant, range competence whether the de- Jose Borcella ance within con- cases, by Generally, sexual crimes have been required manded in criminal See, Blalock, turpitude. P.2d to involve moral People Colo. sidered v. Wing that, e.g., Ng Sui United since his attor- argues He applicable (7th Cir.1931). Therefore, the law defend- ney to research F.2d 755 failed case, status, the effec- ant, he was denied his alien because of agree. We assault, of counsel. degree tive assistance plea to second sexual *3 years, and one-half his sentence of two appellate decision Although no Colorado deported to Cuba. must be specifically, this issue ab- has addressed counsel has assistance of sence of effective points that 8 Defendant out U.S.C. People analogous In in cases. been found 1251(b)(2) provides exception an to such § White, (1973), P.2d 69 v. 182 Colo. 514 deportation: automatic ig- held that counsel’s Supreme our Court sentencing such alien for “If the court the crime of the elements norance make, time crime shall at the such guilty charged a defendant’s rendered passing imposing judgment or a first Additionally, we held Peo- in pleas invalid. sentence, thirty days there- or within Gonzales, Colo.App. P.2d ple v. 37 543 after, Attorney a recommendation to the (1975), omissions of coun- 72 that numerous de- ... such alien shall not be General sel, familiarity with the ” including a lack of ported, .... prosecution and deferred habitual offender judicial that a The result of this statute is statutes, effective as- denied a defendant against deportation recommendation counsel at trial. sistance of binding upon Immigration and Natural- the have the con state courts reached Other- Service, effectively precludes ization Edwards In urged by defendant. clusion resulting from con- deportation automatic State, 1981), (Fla.App. the v. 597 393 So.2d involving turpi- felony a moral viction of Appeals held that failure Florida Court However, attorney defendant’s tude. defendant of of counsel to advise a criminal from failed to seek such a recommendation immigration consequences consti possible case, since, sentencing court in this Common In tuted ineffective assistance. 35(c) Crim.P. he testified at defendant’s Wellington, Pa.Super. wealth 305 of it. hearing, he was unaware (1982), Pennsylvania Supe 451 A.2d 223 People People argue that under The to that failure of counsel rior Court held Court, 191 Colo. v. District 552 P.2d defendant of ascertain and advise an alien (1976), trial court need not advise 297 consequences constituted inef immigration “many legal conse accused of the an assistance of counsel. fective collateral, guilty of a quences, direct or plea, time entered his At the quarrel princi plea.” We have no with this “legal resident” of the United he was a point that the issue we are ple, but out to a United States and was married addressing strictly to the advice a is limited immigration But, purposes of citizen. attorney give must a defendant defense that consequences, defendant’s status was case, way imposes an and in no a criminal 1101(a)(3). of an alien. See 8 U.S.C. § requirement upon trial courts additional 1251(a)(4), was Accordingly, 8 U.S.C. § hearing. during providency a Crim.P. provides in That statute applicable to him. argue Additionally, People pertinent part: consequence, and deportation is a collateral shall, “Any alien in the United States ... compelled attorney should not be that an General, Attorney upon the order of as to the collateral con advise a defendant crime deported is convicted of a be who plea. the factual sequences of a Given turpitude involving moral committed here, labeling conclude that situation entry and either years five after within deportation consequence of as collat or confined confinement sentenced to significance. its not diminish eral does prison or corrective institu- therefore a ” Here, deportation would more, be tion, year .... for a or certainty, but for the fact that Cuba has found trial court as fact that defend- him, and, accept having ant did complet- consequence refused to not know that one pleading guilty ed Depart- involving his sentence at the Colorado a crime Corrections, moral presently turpitude deporta- ment would be likely he is indefi- But, concluding tion. nitely prison pend- deportation in a was incarcerated federal consequence, a collateral ing deportation. court ruled that defendant’s attorney’s failure to Also, we note that the more current apprise consequence him of this was not recognizes deportation law as a conse ineffective existing assistance under Colo- quence requiring the intervention of coun issue, rado this law. On narrow the trial prior sel’s advice to a defendant’s People did not err. See v. District See, State, plea. e.g., supra; Edwards v. Court, Colo. P.2d Wellington, supra. Commonwealth v. However, the resolution ineffec- Code, 1016.5; Penal See also Cal. Mass. § *4 question tive assistance of counsel does not Gen.Laws.Ann., 29B; Chapter Or. § underlying resolve the and fundamental is- 135.385; Conn.Legis.Serv. Rev.Stat. § sue in this case. The issue is whether the 82-177; Rev.Code Wash. 10-40-200. § § consequence unknown plea of the resulted examples growing These indicate a aware injustice in such manifest that fundamental immigration consequences ness that of requires fairness defendant be allowed to severe, unique, criminal convictions are and plea withdraw his of to sexual as- worthy recognition. of See also Michel v. issue, sault. For resolution of I this find (2nd Cir.1974); 507 F.2d United ABA, guidance in Standards Criminal for Briscoe, App. United 139 U.S. States Justice, (2d 1979) concerning ch. ed. (D.C.Cir.1970). F.2d D.C. guilty pleas. It uncontradicted that is defendant’s ABA, Standards Criminal Justice for attorney knew that an defendant was alien 2.1(b) 1979) (2d provides Standard ed. 14— applicable and failed to research the law that, motion, upon timely after sen- even immigration consequences which would re tencing pursuant plea guilty, to a of the plea guilty. sult from a of Given the dras allow a should to with- consequences tic nature of the to this de if plea proves draw his he the with- fendant, unfamiliarity and counsel’s total necessary drawal is to correct a manifest law, applicable with conclude we injustice. history of ex- the standard defendant received ineffective assistance of plains that the word “should” was substi- counsel. in “may” tuted for of the stan- revision denying"' Further, The order defendant’s motion as dard. standard revised post-conviction for relief is reversed. The specific grounds listed clarifies that determination, cause is remanded with directions to vacate grounds therein such guilty pleas judgments counsel, and of convic- as ineffective assistance of are thereon, tion entered to reinstate the examples intended as and not limitations of defendant, charges against per- and to filed injustice. what constitute manifest plead mit him to anew. Thus, binding finding have a since we fact that defendant did not know of the J., STERNBERG, concurs. consequence deportation, since it and undisputed that but for this lack knowl- J., TURSI, specially concurs. guilty, edge pled he not have would TURSI, Judge, specially concurring. must whether refusal to allow determine plea results in a I concur the result reached defendant to withdraw believe, I it does majority injustice. I the totali- manifest believe because under us, agree ty that the court’s refusal to va- of the facts before the withdrawal reversed, plea plea guilty plea to sexual assault is neces- cate the should be vacated, charges sary injustice. should and the rein- to correct manifest be in the trial proceedings stated for further

court.

Prospectively, apprised if a trial court is alienage, require

of a I would possible consequence deporta-

that the encompassed

tion be within Crim.P.

11(b)(4) Further, advisal. since this will no

longer impression be a matter of first

Colorado, trial counsel are now on notice

that the failure advise their alien clients probable

fully deportation as to the conse-

quences guilty pleas will be viewed as

ineffective assistance of counsel. *5 Colorado,

The PEOPLE of the State of

Plaintiff-Appellee,

Kelly JOHNSON, Arthur

Defendant-Appellant.

No. 84CA0297. Appeals,

Colorado Court of

Div. III.

June 1985.

Rehearing July Denied 1985. (People)

Certiorari Denied Jan. 1986.