PETITIONER'S INITIAL BRIEF ON JURISDICTIÖÑ. CASE NO. SC BY Lower Tribunal Case Nos. 2D ; CRC CFANO

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1 PETITIONER'S INITIAL BRIEF ON JURISDICTIÖÑ 20!3 Jäd 29 FM I: 25 CASE NO. SC BY Lower Tribunal Case Nos. 2D ; CRC CFANO SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA LUIS FELIPE AGUAS Petitioner, v. STATE OF FLORIDA, Respondent J. JERVIS WISE, ESQ. BJORN E. BRUNVAND, P.A. Florida Bar No Turner Street Clearwater, FL Phone: (727) Fax: (727) COUNSEL FOR PETITIONER

2 TABLEOFCONTENTS TABLE OF CITATIONS... 3 GROUNDS FOR INVOKING DISCRETIONARY JURISDICTION AND STATEMENT OF THE ISSUE... 5 STATEMENT OF THE CASE AND FACTS... 6 SUMMARY OF THE ARGUMENT... 9 Pggs ARGUMENT AND CITATIONS TO AUTHORITY I. THE QUESTION OF WHETHER THE RULING IN PADILLA V KENTUCKY, 130 S. CT (2010), SHOULD BE APPLIED RETROACTIVELY IN POST-CONVICTION PROCEEDINGS? CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE

3 TABLE OF CITATIONS Cases P_aage Aguas v. State, 100 So. 3d 1212, No. 2D (Fla. 2d DCA Nov. 9, 2012)... 5 Barrios-Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011)... 7 Beard v. Banks, 542 U.S. 406, 420 (2004) Chaidez v. United States, No , cert. granted Apr. 30, , 9, 11 Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005) Gideon v. Vainwright, 372 U.S. 335 (1963) Gray v. Netherland, 518 U.S. 152 (1996) Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011)... 7 Hernandez v. State, --- So. 3d ---, 2012 WL Nos. SC & SC (Fla. Nov. 21, 2012)... 8, 9-11 McMann v. Richardson, 397 U.S. 759, 771 (1970) O'Dell v. Netherland, 521 U.S. 151 (1997) Padilla v. Kentucky, --- U.S. ---, 130 S. Ct 1473 (Mar. 31, 2010)...5, 7-13 Saffle v. Parks, 494 U.S. 484 (1990) Villavende v. State, 504 So. 2d 455 (Fla. 2d DCA 1987) Witt v. State, 387 So. 2d 922 (Fla. 1980)

4 TABLE OF CITATIONS (Cont.) Statutes and Rules Page FLA CONST Art V 3 5 F FLA O O O

5 GROUNDS FOR INVOKING DISCRETIONARY JURISDICTION AND STATEMENT OF THE ISSUE This Court has jurisdiction to review the decision below, Aguas v. State, 100 So. 3d 1212, No. 2D (Fla. 2d DCA Nov. 9, 2012) (attached hereto as Appendix), because the opinion passes on a question certified to be of great public importance. See FLA. CONST. Art. V, 3(b)(4); Fla. R. App. P (a)(2)(A)(v). The court below, the Second District Court of Appeal, certified as a question of great public importance: SHOULD THE RULING IN PADILLA V. KENTUCKY, 130 S. CT (2010), BE APPLIED RETROACTIVELY IN POST- CONVICTIONPROCEEDINGS? See id. While this Court has decided the question since the issuance of the decision below, Petitioner asserts that the Padilla holding meets the criteria for retroactivity and, thereby, asks this Court to exercise its jurisdiction to reexamine the instant question and/or hold the case in abeyance pending the United States Supreme Court's treatment of the instant question in the pending case of Chaidez v. United States, No , cert. granted Apr. 30,

6 STATEMENT OF THE CASE AND FACTS The Petitioner, Luis Aguas, is a native of Colombia. He legally immigrated to the United States with his family in 1991, when he was approximately nine years old. Mr. Aguas resided in the United States ever since, up until he was deported based on the events underlying the instant case. On or about May 9, 2000, Mr. Aguas was charged by information in the Sixth Judicial Circuit of Florida, in and for Pinellas County, with sale and possession of MDMA and carrying a concealed weapon. Shortly thereafter, on June 30, 2000, Mr. Aguas entered a plea of no contest to those charges. Mr. Aguas then successfully completed his sentence in that case. As of early 2010, Immigration and Customs Enforcement instituted deportation proceedings against Mr. Aguas based on the 2000 no contest plea and conviction in this case. Mr. Aguas was, correspondingly, taken into immigration custody on or about April 28, On October 8, 2010, Mr. Aguas filed a motion to vacate and set aside his 2000 no contest plea and resulting sentence based on the fact that, at no time prior to or during the entry of the 2000 no contest plea, did Mr. Aguas' counsel advise him that the no contest plea could subject him to deportation, nor that the charges to which he was entering the no contest plea could qualify as crimes of moral turpitude and controlled substances offenses and would, thereby, result in 6

7 mandatory deportation. Likewise, Mr. Aguas' attorney did not advise him that at least one of the three charges to which he was entering the no contest plea could qualify as an aggravated felony under federal immigration law and which would, thereby, result in mandatory, expedited deportation. See 8 U.S.C. 1101(a)(43)(B) (classifying offenses that would constitute "illicit trafficking in a substance", under the definitions recognized in the U.S. Code, as controlled aggravated felonies). As legal authority for the motion, Mr. Aguas relied on the then-recently decided United States Supreme Court opinion, Padilla v. Kentucky, --- U.S. --, 130 S. Ct 1473 (Mar. 31, 2010). On May 19, 2011, the circuit court summarily denied Mr. Aguas' motion, holding that Mr. Aguas was not entitled to relief based on the Third District Court of Appeal's holding that Padilla does not apply retroactively. Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011). Mr. Aguas, then made a timely motion for rehearing, which the circuit court denied on January 25, Mr. Aguas next took a direct appeal to the Second District Court of Appeal. On November 9, 2012, the Second District affirmed the circuit court's denial of the motion to vacate. See attached Appendix. In so holding, the court relied on its opinion in Barrios-Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011), which held that Padilla did not apply retroactively. Id. In its opinion, however, the Second District also certified to this Court as a question of great public importance, the 7

8 seminal question in Mr. Aguas' appeal: "Should the ruling in Padilla v. Kentucky, 130 S. Ct (2010), be applied retroactively in post-conviction proceedings." Id. Shortly after the Second District issued its opinion, this Court decided Hernandez v. State, --- So. 3d ---, 2012 WL , Nos. SC & SC (Fla. Nov. 21, 2012) and similarly held that Padilla does not apply retroactively. Mr. Aguas then filed his notice to invoke the discretionary jurisdiction of this Court on December 7, This jurisdictional brief follows. 8

9 SUMMARY OF THE ARGUMENT Mr. Aguas recognizes and certainly respects this Court's recent decision in Hernandez v. State, --- So. 3d ----, 2012 WL , Nos. SC & SC (Fla. Nov. 21, 2012), which held that Padilla does not apply retroactively. Mr. Aguas respectfully submits, however, that Padilla is a case of "sufficient magnitude to necessitate retroactive application." Witt v. State, 387 So. 2d 922, 929. Moreover, the question of Padilla's retroactivity remains pending in the United States Supreme Court. Chaidez v. United States, No , cert. granted Apr. 30, For those reasons, Mr. Aguas requests this Court to exercise jurisdiction in the instant case and reexamine the Padilla retroactivity question. 9

10 ARGUMENTS AND CITATIONS TO AUTHORITY II. THE QUESTION OF WHETHER THE RULING IN PADILLA V. KENTUCKY, 130 S. CT (2010), SHOULD BE APPLIED RETROACTIVELY IN POST- CONVICTION PROCEEDINGS? Given that Padilla completely revamped the state of the law regarding the duty of counsel to advise of immigration consequences,' it is a case that should receive retroactive application, particularly in a state such as Florida in which an ever increasing number of individuals find themselves facing potentially adverse immigration consequences as a result of very old and stale criminal convictions. Given the reach of Padilla, coupled with the high stakes at issue for defendants facing life-long deportation in Padilla cases, Petitioner Aguas submits that the opinion "constitutes a development of fundamental significance" that should, correspondingly, receive retroactive effect. See Witt v. State, 387 So. 2d 922, 931 (Fla. 1980). As set forth above, Mr. Aguas recognizes that, shortly after the Second District issued its opinion below, this Court decided Hernandez v. State, --- So. 3d ----, 2012 WL , Nos. SC & SC (Fla. Nov. 21, 2012), and Prior to Padilla, Florida law had long classified deportation consequences as collateral, rather than direct consequences of a plea. Villavende v. State, 504 So. 2d 455, 456 (Fla. 2d DCA 1987). As a result, Florida courts held that a trial counsel's failure to advise of such collateral consequences could not serve as the basis for a finding of ineffective assistance of counsel. Id. 10

11 effectively answered the question that had been certified in this case - whether Padilla should apply retroactively. Though the Court answered that question in the negative, Mr. Aguas asks this Court to reexamine the question in the instant case and/or to hold the case in abeyance pending the United States Supreme Court's decision in Chaidez v. United States, No , cert. granted Apr. 30, 2012, in which the instant question is pending. See l-820.htm. In deciding Hernandez, this Court found that the Padilla holding did not pass the test for retroactivity set forth in Witt v. State, 387 So.2d 922 (Fla.1980). Pursuant to Witt, "a new rule of law will not apply retroactively unless the new rule '(a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.' " Hernandez, 2012 WL at *4 quoting Chandler v. Crosby, 916 So. 2d 728, 729 (Fla. 2005) (quoting Witt, 387 So.2d at 931). In Hernandez, this Court found that Padilla satisfied the first two requirements of the Witt retroactivity test, but fell short of satisfying the third. Id. As the United States Supreme Court recognized in Padilla, "It is our responsibility under the Constitution to ensure that no criminal defendant-whether a citizen or not-is left to the 'mercies of incompetent counsel.'" Padilla, 130 S.Ct at 1486 quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). Furthermore, 11

12 the Supreme Court seemingly foresaw Padilla having retroactive effect when it wrote in the opinion of the potential impact Padilla will have on the courts: We have given serious consideration to the concerns that the Solicitor General, respondent, and amici have stressed regarding the importance of protecting the finality of convictions obtained through guilty pleas. We confronted a similar "floodgates" concern in Hill, see id. at 58, 106 S.Ct. 366, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty. A flood did not follow in that decision's wake. Surmounting Strickland's high bar is never an easy task... There is no reason to doubt that lower courts-now quite experienced with applying Strickland-can effectively and efficiently use its framework to separate specious claims from those with substantial merit. Padilla, 130 S.Ct at The text of the Padilla opinion, therefore, suggests that the Padilla holding is of such fundamental significance to receive retroactive application under Witt. In the end, Mr. Aguas respectfully submits, that because of the critical, widespread impact that Padilla will have on all non-citizens who are legally present in the United States, the Padilla decision should receive retroactive application. Retroactivity of Padilla is in the spirit of the opinion itself, which seeks to ensure that all individuals present in the United States, regardless of their immigration status, be afforded the benefit of competent counsel. In that regard, Padilla is essentially an extension of Gideon v. Wainwright, 372 U.S. 335 (1963), which the Supreme Court has long recognized as an example of an opinion that 12

13 would undoubtedly receive retroactive effect. See Saffle v. Parks, 494 U.S. 484, 495 (1990); Gray v. Netherland, 518 U.S. 152, 170 (1996); O'Dell v. Netherland, 521 U.S. 151, 167 (1997); Beard v. Banks, 542 U.S. 406, 420 (2004). Given those considerations, Mr. Aguas respectfully requests this Honorable Court to exercise jurisdiction in this case and ultimately find that Padilla applies retroactively to cases such as his. In the alternative, Mr. Aguas would ask this Court to hold this case in abeyance until the United States Supreme Court issues its opinion in Chaidez concerning the retroactivity of Padilla. Were Padilla to apply retroactively, Mr. Aguas' case would squarely fallen within the Padilla holding and Mr. Aguas would have been entitled to relief on his motion to vacate. 13

14 CONCLUSION For the reasons set forth above, Petitioner Luis Aguas respectfully requests this Court to review the decision below. Respectfully.su,. JERVJKTVlTE,-ESQ. BJORN E. BRUNVAND, P.A. 615 Turner Street Clearwater, FL Phone: (727) Fax: (727) Florida Bar No COUNSEL FOR APPELLANT 14

15 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by mail to the Respondent, the State of Florida, at the Office of the Attorney General, Criminal Appeals Division, Concourse Center 4, 3507 E. Frontage Road, Suite 200, Tampa, FL on this 28th day of January, 2. JERÝI. 'ÉJO UNVAND, P.A. ' Flo Bar No Turner Street Clearwater, FL Phone: (727) Fax: (727) COUNSEL FOR APPELLANT CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that this brief is formatted in compliance with FLA. R. APP. P (2013). J. JERÝIS WIS,. -- BJORN E. AND, P.A. Florida Bar No Turner Street Clearwater, FL Phone: (727) Fax: (727) COUNSEL FOR APPELLANT 15

16 NOT FINAL IJNTIL TIME EXPIRES TO FILE REHEA MOTION AND, IF FILED, DETERMINED ING IN THE DISTRICT COllRT OF APPEAL OF FLORIDA SECOND DISTRICT LUIS FELIPE AGUAS, ) Appellant, ) v. ) Case No. 2D STATE OF FLORIDA, ) Appellee. ) ) Opinion filed November 9, Appeal pursuant to Fla. R. App. P, 9.141(b)(2) from the Circuit Court for Pinellas County; Cynthia J. Newton, Judge. J. Jarvis Wise of Bjorn E. Brunvand, P.A., Clearwater, for Appellant. BLACK, Judge. Luis Aguas appeals the summary denial of his motion f r postconviction relief filed pursuant to Florida Rule of Criminal Procedure The postconviction court ruled that the motion was untimely, and we agree. See Barrios Cruz v. State, 63 So. 3d 868 (Fla. 2d DCA 2011). As we did in Barrios-Cruz, we hold t at Padilla v.

17 Kentucky, 130 S. Ct (2010), does not apply retroactively in postconviction proceedings, and we certify the following question of great public importance: SHOULD THE RULING IN PADILLA V. KENTUCKY, 130 S. Ct (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDING$? Affirmed; question certified. CRENSHAW and WALLACE, JJ., Concur