Weld County District Court No. 96CR576 Honorable Harlan R. Bockman, Judge.
John W. Suthers, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony M. Noble, Denver, Colorado, for Defendant-Appellant
JUDGE ROTHENBERG [*]
¶ 1 Defendant, Jose Sabino Espino-Paez, appeals the district court's denial of his motion for post-conviction relief pursuant to Crim. P. 35(c) and Crim. P. 32(d). We affirm the order denying relief under Crim. P. 35(c), and we dismiss that portion of the appeal challenging the order denying relief under Crim. P. 32(d).
¶ 2 In August 1996, defendant pleaded guilty to the use of a schedule II controlled substance and received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. When he successfully completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice.
¶ 3 Defendant is a Mexican citizen, and in September 2011, he sought permanent residency in the United States. His request was denied because the immigration authorities concluded that, despite his successful completion of the deferred judgment, his withdrawn plea in a Colorado state court constituted the "conviction" of a felony under federal immigration law. See Pinho v. Gonzales, 432 F.3d 193, 198-99, 205-07 (3d Cir. 2005) (under federal immigration law, pleas that are withdrawn after a deferment period for rehabilitation are "convictions").
¶ 4 In 2012, defendant filed a postconviction motion seeking to withdraw his 1996 plea pursuant to Crim. P. 35(c) and Crim. P. 32(d). He alleged that his counsel in the criminal case was ineffective by failing to advise him that his guilty plea to a drug-related offense would make him ineligible for permanent residency and subject to deportation. The district court denied his motion without a hearing.
II. Crim. P. 35(c) Motion
¶ 5 Defendant first contends the district court erred in summarily denying his Crim. P. 35(c) motion. We disagree.
¶ 6 We review the summary denial of a Crim. P. 35(c) postconviction motion de novo. People v. Davis, 2012 COA 14, ¶ 6.
¶ 7 In Kazadi v. People, 2012 CO 73, ¶¶ 9-10, 18-22, the Colorado Supreme Court held that a deferred judgment is not reviewable under Crim. P. 35(c) unless it is revoked and a judgment is entered. See People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008) ("A deferred judgment . . . may not be subject to either Crim. P. 35 review or direct appellate review until revoked."); see also § 18-1.3-102(2), C.R.S. 2014; Crumb v. People, 230 P.3d 726, 730 (Colo. 2010). The holding of Kazadi is fatal to defendant's appeal from the denial of his Crim. P. 35(c) motion.
III. Crim. P. 32(d) Motion
¶ 8 Defendant next contends that the district court abused its discretion in failing to consider his Crim. P. 32(d) motion to withdraw his guilty plea, and he requests that the case be remanded for that purpose. We conclude the district court lacked jurisdiction to take further action on his Crim. P. 32(d) motion.
¶ 9 Normally we review the denial of a Crim. P. 32(d) motion for an abuse of discretion. People v. Martinez, 188 Colo. 169, 172, 533 P.2d 926, 928 (1975). An abuse of discretion may occur if the district court misconstrues or misapplies the applicable law in ...