ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS. Division I Opinion by JUDGE ROMÁN Taubman and Fox, JJ., concur

12CA0378 Peo v. Rivas-Landa 07-11-2013 COLORADO COURT OF APPEALS Court of Appeals No. 12CA0378 Adams County District Court No. 10CR558 Honorable Chris Melonakis, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Lorena Rivas-Landa, Defendant-Appellant. ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS Division I Opinion by JUDGE ROMÁN Taubman and Fox, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced July 11, 2013 John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee The Noble Law Firm, LLC, Antony M. Noble, Lakewood, Colorado, for Defendant-Appellant DATE FILED: July 11, 2013

Defendant, Lorena Rivas-Landa, appeals the trial court s order summarily denying her Crim. P. 35(c) motion alleging ineffective assistance of counsel. We reverse and remand for a hearing. I. Background Defendant, a Mexican citizen, entered the United States with her family in 1995, at the age of twelve. She has continuously lived in the United States since that time and now has three children, who are United States citizens. In 2010, defendant was arrested for theft of merchandise from a department store. At her arraignment, her attorney requested and was granted a continuance due to immigration concerns. Defendant later pled guilty to misdemeanor theft, section 18-4-401(1), (2)(b.5), C.R.S. 2012, and was sentenced to one year of probation. She successfully completed her sentence on June 13, 2011, and her probation was terminated. Defendant filed a Crim. P. 35(c) motion to withdraw her guilty plea on the ground that she was denied her constitutional right to effective assistance of counsel. The trial court denied the motion without a hearing. 1

II. Ineffective Assistance of Counsel Defendant contends her trial counsel was ineffective for failing to properly advise her of the deportation consequences of pleading guilty to misdemeanor theft. Because defendant has alleged sufficient facts that if true would provide a basis for relief, she is entitled to a hearing. A. Legal Standards Governing Ineffective Assistance of Counsel We review a trial court s summary denial of a Crim. P. 35(c) motion de novo. People v. Kazadi, 284 P.3d 70, 72 (Colo. App. 2011) (Kazadi I), aff d, 2012 CO 73 (Kazadi II). A court must hold an evidentiary hearing on a Crim. P. 35(c) motion unless the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief. Kazadi II, 17. A defendant s motion need not provide evidentiary support for his or her allegations, but need only assert facts that if true would provide a basis for relief. White v. Denver Dist. Court, 766 P.2d 632, 635 (Colo. 1988). In reviewing a defendant s claim for ineffective assistance of counsel during the plea process, we apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Hill 2

v. Lockhart, 474 U.S. 52, 58 (1985); see Padilla v. Kentucky, 559 U.S. 356,, 130 S.Ct. 1473, 1482 (2010). Specifically, to succeed on a claim of ineffective assistance of counsel in the plea context, a defendant must show that (1) counsel s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59; People v. Campos-Corona, 2013 COA 23, 10. In the context of a plea attorney s advice to a noncitizen regarding deportation, deficient performance under the first prong of Strickland depends on whether the relevant immigration law is succinct and straightforward. Padilla, 599 U.S. at, 130 S.Ct. at 1483. In cases where the deportation consequences are unclear or uncertain, a criminal defense attorney need only advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. Id. However, when the deportation consequence is clear, the duty to give correct advice is equally clear. Id. 3

B. Deficient Performance Because the level of necessary advice turns on the certainty of the applicable immigration law, we first determine whether the immigration law relevant to defendant s case was clear. We conclude that it was. 1. Trial Court s Findings Regarding Deficient Performance In her Crim. P. 35(c) motion, defendant alleged that (1) when the complaint and information were filed, she was in removal proceedings in immigration court; (2) her trial counsel knew she had immigration concerns; (3) prior to her plea, she met the eligibility requirements for cancellation of removal pursuant to 8 U.S.C. 1229b(b)(1) (2008); (4) her trial counsel did not advise her of the immigration consequences of pleading guilty to theft; and (5) because of her guilty plea, she became ineligible for cancellation of removal. The trial court made two findings relative to defense counsel s duty in this context. First, the trial court note[d] that the Defendant had retained counsel in the immigration proceedings and that her court-appointed attorney had deferred to the Defendant s immigration counsel. Second, the trial court found that there is 4

no showing that the Defendant would have been permitted to remain in the United States because she was not legally in this country by virtue of a valid visa or other residency permit. The trial court s first finding regarding immigration counsel is not supported by the record. At one point during the proceedings, defense counsel asked for a continuance based on defendant s immigration concerns. Defense counsel explained, [Defendant] is represented by [immigration] counsel. I have tried to reach that attorney. That attorney was not available when I called. However, nothing in the record supports the trial court s finding that defense counsel deferred to immigration counsel or that defendant was advised regarding immigration consequences. On the contrary, defendant alleges in her motion that she did not receive adequate advice. Regarding the trial court s second finding -- that defendant was not legally in the country -- defendant did not allege that she was a legal permanent resident. Instead, she alleged that she was eligible for cancellation of removal pursuant to 8 U.S.C. 1229b(b)(1). Therefore, we next examine the law applicable to undocumented noncitizens to determine whether her deportation 5

consequence was clear. 2. Law Applicable to Undocumented Noncitizens Unlike the defendant here, the defendants in Padilla, Kazadi, and Campos-Corona were legal permanent residents. The crimes in those cases involved controlled substances, requiring automatic deportation. Padilla, 559 U.S. at, 130 S.Ct. at 1483; Kazadi, 284 P.3d at 74; Campos-Corona, 11. Likewise, in People v. Pozo, 746 P.2d 523 (Colo. 1987), the defendant, who was a legal resident, was subject to automatic deportation following his plea. Id. at 528. Here, however, defendant was not a legal permanent resident. Instead, she alleged that, prior to her guilty plea, she was eligible for cancellation of removal pursuant to 8 U.S.C. 1229b(b)(1). Section 1229b(b)(1) permits the Attorney General to [C]ancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien- (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; 6

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. Under part (C), which references various offenses that would make a noncitizen ineligible, 8 U.S.C. 1227(a)(2)(A)(i) (2008), specifies crimes of moral turpitude. It states: Any alien who -- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. Defendant asserted that, prior to her guilty plea, she met each of the four criteria necessary for cancellation of removal. However, following the entry of her plea, she became deportable because her conviction was a crime of moral turpitude, and the parties agree that theft is a crime of moral turpitude for purposes of the statute. See United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir. 7

1999) (noting that every federal circuit to address the issue in the context of the immigration laws has concluded that petty theft is a crime involving moral turpitude for purposes of those laws ). We conclude that the statute clearly states that defendant is ineligible for cancellation of removal after pleading guilty to a crime of moral turpitude. See Padilla, 559 U.S. at, 130 S.Ct. at 1483 (defense counsel could have easily determined that [the defendant s] plea would make him eligible for deportation simply from reading the text of the statute ). Further, although defendant s eligibility for cancellation of removal may have been discretionary prior to her plea, the statute left no room for the exercise of discretion following her plea. See People v. Burgos, 950 N.Y.S.2d 428, 441-42 (N.Y. Sup. Ct. 2012) (undocumented noncitizen s guilty plea unquestionably deprived him of any avenue by which he could avoid deportation, including cancellation of removal); see also Padilla, 559 U.S. at, 130 S.Ct. at 1483 (stressing the importance of preserving the possibility of discretionary relief from deportation (quoting INS v. St. Cyr, 533 U.S. 289, 323 (2001))). Although factually distinguishable, the People cite Ex parte 8

Rodriguez, 378 S.W.3d 486 (Tex. Ct. App. 2012), a case also involving cancellation of removal. In that case, the defendant was a lawful permanent resident eligible for discretionary relief under 8 U.S.C. 1229b(a). Id. at 490. However, the defendant s conviction also involved crimes of moral turpitude, making her deportable. Id. The Texas Court of Appeals determined that due to the discretionary nature of cancellation of removal, the defendant s deportation consequence was not truly clear. Id. at 493. Significantly, the Rodriguez court also noted that in cases when a defendant is charged with an offense where the statute succinctly, clearly, and explicitly makes her removable, and the defendant is not eligible for cancellation of removal, her deportation consequence -- like Padilla s -- is truly clear. Id. at 493. Burgos, like this case, involved an undocumented noncitizen. 950 N.Y.S.2d at 439. There, the defendant was immediately deportable based on his conviction of a controlled substance offense. The elimination of his eligibility for remedies allowing him to remain in the country -- including cancellation of removal -- rendered defendant subject to deportation without recourse. Id. at 442. Thus, the clarity of the law at the time of [the] defendant s 9

plea triggered plea counsel s higher duty under Padilla to give correct advice[.] Id. at 441. Similarly here, defendant is removable based on her status as an undocumented noncitizen. Under the statute, she is clearly not eligible for cancellation of removal as a result of her plea. Consequently, because defendant was subject to mandatory removal but was not so advised, we conclude that she has asserted facts alleging that her counsel s performance fell below an objective standard of reasonableness. See Campos-Corona, 13 (trial court erred in finding that counsel s performance was reasonable because the defendant was not advised of mandatory removal and the relevant law was succinct and straightforward). The People assert that defendant had a prior conviction -- that likely constitutes a crime of moral turpitude -- complicating the immigration consequences. However, as conceded by the People, no case law interprets the alleged conviction (possession of a financial device) as a crime of moral turpitude, and the presence of a possible earlier conviction does not change the analysis of counsel s duty here. Simply put, after defendant pled guilty to theft, she was no longer eligible for cancellation of removal. Therefore, her 10

deportation consequence was clear. We next address whether defendant has sufficiently alleged prejudice. See Kazadi I, 284 P.3d at 74 (where the defendant sufficiently alleged deficient performance, appellate court must next address prejudice). We conclude that she has. C. Prejudice In evaluating the prejudice prong under Strickland for allegations of ineffective assistance of counsel during the plea process, the ultimate question to consider involves whether the defendant would have changed the plea. People v. Finney, 2012 COA 38, 71 (quoting Miller v. Champion, 262 F.3d 1066, 1074-75 (10th Cir. 2001)). To answer that question, we assess whether a decision to reject the plea bargain would have been rational under the circumstances. Padilla, 559 U.S. at, 130 S.Ct. at 1485. The stakes are particularly high for an undocumented noncitizen who has resided in this country for a substantial period of time. Burgos, 950 N.Y.S.2d at 439 (quoting Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947)). Therefore, a thorough evaluation of the circumstances is warranted. Id. Indeed, the determination of prejudice under the Strickland test will invariably 11

involve questions of credibility for resolution by the trial court. Pozo, 746 P.2d at 529 n.8. Defendant s motion asserts that, but for her counsel s errors, she would not have pled guilty to theft. Specifically, defendant pointed out that her three children are United States citizens. She also explained that her mother, brother, sisters, aunts, and cousins all live in the United States and that she does not have friends or family members living in Mexico. Further, she asserted that, without her conviction, she was eligible for cancellation of removal because she had been in the country for more than ten years, had been a person of good moral character, and her three children would suffer exceptional and extremely unusual hardship if she were removed from the United States. See 8 U.S.C. 1229b(b)(1). Defendant s expectations that she may be entitled to cancellation of removal are reasonable. Here, the record indicates that defendant had an immigration attorney at the time of her arraignment. In her Crim. P. 35 motion, she states that she was eligible for cancellation of removal and offered support for each criterion. Therefore, her case sits in contrast to others where the defendant had no reasonable expectation that he or she had a right 12

to remain in the United States. Cf., e.g., State v. Guerrero, S.W.3d, n.55 (Tex. Crim. App. No. PD-1258-12, June 5, 2013) (undocumented noncitizen not eligible for cancellation of removal proceedings where he could not demonstrate that he would have been in the country for ten continuous years or that his removal would subject him to exceptional and extremely unusual hardship). We conclude that defendant has asserted facts that if true would satisfy the prejudice prong of the Strickland standard. Therefore, she is entitled to a hearing on her motion. See Kazadi I, 284 P.3d at 75 (allegations of prejudice sufficient to warrant a hearing where the defendant alleged personal circumstances and lack of ties to his country of citizenship to support his assertion that he would not have pleaded guilty had he received sufficient advice). III. Conclusion The trial court s order is reversed and the case is remanded for an evidentiary hearing on defendant s motion for postconviction relief. JUDGE TAUBMAN and JUDGE FOX concur. 13

CHRIS RYAN CLERK OF THE COURT STATE OF COLORADO 2 East 14 th Avenue Denver, CO 80203 (720) 625-5000 PAULINE BROCK CHIEF DEPUTY CLERK NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue fortythree days after entry of the judgment. In worker s compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(I), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect. Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b) will also stay the mandate until the Supreme Court has ruled on the Petition. BY THE COURT: Janice B. Davidson Chief Judge DATED: December 26, 2012 Notice to self-represented parties: The Colorado Bar Association provides free volunteer attorneys in a small number of appellate cases. If you are representing yourself and meet the CBA low income qualifications, you may apply to the CBA to see if your case may be chosen for a free lawyer. Self-represented parties who are interested should visit the Appellate Bro Bono Program page at http://www.cobar.org/index.cfm/id/21607.