State v. Ramos (In re Petition for Relief from Pers. Restraint Ramos)

181 Wash.App. 743

326 P.3d 826

In re the Petition for Relief from Personal Restraint of Juan Pedro RAMOS, Petitioner.State of Washington, Respondent,

v.Juan Pedro Ramos, Appellant.

Nos. 30150–8–III, 30766–2–III.

Court of Appeals of Washington, Division 3.

June 8, 2014.

Reconsideration Denied June 12, 2014.

Publication Ordered June 12, 2014.

Brent Adrian De Young, De Young Law Office, Moses Lake, WA, for Appellant/Petitioner.

Shawn P. Sant, Franklin County Prosecutor's Office, Frank William Jenny II, Attorney at Law, Pasco, WA, for Respondent.

FEARING, J.

¶ 1 We once again address the ramifications of Padilla v. Kentucky, 559 U.S. 356 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In 1997, noncitizen Juan Pedro Ramos pled guilty to the crime of first degree theft. Through an appeal and a personal restraint petition, Ramos seeks to vacate the guilty plea, claiming his criminal defense attorney failed to inform him that the crime was a deportable offense. We rule that Ramos did not suffer from ineffective assistance of counsel, since the immigration consequences of his plea were not clear and he was warned of possible deportation. We deny the plea vacation.

FACTS

¶ 2 Juan Pedro Ramos is not a United States citizen, although his parents, on his behalf, applied for a green card in 1992. On December 26, 1996, the State of Washington charged Ramos with first degree theft. The State alleged Ramos and two others planned to steal 23 cars, valued at over $690,000, from a dealership. The court appointed attorney Rem Ryals to represent him.

¶ 3 On January 21, 1997, Juan Pedro Ramos pled guilty to first degree theft. In the signed statement of defendant on plea of guilty, Ramos acknowledged that his guilty plea could affect his immigration status. Paragraph 6(h) of the guilty plea statement provided:

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.

....

Paragraph 12 of the guilty plea statement provided:

My lawyer has explained to me, and we have fully discussed, all of the above paragraphs. I understand them all. I have been given a copy of this “Statement of Defendant on Plea of Guilty.” I have no further questions to ask the judge.

Clerk's Papers (CP) at 52, 54.

¶ 4 At a plea hearing, the court informed Juan Pedro Ramos that he was giving up various constitutional rights and explained, “If you're not a citizen of the United States, you'll face deportation upon the entry of a finding of guilty.” Report of Proceedings (RP) at 3 (Jan. 21, 1997). Ramos indicated he understood.

¶ 5 Juan Pedro Ramos was 18 years old when arrested for the theft. He now testifies that he got “off to a bad start” when younger. CP at 13. Alas, he “was young and arrogant and wasn't making very good choices about what to do with [his] life.” CP at 13.

¶ 6 A week after he pled guilty in 1997, a Franklin County Superior Court sentenced Juan Pedro Ramos to 45 days in jail, and fined him $1,029.35. After he was convicted, Juan Pedro Ramos' mother stopped the green card application process out of fear that her son would be deported.

¶ 7 In January 2011, Juan Pedro Ramos contacted a lawyer to inquire about his immigration status. Ramos claims he then discovered that his conviction required he be deported. To date, United States Custom and Border Protection has not sought to deport Ramos.

¶ 8 Juan Pedro Ramos now asserts that his attorney, Rem Ryals, never inquired about his immigration status. Ramos further claims he was not informed, at the time of his plea, about certain deportation as a result of entering the guilty plea. In an affidavit, Ramos testifies his lawyer never told him that if he pled guilty to the charges that he would have no chance to remain in the United States. If he had been told of the immigration consequences, he would not have pled guilty but would have found a lawyer who would explain to him how he might avoid deportation by possibly pleading guilty to another crime. In a second affidavit, Ramos testifies that, during the court hearing when he pled guilty, he learned of a chance he would be deported. He learned of the possibility when reviewing papers with his counsel Rem Ryals before he appeared before the judge.

¶ 9 In April, Juan Ramos filed, in superior court, a motion to vacate his guilty plea. Noted veteran criminal defense attorney, James Egan, signed an affidavit swearing that attorney Ryals' practice was simply to read the immigration warnings to his clients. Rem Ryals, an experienced criminal defense attorney, is deceased.

¶ 10 Ramos supported his assertion that his conviction subjects him to mandatory deportation with an affidavit from prominent veteran immigration attorney, Thomas Roach. Roach claims Ramos is subject to mandatory deportation under 8 U.S.C. § 1101(a)(43)(M)(i), which requires immediate deportation for an “aggravated felony” which includes “[any crime involving] fraud or deceit in which the loss to the victim exceeds $10,000.” Attorney Roach does not explain how he concludes Ramos' conduct was fraudulent or deceitful, nor does he cite any case in support of this legal opinion.

¶ 11 The superior court found the motion to vacate the plea time barred and transferred it to this court for consideration as a personal restraint petition (PRP) under CrR 7.8(c)(2). While the PRP was pending, Juan Pedro Ramos filed a notice of appeal from the 1997 judgment and sentence, with an accompanying motion and affidavit for late filing of direct appeal under RAP 18.8(b). The Court of Appeals commissioner found Ramos' appeal timely because the sentencing court did not inform him of his appeal rights at the time of his plea. We consolidated Ramos' direct appeal with his personal restraint petition.

LAW AND ANALYSIS

Personal Restraint Petition—Appeal

¶ 12 A personal restraint petition and an appeal from the 1997 prosecution have both advantages and disadvantages to Juan Ramos. In an appeal, Ramos may assert the benefits afforded by Padilla since his conviction is not final, but he may not bring new evidence to this court, such as the affidavits of counsel Egan and Roach. See Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); State v. Sandoval, 171 Wash.2d 163, 168, 249 P.3d 1015 (2011). Although Juan Pedro Ramos may not bring to this court new evidence, such as the affidavits of counsel Egan and Roach, in his appeal, he may supply new evidence in his personal restraint petition. Sandoval, 171 Wash.2d at 168, 249 P.3d 1015; State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

¶ 13 Understandably, Juan Pedro Ramos wishes the best of both worlds and the advantages of and no disadvantages from both proceedings. Equally understandably, the State cries foul and asks that we analyze the appeal separate from the personal restraint petition. We grant Ramos his wish.

¶ 14 The Washington State Supreme Court has impliedly rejected the constrained approach the State urges this court to adopt. Sandoval, 171 Wash.2d at 169, 249 P.3d 1015. In Sandoval, the court explained, if a “defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition, which may be filed concurrently with the direct appeal.” Sandoval, 171 Wash.2d at 169, 249 P.3d 1015 (quoting McFarland, 127 Wash.2d at 335, 899 P.2d 1251). Therefore, this court may consider the affidavits Ramos filed and apply Padilla to Ramos' circumstances.

Ineffective Assistance of Counsel

¶ 15 The underlying and critical issue before us is whether Juan Pedro Ramos may vacate his 1997 guilty plea for first degree theft, because of his defense attorney's purported failure to warn him of the immigration consequences of his plea. To establish ineffective assistance of counsel, a defendant must satisfy a two part test (1) that his or her counsel's assistance was objectively unreasonable and (2) that as a result of counsel's deficient assistance, he or she suffered prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate the first prong—deficient performance—a reviewing court “judge[s] the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. The appellate court will presume counsel was effective. State v. Gomez Cervantes, 169 Wash.App. 428, 434, 282 P.3d 98 (2012).

¶ 16 The Sixth Amendment right to effective assistance of counsel encompasses the plea process. Sandoval, 171 Wash.2d at 169, 249 P.3d 1015 (citing In re Pers. Restraint of Riley, 122 Wash.2d 772, 780, 863 P.2d 554 (1993)); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Faulty advice of counsel may render the defendant's guilty plea involuntary or unintelligent. Sandoval, 171 Wash.2d at 169, 249 P.3d 1015 (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); McMann, 397 U.S. at 770–71, 90 S.Ct. 1441). To establish that the plea was involuntary or unintelligent due to counsel's inadequate advice, the defendant must show under the test in Strickland that his attorney's performance was objectively unreasonable and that he was prejudiced by the deficiency. Sandoval, 171 Wash.2d at 169, 249 P.3d 1015.

¶ 17 Prior to Padilla, deportation was considered to be a collateral consequence under Washington law and anything short of an affirmative misrepresentation by counsel of the plea's deportation consequences could not support a plea withdrawal. Sandoval, 171 Wash.2d at 170 n. 1, 249 P.3d 1015 (citing In re Pers. Restraints of Yim, 139 Wash.2d 581, 587–89, 989 P.2d 512 (1999)). Padilla explicitly rejected the proposition that only affirmative misadvice...