State v. Barajas-Verduzco (In re Barajas-Verduzco)

STATE OF WASHINGTON, Respondent, v. MIGUEL BARAJAS-VERDUZCO, Appellant.

IN THE MATTER OF PERSONAL RESTRAINT OF MIGUEL BARAJAS-VERDUZCO, Petitioner.

No. 33431-7-III

c/w No. 33055-9-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

May 9, 2017

UNPUBLISHED OPINION

FEARING, C.J. — This appeal raises a unique issue in the context of Padilla v. Kentucky cases. Miguel Barajas-Verduzco's trial attorney accurately warned Barajas-Verduzco that his guilty plea would lead to deportation, but the attorney also recommended that Barajas-Verduzco unlawfully return to the United States after deportation and the attorney stated he would assist Barajas-Verduzco in gaining lawful residency. When the attorney failed to assist Barajas-Verduzco, upon the latter's return to the United States, Barajas-Verduzco filed this personal restraint petition and appeal, by which he seeks to vacate, on the ground of ineffective assistance of counsel, his 2003 guilty plea on charges of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of stolen property in the first degree, and alien in possession of a firearm. We reject Barajas-Verduzco's appeal and deny his personal restraint petition because Barajas-Verduzco's unclean hands in engaging in illegal conduct prevent his raising his claim of ineffective assistance of counsel.

FACTS

Miguel Barajas-Verduzco, presumably without permission, entered the United States in 1998. In 2003, he commenced a relationship with Maria Manzo.

On December 30, 2003, Miguel Barajas-Verduzco pled guilty to charges of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of stolen property in the first degree, and alien in possession of a firearm. Attorney Theodore Mahr then represented Barajas-Verduzco.

In a 2012 affidavit, Miguel Barajas-Verduzco declared that, before the 2003 plea, he asked attorney Theodore Mahr if he should fight the charges so he could stay in the United States. Theodore Mahr advised him that Mahr had arranged the best possible plea agreement. According to Barajas-Verduzco, Mahr warned Barajas-Verduzco that authorities would deport him after his release from state prison, but he should hire a Mexican coyote to assist in a return to the United States. Mahr further claimed to be animmigration attorney and that, once Barajas-Verduzco returned to Washington, Mahr could "help [Barajas-Verduzco] with [his] immigration case." Clerk's Papers (CP) at 32. Theodore Mahr did not inform Barajas-Verduzco that, if he pled guilty to a drug crime, he would forever lose his rights to be in the United States. Barajas-Verduzco deemed himself fortunate to garner an attorney with both criminal and immigration law expertise.

According to his 2012 affidavit, Miguel Barajas-Verduzco trusted the recommendations of Theodore Mahr. If he knew that a guilty plea would cause his banishment from the United States for life, he would not have pled guilty. He would have hired a better lawyer.

At the December 30, 2003 plea hearing, the State's attorney declared, within Miguel Barajas-Verduzco's hearing: "he's pleading guilty as charged. He is looking at deportation upon conviction." CP at 47. The prosecution also mentioned a companion case against Maria Manzo, wherein the State agreed to offer Barajas-Verduzco's companion a jail sentence of time already served in exchange for a guilty plea of conspiracy to deliver cocaine. Near the close of the December 30 plea hearing, the trial court asked Barajas-Verduzco:

Do you understand that if you're not a citizen, a plea to this charge would make it almost impossible to become a citizen?

[BARAJAS-VERDUZCO]: Yes.

CP at 51. Barajas-Verduzco signed a statement on plea of guilty that read in part:

If I am not a citizen of the United states, a plea of guilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

CP at 7. Neither the court nor Theodore Mahr advised Barajas-Verduzco of his right to appeal his sentence.

After Miguel Barajas-Verduzco served his Washington State sentence, the United States government at some unknown time deported him to Mexico. Within months of deportation, Barajas-Verduzco illegally reentered the United States and has remained in this country since. Barajas-Verduzco does not disclose the details of his reentry and does not mention whether he hired a coyote. He characterizes his return as harrowing.

In his 2012 affidavit, Miguel Barajas-Verduzco avers that he telephoned Theodore Mahr on his reentry into the United States. Mahr remembered Barajas-Verduzco. Mahr recommended that Barajas-Verduzco delay seeking permission to stay in the United States because Mahr predicted the United States government would soon grant amnesty to illegal residents. Barajas-Verduzco waited.

In his 2012 affidavit, Miguel Barajas-Verduzco relates other comments made by Theodore Mahr presumably during the same telephone conversation, although the comments may conflict with Barajas-Verduzco's claim that Mahr told him to delay and that Barajas-Verduzco waited. According to Barajas-Verduzco, Mahr stated he stillassisted clients with immigration issues and that, if Barajas-Verduzco paid him $1,500, Mahr would research the law to determine a way that Mahr could gain residency status. Barajas-Verduzco could then apply for residency. When the United States Immigration and Custom Enforcement agency arrested Barajas-Verduzco, he had begun collecting money to remunerate Theodore Mahr for his services.

At some unknown time, the United States Immigration and Customs Enforcement agency captured Miguel Barajas-Verduzco. By 2014, the agency held Barajas-Verduzco in Tacoma.

PROCEDURE

On November 16, 2012, Miguel Barajas-Verduzco filed with the superior court an affidavit that the court considered as a motion to vacate his guilty plea and judgment. In support of Barajas-Verduzco's motion, immigration attorney Andrew White signed a declaration averring that Barajas-Verduzco's conviction for possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of stolen property in the first degree prevented Barajas-Verduzco from the possibility of stopping his removal from the United States. With the convictions and despite his unlawful presence here, Barajas-Verduzco may have successfully prevented removal, if detained, because of his length of residency and his children being United States citizens. According to White, Theodore Mahr should have informed Barajas-Verduzco of theseconsequences from his 2003 guilty plea.

On January 9, 2015, the superior court entered an order transferring the motion to vacate the judgment of conviction to this court as a personal restraint petition. In the transfer order, the superior court wrote:

Based upon the affidavits of the defendant filed November 6, 2012 and March 3, 2014, the court finds that defense counsel at the time of defendant's plea did not provide any affirmative misadvice to the defendant regarding the immigration consequences of his plea.

. . . The defendant has not made a substantial showing of entitlement to relief.

Br. of Resp't at App. B.

On May 22, 2015, Miguel Barajas-Verduzco filed a notice of appeal of his December 30, 2003, guilty plea. Our court commissioner adjudged the notice of appeal to be timely since the trial court did not advise him of his right to appeal the judgment and sentence at the time of his December 2003 guilty plea. This court consolidated the personal restraint petition with the appeal.

In a statement of additional grounds (SAG), Miguel Barajas-Verduzco declares:

I want the court to know that Ted Mahr my lawyer in this case lied to me so that I would take a deal. Mr. Mahr said that it didn't matter if I said that I was guilty for this case, that he could still get me a green card. He said that I would get deported by immigration only because I didn't have a permission. If I could just return, then he said he would file special papers that would give me a green card.

SAG at 1. This court lacks any testimony from Ted Mahr concerning legal advice given to Barajas-Verduzco.

LAW AND ANALYSIS

Personal Restraint Petition and Appeal

In both his personal restraint petition and his direct appeal, Miguel Barajas-Verduzco argues that he received ineffective assistance of counsel because Theodore Mahr misadvised him of clear immigration consequences of his guilty plea. Therefore, according to Barajas-Verduzco, Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) compels vacation of his plea. The State responds that Mahr's performance may have been deficient, but the deficiency did not prejudice Barajas-Verduzco because the State possessed overwhelming evidence of guilt against Barajas-Verduzco such that Barajas-Verduzco would have accepted the plea anyway.

Because we review Miguel Barajas-Verduzco's personal restraint petition, we may consider affidavits filed by Barajas-Verduzco in support of his motion to vacate. In re Personal Restraint of Ramos, 181 Wn. App. 743, 749, 326 P.3d 826 (2014), review granted, 181 Wn.2d 1029, 340 P.3d 229 (2015). Because we also review this case on direct appeal, Barajas-Verduzco receives the benefit of the changes in law since his 2003 plea. In re Personal Restraint of Ramos, 181 Wn. App. at 749. Anyway, our state high court has held that Padilla v. Kentucky did not announce a new rule as applied inWashington and therefore the benefits of Padilla apply retroactively to defendants in collateral review. In re Personal Restraint of Young-Cheng Tsai, 183 Wn.2d 91, 103, 351 P.3d 138 (2015).

Misadvice of Attorney

Washington's CrR 4.2(f) addresses a withdrawal of a guilty plea. The rule reads:

Withdrawal of Plea. The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it appears that

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