STATE OF ARIZONA, Petitioner, v. HECTOR SEBASTION NUNEZ-DIAZ, Respondent.
No. CR-18-0514-PR
Supreme Court of the State of Arizona
July 16, 2019
Appeal from the Superior Court in Maricopa County, The Honorable Phemonia L. Miller, Judge Pro Tempore, No. CR2013-430489-001, AFFIRMED. Memorandum Decision of the Court of Appeals Division One, 1 CA-CR 16-0793 PRPC, Filed Sept. 18, 2018, AFFIRMED.
COUNSEL:
Ray A. Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for Hector Sebastian Nunez-Diaz
William G. Montgomery, Maricopa County Attorney, Karen Kemper, Deputy County Attorney (argued), Phoenix, Attornеys for State of Arizona
Mark Brnovich, Arizona Attorney General, Drew C. Ensign (argued), Deputy Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General
John Walters, Office of the Pima County Public Defender, Tucson; Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant Federal Public Defender, Phoenix; Grant D. Wille, Ralls & Reidy, P.C., Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice, Pima County Public Defender, and the Federal Public Defender for the District of Arizona
CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES TIMMER, BOLICK and PELANDER (RETIRED) joined. JUSTICE BOLICK, joined by JUSTICE PELANDER, filed a concurring opinion. JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE BRUTINEL and JUSTICE GOULD, filed an opinion concurring in the result.
¶1 In this case involving post-conviction relief, the State argues that the lower courts erred in concluding that Hector Sebastion Nunez-Diaz, an undocumented immigrant, received ineffective assistance of counsel when he entered a guilty plea resulting in his mandatory deportation. The State contends that because Nunez-Diaz was deportable without regard to his plea, he cannot establish a claim of ineffective assistance or, alternatively, that any constitutional violation was harmless. Because Nunez-Diaz suffered severe and mandatory consequences (including a permanent bar from reentry) as a result of the plea he entered due to counsel‘s deficient advice, we agree with the trial court and the court of appeals that he received ineffective assistance of counsel justifying post-conviction relief.
I.
¶2 We defer to a trial court‘s findings of fact unless clearly erroneous. State v. Hulsey, 243 Ariz. 367, 377 ¶ 17 (2018). Nunez-Diaz was stopped for speeding and found in possession of small amounts of methamphetamine and cocaine. He was subsequently charged with possession or use of a dangerous drug and possession or use of a narcotic drug, each a class 4 felony. See
¶3 Upon his arrest, Nunez-Diаz‘s family began searching for an attorney. Their chief concern was avoiding Nunez-Diaz‘s deportation. They met with an attorney from a Phoenix law firm experienced in criminal defense and immigration law, who informed them that although Nunez-Diaz had a difficult case, it was possible to avoid deportation. Reassured by this meeting, Nunez-Diaz‘s family chose to retain that firm, and the firm assigned a criminal defense attorney to Nunez-Diaz‘s case.
¶4 The State offered a plеa deal that would reduce the charges Nunez-Diaz was facing to a single count of possession of drug paraphernalia, a class 6 undesignated felony. See
¶5 Nunez-Diaz was transferred to the custody of United States Immigration and Customs Enforcement (“ICE“). He was informed that, because of his plea, he could not bond out of custody and would be deported. This alarmed both Nunez-Diaz and his family, who returned to the law firm. There, an immigration attorney told the family that because of the plea, nothing could be done to keep Nunez-Diaz in this country. The family found new counsel who was able to negotiate for Nunez-Diaz‘s voluntary removal to Mexico, where Nunez-Diaz has remained.
¶7 After holding an evidentiary hearing, the trial court ruled that Nunez-Diaz had established ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The court found overwhelming evidence that “counsel‘s actions fell below an objective standard [of reasonableness].” Counsel had “misrepresented the immigration consequences to defendant,” and failed to inform Nunez-Diaz that his removal would be guaranteed if he accepted the plea. As a “direct result of [counsel‘s] failure,” Nunez-Diaz was prejudiced by forfeiting his chance at trial and thus his only chance at avoiding removal. Accordingly, the trial court ordered that Nunez-Diaz‘s guilty plea be set aside.
¶8 The court of appeals granted the State‘s petition for review, and a divided panel denied relief. See State v. Nunez-Diaz, 1 CA-CR 16-0793 PRPC, 2018 WL 4500758, at *1-*2 ¶¶ 1, 13 (Ariz. App. Sept. 18, 2018) (mem. decision). The court concluded that Nunez-Diaz had “established he suffered from both deficient performance and prejudice when he entered” his plea. Id. at *2 ¶ 10. The burden then shifted to the State to demonstrate that the constitutional deficiеncy was harmless, which it failed to do. Id. ¶ 11. The dissenting judge argued that, because Nunez-Diaz was deportable regardless of his plea, there was no prejudice and thus no constitutional claim. Id. at *3 ¶ 14 (Morse, J., dissenting).
¶9 We granted review to consider whether deportable immigrants can show prejudice if their lawyers’ deficient performances lead them to plead guilty and suffer attendant immigration consequences – a recurring issue of statewide importance.
II.
¶10 The
A.
¶11 To satisfy Strickland‘s first prong, a defendant must demonstrate that counsel‘s assistance was constitutionally deficient. Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Generally, plea counsel “need do no more than advise a noncitizеn client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 369. When the consequences of a plea are clear, however, “the duty to give correct advice is equally clear” and counsel must inform their client of those consequences. Id.
¶12 This case is one in which counsel was obliged to give correct advice about the clear consequences of a plea. Nunez-Diaz‘s plea resultеd in a conviction that falls under
B.
¶13 Strickland‘s second prong requires that a defendant show counsel‘s errors had a prejudicial effect. See Padilla, 559 U.S. at 369. When a claim of ineffective assistance of counsel stems from plea proceedings, a defendant must show a reasonable probability that, “but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To do so, it must “have been rational under the circumstances” for a defendant to refuse a plea and go to trial. Padilla, 559 U.S. at 372.
¶14 It is not irrational for a defendant to go to trial when trial represents the only, albeit slim, chance that a defendant can avoid severe and certain immigration consequences. Lee v. United States, 137 S. Ct. 1958, 1968 (2017). In Lee, defendant Lee received inaccurate advice from plea counsel that resulted in him signing a plea that guaranteed deportation. Id. at 1963. The “determinative issue” in Lee‘s decision-making had been the avoidance of deportation. Id. Thus, Lee initiated post-conviction relief proceedings, claiming ineffective assistance of counsel. Id.
¶15 The Supreme Court ultimately sided with Lee. Id. at 1969. Although a defendant must ordinarily “show that he would have been better off going to trial,” this is only true when a defendant‘s decision turns on his prospects at trial. Id. at 1965. Lee‘s decision, though, turned on what was most likely to keep him in the country – he would not have entered his plea had he been accurately advised of the immigration consequences. Id. at 1965, 1967. Although Lee was almost certain to lose at trial, “that ‘almost’ could make all the difference.” Id. at 1969. It was not irrational for Lee to try for a “Hail Mary” win in order to avoid the “particularly severe penalty” of deportation. Id. at 1967-68.
¶16 Lee controls our resolution of this case. The trial court found that had Nunez-Diaz been accurately advised, he would not have accepted his plea, opting instead to continue plea negotiations or proceed to trial. A plea here resulted automatically in the outcome that Nunez-Diaz most sought to avoid – immediate and permanent removal. If Nunez-Diaz had gone to trial and been convicted, the presumptive sentence on the more serious charge – possession or use of a dangerous drug – would have been 2.5 years’ imprisonment,
¶17 The State essentially argues that Lee only applies to those who are lawfully present in this country. This misreads Lee – it turned not on Lee‘s immigration status but on whether he was “prejudiced by the ‘denial of the entire judicial proceeding.‘” 137 S. Ct. at 1965 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). Moreover, the cases the State relies on to support its argument were decided before Lee and their reasoning does not survive. Compare United States v. Batamula, 823 F.3d 237, 243 (5th Cir. 2016) (en banc) (stating that, because defendant was already removable, he had not offered a rational reason
¶18 Beсause Nunez-Diaz has established a constitutional violation, he is entitled to post-conviction relief unless the State meets its burden of proving beyond a reasonable doubt that the violation was harmless.
¶19 We disagree. “There is a vast difference for an unauthorized alien between being generally subject to removal and being convicted of a crime that subjects an unauthorized alien to automatic, mandatory, and irreversible removal.” Diaz v. State, 896 N.W.2d 723, 733 (Iowa 2017). As the court of appeals noted, the record does not establish that Nunez-Diaz would necessarily have been removed had he gone to trial and been acquitted. There are many reasons that a deportable immigrant may not be removed. Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 8-10 (2016). Deportable immigrants are potentially eligible for cancellation of removal or adjustment of status under
¶20 Moreover, due to his plea, Nunez-Diaz was permanently barred from ever returning to this country. Ordinarily, an unlawfully present person who is removed may seek readmission after a period of three or ten years.
III.
¶21 Although Nunez-Diaz may have had little chance of winning at trial, he was entitled to effective assistance of counsel in deciding whether to take thаt chance or to accept a plea offer. He gave up his right to trial based on his counsel‘s deficient advice, which assured the outcome he most feared. The trial court did not abuse its discretion in granting post-conviction relief, and we affirm the ruling of the trial court and the decision of the court of appeals.
JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED), Concurring
BOLICK, J., joined by PELANDER, J. (RETIRED), concurring.
¶22 I concur fully with the Court‘s opinion. I write separately to question Lee v. United States, the United States Supreme Court precеdent that dictates the outcome here. 137 S. Ct. 1958 (2017). Lee creates a highly unbalanced two-tiered system for criminal defendants seeking relief from convictions for ineffective assistance of counsel: one for aliens subject to deportation and one for most other defendants.
¶23 The baseline decision for ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984). There the Court set forth two requirements for setting aside a conviction: (1) deficient attorney рerformance of constitutional magnitude and (2) resulting prejudice to the defendant. Id. at 687. The second requirement, which is solely at issue here, “requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Specifically, “the defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” id. at 694, which requires considering “the totality of the evidence” presented. Id. at 695.
¶24 For the ordinary defendant seeking to overturn a conviction for ineffective assistance of counsel, this showing is a “high bar.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). Certainly, if the guilty verdict would have been essentially a fait accompli even absent deficient performance by counsel, the conviction will be sustained. See Strickland, 466 U.S. at 694.
¶25 Not
¶26 Nonetheless, the Lee Court held that a defendant has thе right to have a guilty plea set aside even where the defendant has not shown that the ultimate outcome from proceeding to trial would be different. 137 S. Ct. at 1966–69. In other words, Lee‘s holding extends to situations where no viable defense exists to the charges, and thus, deportation and other immigration consequences, as well as jail time, are almost certain results of going to trial. Id. For the vast majority of alien defendants like the one in Lee, there is no difference in outcome between proceeding to trial or taking the plea. Even sо, under Lee, a defendant facing immigration consequences gets to attempt a “Hail Mary” pass in a new trial, id. at 1967, while defendants in other contexts who likewise faced almost certain conviction at trial don‘t even get to the line of scrimmage.
¶27 The Lee majority cited Hill v. Lockhart, 474 U.S. 52 (1985), for the proposition that when a defendant receives ineffective assistance of counsel in connection with a guilty plea, a different standard for evaluating prejudice applies. See Lee, 137 S. Ct. at 1965. But Hill expressly embraced Strickland‘s two-part requirement in that context, 474 U.S. at 58–59, and subsequent cases that applied Hill required the defendant to show that a different outcome was likely absent the ineffective assistance of counsel, see Lee, 137 S. Ct. at 1973 (Thomas, J., dissenting) (discussing cases). As the dissenting opinion by Justices Thomas and Alito demonstrates, Lee grossly diverges from Strickland, and thus was wrongly decided. Id. at 1969–75. Because Lee creates unequal treatment with regard to ineffective assistance of counsel claims and places unnecessary burdens on Arizona courts, I hope the Supreme Court will reconsider that decision.
JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE BRUTINEL and JUSTICE GOULD, Concurring in the Result
LOPEZ, J., joined by BRUTINEL, V.C.J., and GOULD, J., cоncurring in the result.
¶28 I concur in the Court‘s resolution because Lee v. United States, 137 S. Ct. 1958 (2017), controls the outcome in this case. I write separately to clarify my view concerning what constitutes prejudice under Lee and Strickland v. Washington, 466 U.S. 668 (1984), when a defendant, previously subject to deportation, suffers adverse immigration consequences as a result of a plea he entered due to counsel‘s deficient advice.
¶29 Here, as the majority notes, Nunez-Diaz‘s plea resulted in a conviction that, under
¶30 The majority concludes that Nunez-Diaz has established prejudice because his plea resulted in his automatic deportation and loss of potential discretionary relief from removal and permanently prevents his future lawful admission into the United States. Supra ¶¶ 16, 19–20. Although permanent exclusion of admission into the country under
¶31 The majority rejects the State‘s suggestion “that Lee only applies to those who are lawfully present in this country” because Lee “turned not on . . . immigration status but on whether [Lee] was ‘prejudiced by the denial of the entire judicial proceeding.‘” Supra ¶ 17 (quoting Lee, 137 S. Ct. at 1965). The majority may be correct, but it misses an important point. Lee, like the defendant in Padilla, was lawfully in the United States, entered a guilty plea pursuant to counsel‘s deficient advice concerning adverse immigration consequences, and became subject to deportation solely as a result of his plea conviction. Lee, 137 S. Ct. at 1962; Padilla v. Kentucky, 559 U.S. 356, 359–60 (2010). In other words, Lee and Padilla established Strickland prejudice because their decision to proceed to trial was rational because they never would have been subject to deportation but for their convictions.
¶32 In contrast, Nunez-Diaz cannot prove Strickland prejudice here based on his subsequent deportation because he was already subject to removal (and an ICE detainer) as a deportable alien under
¶33 Likewise, Nunez-Diaz fails to meet his burden to show prejudice based on the loss of discretionary relief under
¶34 However, this approach does not categorically preclude Lee‘s application to those unlawfully present in the United States (as the State urges) but rather recognizes that Strickland prejudice requires a showing that counsel‘s deficient advice caused a non-speculative, material harm. Although Nunez-Diaz‘s deportation following his plea conviction and his loss of possible discretionary relief fail to establish prejudice under Strickland, I concur in the majority‘s conclusion that his permanеnt bar to admission into the United States constitutes prejudice. Supra ¶ 20. This adverse immigration consequence, like the deportations in Padilla and Lee, is a direct material harm that is exclusively the result of his plea conviction. I cannot conclude that, under Lee, it was irrational for Nunez-Diaz to try for a “Hail Mary” win at trial in order to avoid the permanent bar to admission to the United States.
¶35 Finally, although Lee controls the result in this case, I agree with Justice Bolick‘s statements in his concurring opinion еxpressing concern about Lee‘s “unequal treatment with regard to ineffective assistance of counsel” and its “unnecessary burdens on Arizona courts.” Supra ¶ 27.