People v. Corrales-Castro

412 P.3d 701

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Osvaldo CORRALES–CASTRO, Defendant–Appellant.

Court of Appeals No. 14CA0049

Colorado Court of Appeals, Div. VII.

Announced March 26, 2015

Modified on Denial of Rehearing May 21, 2015

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

The Meyer Law Office, P.C., Hans C. Meyer, Lee E. Knox, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERGER

¶ 1 Defendant, Osvaldo Corrales–Castro, appeals the district court's order denying his motion to withdraw his plea of guilty to the crime of criminal impersonation. The district court held that it lacked jurisdiction to consider the motion because the plea had already been withdrawn pursuant to a successfully completed deferred judgment.

¶ 2 We hold that, when, as here, a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant's inability to re-enter the country), Crim. P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, irrespective of its prior withdrawal. Accordingly, we reverse the district court's order and remand for further proceedings.

I. Relevant Facts

¶ 3 In 2009, defendant pleaded guilty to criminal impersonation and driving under the influence (DUI). The district court imposed a one-year deferred judgment and sentence (deferred judgment) on the criminal impersonation count, and one year of probation on the DUI count.

¶ 4 In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case.

¶ 5 In 2013, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. Specifically, defendant alleged that his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. The district court denied the motion, holding that it lacked jurisdiction to consider defendant's motion to withdraw his guilty plea.

II. Standard of Review

¶ 6 While normally we review the denial of a Crim. P. 32(d) motion for an abuse of discretion, People v. Martinez, 188 Colo. 169, 171–72, 533 P.2d 926, 928 (1975), here the district court ruled that it had no jurisdiction to consider defendant's motion. Whether a district court has jurisdiction over a matter is a question of law that we review de novo. People v. Maser, 2012 CO 41, ¶ 10, 278 P.3d 361.

III. Analysis

¶ 7 We begin with several fundamental propositions, none of which is disputed by either party.

¶ 8 First, "[b]efore deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel." Padilla v. Kentucky, 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (internal quotation marks omitted); see also Missouri v. Frye, 566 U.S. 134, 142, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012) ; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; People v. Roybal, 618 P.2d 1121, 1126 (Colo. 1980).

¶ 9 Second, when the terms of a relevant immigration statute are "succinct, clear, and explicit" in defining the immigration consequences of a plea to a particular charge, counsel must give "correct advice." Padilla, 559 U.S. at 368–69, 130 S.Ct. 1473 ; accord People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011) ( Kazadi I ), aff'd, 2012 CO 73, 291 P.3d 16 ( Kazadi II ). When the law is not succinct, clear, and explicit, "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 368–69, 130 S.Ct. 1473 ; accord People v. Vicente–Sontay, 2014 COA 175, ¶ 28, 361 P.3d 1046 ; Kazadi I, 284 P.3d at 73. In the deportation context, "counsel must inform her client whether his plea carries a risk of deportation" because the "seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families" demand no less under the Sixth Amendment. Padilla, 559 U.S. at 374, 130 S.Ct. 1473 ; see also Kazadi II, ¶ 31 (Bender, C.J., dissenting).

¶ 10 Third, a plea counsel's failure to comply with the above requirements may constitute ineffective assistance and render the resulting plea a violation of the defendant's Sixth Amendment right to counsel. See Padilla, 559 U.S. at 366, 130 S.Ct. 1473.

¶ 11 We now consider the facts of this case in light of those precepts. Defendant claims that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional. The People respond that, irrespective of whether that is so, defendant has already obtained the very relief that he now seeks—withdrawal of his guilty plea—and that the district court correctly held it lacked jurisdiction to consider defendant's motion to withdraw his plea.

¶ 12 We agree with part of the People's assertion: the guilty plea was withdrawn when defendant successfully completed the terms of the deferred judgment. See § 18–1.3–102(2), C.R.S. 2014 ("Upon full compliance with [the] conditions [of a deferred judgment], the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice."). However, we reject the People's arguments that defendant has therefore already obtained the relief he now seeks and that the district court was accordingly without jurisdiction to consider the Crim. P. 32(d) motion.

A. Defendant May Move to Withdraw His Guilty Plea Under Crim. P.32(d)

¶ 13 There are different varieties of plea withdrawals. When a plea that was entered unconstitutionally—because it was made in violation of the defendant's constitutional right to counsel under the Sixth Amendment—is withdrawn, it is void for any purpose. See State v. Moore, 165 Ohio App.3d 538, 847 N.E.2d 452, 457 (2006) ("A guilty plea is ... void if the defendant does not receive effective assistance of counsel" and a void guilty plea "carries no force or effect at law.").

¶ 14 Not so with respect to a plea that is withdrawn after the successful completion of a deferred judgment. To be sure, a plea withdrawn after the successful completion of a deferred judgment no longer has any direct consequences under state law.¹

¶ 15 Nevertheless, under federal immigration law, a guilty plea withdrawn after the successful completion of a deferred judgment remains a "conviction" that may require removal of the defendant from the United States. See, e.g., Pinho v. Gonzales, 432 F.3d 193, 205 (3d Cir. 2005). In contrast, a guilty plea that is withdrawn because it is unconstitutional is not a "conviction" for federal immigration purposes and does not require removal of the defendant from the United States or necessarily prohibit re-entry after removal. See id. at 209–10.

¶ 16 Thus, defendant's guilty plea, which was entered under Colorado law and accepted by a Colorado court, may still have serious immigartion consequences, despite having been withdrawn upon defendant's successful completion of the deferred judgment. The question is whether Colorado law provides any avenue of relief for defendant. We hold that it does.²

¶ 17 Both the supreme court and this court have wrestled with this and related issues. In Kazadi, the defendant pleaded guilty to, and received a deferred judgment for, offenses which required his removal from the United States. Kazadi II, ¶¶ 4, 5, 7. He later claimed that he had received ineffective assistance of counsel in connection with the plea and moved under Crim. P. 35(c) to vacate the deferred judgment. Id. at ¶ 8.

¶ 18 The supreme court held that the defendant could not challenge a guilty plea made in accordance with a deferred judgment agreement under Crim. P. 35(c) because that rule requires a judgment of conviction as a predicate to relief. Id. at ¶¶ 16, 19. The deferred judgment statute, section 18–1.3–102, provides that a judgment of conviction will not be entered during the pendency of a deferred judgment. Therefore, "a deferred judgment is not a final judgment, and thus may not be subject to ... Crim. P. 35(c) review ... until revoked." Kazadi II, ¶ 18 (internal quotation marks omitted). Still, the supreme court held that the defendant could challenge his plea under Crim. P. 32(d) because no sentence had yet been imposed or suspended. Id. at ¶ 20.

¶ 19 Notably, in Kazadi, unlike this case, when the defendant challenged his guilty plea, the period of his deferred judgment had not yet expired.

¶ 20 In People v. Espino–Paez, 2014 COA 126, ¶¶ 10–16, 410 P.3d 548, a case very similar to this case, a divided division of this court concluded that this distinction was determinative and held that the district court lacked jurisdiction to consider the defendant's Crim. P. 32(d) motion to withdraw his guilty plea. The division reached this conclusion because the motion was filed after the defendant had successfully completed the deferred judgment, the district court had withdrawn the guilty plea, and the case had been dismissed with prejudice. Id. at ¶¶ 11–13. The division distinguished Kazadi on the basis that in Kazadi, the defendant's guilty plea had not yet been withdrawn upon successful completion of the deferred judgment. Id. at ¶ 15.

¶ 21 Judge Taubman dissented in part from the majority's opinion in Espino–Paez . Id. at ¶¶ 19–43 (Taubman, J., concurring in part and dissenting in part). He opined that the supreme court in Kazadi did not limit its holding to "uncompleted or pending deferred judgments" and that, accordingly, under Kazadi, the district court in Espino–Paez had jurisdiction to...