This memorandum opinion was not selected for publication in
the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions
on the citation of unpublished memorandum opinions. Please also note that this
electronic memorandum opinion may contain computer-generated errors or other
deviations from the official paper version filed by the Court of Appeals and
does not include the filing date.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
GUILLERMO CONTRERAS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY, Camille
M. Olguin, District Judge
Hector H. Balderas, Attorney General,
Margaret McLean, Assistant Attorney General, Olga Serafimova, Assistant
Attorney General, Santa Fe, NM for Appellee
Honce Law Office, LLC, Elizabeth A.
Honce, Albuquerque, NM, for Appellant
J. MILES HANISEE, Judge. WE CONCUR:
RODERICK T. KENNEDY, Judge, TIMOTHY L. GARCIA, Judge
{1} Defendant appeals
from the district court’s denial of his motion for relief from judgment,
wherein Defendant sought to set aside the guilty plea on grounds that Rule
5-303(F)(5)
NMRA, requiring that the district court both notify a defendant of, and
determine his or her understanding regarding, possible immigration consequences
associated with a plea of guilty. The rule as well requires that district
courts ensure that defense counsel advises defendants regarding the immigration
consequences they will face upon a plea of guilty. In this regard, Defendant
also sought relief based upon his attorney’s ineffectiveness. On appeal,
Defendant argues that: (1) he did not receive adequate translation services
during his plea hearing; (2) the district court erred in ruling that Defendant
failed to establish ineffective assistance of counsel; and (3) the district
court erred in ruling that Defendant failed to establish a Rule 5-303(F)(5)
violation. As to his final point of appeal, we reverse the district court and
remand for proceedings consistent with this Opinion.
{2} Defendant, a
citizen of Mexico, was arrested for intentional possession of cocaine, contrary
to NMSA 1978, Section
30-31-23 (1990, amended 2011), and use or possession with
intent to use drug paraphernalia, contrary to NMSA 1978, Section
30-31-25.1
(1997, amended 2001). In 2002, Defendant entered into a plea agreement with the
State, pursuant to which he pled guilty to one count of cocaine possession, a
fourth degree felony. After the district court accepted Defendant’s guilty
plea, it inquired as to whether Defendant was a United States citizen. On the
audio tape of the proceeding, an unidentified individual can be heard to reply
in the negative. The court stated that at the upcoming sentencing hearing, it
would like to know how sentencing would affect Defendant’s “ability to stay in
the United States.” Defense counsel stated that he did not “think a deferred
sentence would have [an effect] because there is no entry of guilt.” The court
requested that this information be verified and instructed both the defense and
the State to conduct research on the matter. Defense counsel again reiterated
that he did not “believe [a deferred sentence] would have an effect because as
a deferral there is no adjudication.”
{3} At the sentencing
hearing, an Adult Probation and Parole officer (APPO) recommended, as set forth
within a presentence report that had been prepared regarding Defendant, that
the court impose only a deferred sentence. Defense counsel requested that the
court additionally “consider a conditional discharge” due to what his
perception that the APPO thought there might in fact be “a possible problem
with the [Immigration and Naturalization Service].” The court asked if there
would be a problem with deferring the sentence, and defense counsel responded:
I think with the deferral, according
to the presentence report, there is. I think with the conditional discharge,
there probably won’t be because a judgment is never entered; a finding of guilt
is never entered, and obviously [Defendant] would be under the same terms and
conditions that the probation office is recommending on a deferred sentence.
After conferring with the APPO, the court noted that
deportation would be triggered “either with a conditional discharge, with a
deferral, with a suspended [sentence], or imposition of sentence. All four of
those would cause the trigger because of the plea.” Ultimately, the district
court followed the recommendation of the APPO and deferred Defendant’s sentence
for a period of eighteen months. Defendant completed his probationary period
without revocation and the district court entered an order of dismissal.
{4} Although not a part
of the record on appeal, Defendant explains that approximately six years after
the district court entered the dismissal, he was taken into the custody of
Immigration and Customs Enforcement following a traffic stop. At that time,
Defendant obtained new counsel and filed a motion to withdraw his initial plea
or to set aside the judgment and sentence. Defendant claimed that the requisite
inquiry was not made regarding whether he understood that his plea may bare
upon his immigration status, and he was “never advised by his attorney of the
specific immigration consequences of his plea.”
1
Defendant alleged that had he “known the specific collateral immigration
consequences to his plea, [he] would have exercised his [c]onstitutional
[r]ight . . . to a trial by jury and would not have agreed to plead[.]”
{5} The district court
held a hearing on Defendant’s motion, and Defendant subsequently filed a motion
for relief from judgment pursuant to Rule
1-060(B)(6) NMRA of the Rules of
Civil Procedure, where Defendant again asserted that during the plea and
sentencing hearings, he was never asked if he understood the immigration
consequences of his plea nor was he informed as to what the immigration
consequences would be. Defendant additionally claimed that his counsel’s
failure to properly advise him of the immigration consequences constituted
ineffective assistance of counsel that resulted in prejudice to Defendant as he
had been detained and placed into removal proceedings before an immigration
court. Defendant again argued that had he known of the specific immigration
consequences of his plea, he would have exercised his constitutional right to
trial by jury. Ultimately, Defendant asserted that his judgment was void because
he received ineffective assistance of counsel and because his plea was not
“willfully, knowingly, or intelligently made.”
{6} Alternatively,
Defendant filed a petition for a writ of habeas corpus, seeking to have his
sentence vacated and his conviction set aside on the same bases that he was
denied effective assistance of counsel and that his plea was not willful,
knowing, or voluntary. Defendant alleged a violation of his Sixth and
Fourteenth Amendments under the United States Constitution and his Article II,
Section 14 rights under the New Mexico Constitution. After a hearing on the
matters, the district court issued a ruling, noting that Defendant sought to
withdraw his plea and have the judgment set aside on the bases of a violations
of Rule 1-060 and Rule 5-303(F)(5).
{7} In ruling against
Defendant, the district court held that: (1) Defendant’s claim regarding his
lack of knowledge as to the effect of his plea on his immigration status was
not credible based upon the transcript of the sentencing hearing; (2) Defendant
failed to demonstrate the unconstitutionality of his plea and sentence as
“Defendant was present at two recorded hearings where discussion of his guilty
plea, and [its] [e]ffect on immigration, was discussed” and “Defendant was notified
in court hearings[] . . . heard extensive argument in court hearings that the
guilty plea would affect his ability to remain the country”; (3) the record was
silent as to a violation of Rule 3-303(F)(5), as portions of the sentencing
hearing discussing Defendant’s constitutional rights were absent and after the
plea was accepted, the district court asked the attorneys to research the
immigration consequences, thereby putting Defendant “on notice that his guilty
plea could affect his immigration status.” Accordingly, the district court
denied Defendant’s motion for relief from judgment or, in the alternative, his
petition for writ of habeas corpus.
{8} In his brief in
chief, Defendant explains that ultimately he voluntarily departed the United
States and is currently permanently disallowed entry into the United States.
Defendant appeals the district court’s denial of his Rule 1-060(B) motion for
relief from judgment or sentence, arguing that the district court erred in
ruling that Defendant: (1) received adequate translation during the plea
hearing, (2) failed to show ineffective assistance of counsel and prejudice
under Rule 1-060(B); and (3) failed to establish a Rule 5-303(F)(5) violation.
{9} Defendant contends
that the district court abused its discretion when it ruled that Defendant
failed to establish a Rule 5-303 violation. He asserts in this regard that the
district court failed to inform him that his plea may have an effect on his
immigration status and failed to inquire as to whether defense counsel advised
him of the immigration consequences of a plea. In support, Defendant cites to
the transcripts of the plea and sentencing hearings and claims that the only
inquiry made by the district court during the proceedings was whether he had
anything to say during the sentencing hearing. As a result of the claimed
error, Defendant maintains that his plea was not willfully, knowingly, and
intelligently made, and the plea should be withdrawn and the conviction voided.
{10} The State concedes
that the district court failed to comply with the requirements of Rule
5-303(F)(5), but argues that this was not the version of the rule in place at
the time Defendant entered his plea. The State asserts that Defendant cannot
rely on a later version of the rule to void his conviction. It additionally
argues that “[a] judgment is void only if the court rendering it lacked
jurisdiction of the subject matter, or of the parties, or acted in a manner
inconsistent with due process of law.”
Classen v. Classen,
1995-NMCA-022, ¶ 10,
119 N.M. 582,
893 P.2d 478 (emphasis, internal quotation
marks, and citation omitted). The State maintains that because federal due
process does not require a district court to inform defendants that their pleas
may have immigration consequences and because Defendant failed to argue that
the New Mexico Constitution should be subject to a varied interpretation, the
district court’s ruling should be affirmed.
{11} “A motion to
withdraw a guilty plea is addressed to the sound discretion of the [district]
court, and we review the [district] court’s denial of such a motion only for
abuse of discretion.”
State v. Garcia,
1996-NMSC-013, ¶ 7,
121 N.M. 544,
915 P.2d 300;
State v. Favela,
2013-NMCA-102, ¶ 16,
311 P.3d 1213. “The
district court abuses its discretion in denying a motion to withdraw a guilty
plea when the undisputed facts establish that the plea was not knowingly and
voluntarily given.”
State v. Paredez,
2004-NMSC-036, ¶ 5,
136 N.M. 533,
101 P.3d 799 (internal quotation marks and citation omitted). The relevant
inquiry is whether Defendant’s plea was knowing and voluntary, which requires
this Court to examine whether the district court complied with the requirements
of Rule 5-303(F)(5).
See Paredez,
2004-NMSC-036, ¶ 8 (“The procedures
established in Rule 5-303 are designed to ensure a guilty plea is made
knowingly and voluntarily.” (internal quotation marks and citation omitted)).
“A denial of a motion to withdraw a guilty plea constitutes manifest error when
the undisputed facts establish that the plea was not knowingly and voluntarily
given.”
Garcia,
1996-NMSC-013, ¶ 7.
{12} The version of Rule
5-303(F)(5) in place at the time Defendant challenged the proceedings in this
case states that the district court shall not accept a guilty plea without
first, in open court, informing the defendant that the guilty plea may have an
effect upon the defendant’s immigration status and determining if “the
defendant has been advised by counsel of the immigration consequences of a plea[.]”
Id. The previous version of Rule 5-303, in effect at the time Defendant
entered his plea, stated that the district court “shall not accept a plea of
guilty . . . without first, by addressing the defendant
personally in open court, informing the defendant of and determining that the
defendant understands . . . that, if the defendant is convicted of a crime, it
may have an effect upon the defendant’s immigration or naturalization status.”
Rule
5-303(E)(5) NMRA (2001). An examination of the record reveals that at the
plea hearing, the district court accepted Defendant’s guilty plea, and only
after
accepting the plea inquired as to Defendant’s citizenship. Upon discovering
that Defendant was not a citizen of the United States, the court asked both
defense counsel and the State to research the effects the sentence would have
on Defendant’s ability to remain in the country.
{13} Therefore, even
under the former version of the rule, the district court failed to comply with
the requirement of informing Defendant of and determining if Defendant
understood potential effects the plea may have on his immigration status.
Failure to advise Defendant of the potential impact of the guilty plea on his
immigration status, before the plea is completed, renders Defendant’s previously
stated guilty plea unknowing and involuntary.
See Garcia,
1996-NMSC-013,
¶ 23 (“Failure to advise a defendant of the potential penalties presumptively
affects defendant’s substantial rights and renders the plea unknowing and
involuntary.”). “An involuntary plea is inconsistent with the constitutional
guarantee of due process.”
State v. Robbins,
1967-NMSC-091, ¶ 19,
77
N.M. 644,
427 P.2d 10. Accordingly, we reverse the district court’s
determination that Defendant failed to establish a violation of Rule 5-303. We
remand with instructions to the district court to allow Defendant to withdraw
his plea.
See Garcia,
1996-NMSC-013, ¶ 24 (reversing and remanding to
the district court with instructions to allow the defendant to withdraw the
guilty plea where the district court failed to comply with Rule 5-303).
Allowing Defendant to withdraw his plea effectively disposes of the other
errors claimed on appeal; therefore, we do not reach them herein.
{14} For the foregoing
reasons, we reverse the decision of the district court and remand for
proceedings consistent with this Opinion.
RODERICK T. KENNEDY, Judge