This Opinion is subject to revision upon final publication.
Weld County District Court No. 10CR1525. Honorable Timothy G. Kerns, Judge.
John W. Suthers, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Law Office of Victor T. Owens, Victor T. Owens, Parker, Colorado, for Defendant-Appellant.
[¶1] Defendant, Antonio Israel Vicente-Sontay, appeals the denial after a hearing of his Crim. P. 35(c) petition. We conclude that the postconviction court did not err in denying Vicente-Sontay's claims that plea counsel was constitutionally ineffective in (1) not investigating or otherwise pursuing an evidence suppression issue arising under the Immigration Reform and Control Act of 1986 (IRCA); (2) not advising him that his guilty plea would render him ineligible for cancellation of removal; and (3) not obtaining a K'iche interpreter. We further conclude that the postconviction court did not err in concluding that Vicente-Sontay spoke and understood Spanish sufficiently to enter a knowing, voluntary, and intelligent plea. Accordingly, we affirm.
[¶2] Vicente-Sontay, an undocumented noncitizen of the United States, completed a federal I-9 employment-eligibility verification form and began work for a company in Greeley, Colorado (employer). On his verification form, he used a Social Security card and Missouri identification card, claiming to be a United States citizen named Marco Antonio Perez.
[¶3] Thereafter, an agent from the Department of Homeland Security, Homeland Security Investigations (HSI) conducted an I-9 audit and inspected employer's employment verification forms to ensure that its employees were authorized to work in the United States. In the course of this audit, the agent confirmed an outstanding Florida warrant for tax fraud against Marco Antonio Perez and notified the Greeley police of this warrant. Believing that they were arresting Perez on the warrant, the police then arrested Vicente-Sontay. Vicente-Sontay was advised of and waived his Miranda rights, and he told the police that his real name was
Antonio Israel Vicente-Sontay, not Marco Antonio Perez, and that he had purchased a fraudulent Social Security card and Missouri identification card for $150.
[¶4] Vicente-Sontay was booked into county jail, his father posted his bond, and he was ultimately charged with identity theft and criminal impersonation. Thereafter, while represented by counsel, he pleaded guilty to criminal impersonation and was sentenced to an agreed upon term of two years of supervised probation, with no additional incarceration. He subsequently violated the terms and conditions of this probation, however, so his probation was revoked and he was sentenced to a one-year term of imprisonment.
[¶5] Throughout the entirety of the foregoing proceedings, including numerous court appearances, Vicente-Sontay was assisted by Spanish interpreters and never expressed any concern, or gave any reason for concern, regarding his ability to understand the proceedings. Nor did any of the interpreters indicate any difficulty in communicating with him.
[¶6] After his release from prison, Vicente-Sontay was transferred to the custody of Immigration and Customs Enforcement. He then filed a petition for postconviction relief pursuant to Crim. P. 35(c). In this petition, he alleged that his plea counsel was constitutionally ineffective in (1) failing to file a motion to suppress the I-9 form and related documentation pursuant to the IRCA, 8 U.S.C. § 1324a(b)(5) (2012); (2) failing to advise him that a criminal impersonation conviction is a crime involving moral turpitude (CIMT) resulting in mandatory deportation and statutory loss of eligibility for cancellation of removal; and (3) failing to inquire about his native language and to obtain a K'iche interpreter for him. He also asserted that the lack of a K'iche interpreter raised " real doubt" as to whether his plea was knowing and voluntary.
[¶7] The postconviction court conducted a five-day evidentiary hearing on the Crim. P. 35(c) petition and heard from nine witnesses. As pertinent here, on the suppression issue, plea counsel testified that she did not do any research on section 1324a or regarding I-9 forms. She did, however, consider a suppression issue relating to the statements that Vicente-Sontay had made after his arrest. Counsel advised Vicente-Sontay regarding this suppression issue but told him that if they pursued the issue, he could possibly be detained because federal agents would likely testify at any suppression hearing, thus turning their attention back to him. He chose not to pursue the issue.
[¶8] On the immigration advisement issue, an immigration expert testified that there was no doubt that criminal impersonation was a CIMT and would have barred Vicente-Sontay from obtaining relief or defending against his removal or deportation. Plea counsel, however, testified that she had consulted a different immigration expert and that this expert had told her that there was a split among immigration judges in Denver regarding whether criminal impersonation was a CIMT. The expert's response to counsel's inquiry further noted, however, that criminal impersonation was likely a CIMT, and the expert later testified that he should have said that immigration judges had split on whether the criminal impersonation statute was a divisible statute, such that certain violations of that statute would be CIMTs and others would not.
[¶9] Based on her expert's response to her inquiry, counsel advised Vicente-Sontay, before he pleaded guilty, that he should operate or work off of the assumption that his plea would make him deportable and inadmissible. Counsel did not, however, specifically advise him that a plea would result in his loss of eligibility for discretionary relief, such as cancellation of removal. Vicente-Sontay then chose to plead guilty, and it was counsel's impression that he did so because he wanted to eliminate his father's obligations on the bond.
[¶10] On the K'iche interpreter issue, a linguistics expert testified that Vicente-Sontay is a native speaker of K'iche from a particular area of Guatemala and that he understood only about twenty-five percent of the Spanish-translated court documents that he had received. Two of Vicente-Sontay's probation officers and an HSI agent, however, all of whom were proficient in Spanish,
testified that they had no difficulty communicating with Vicente-Sontay in Spanish and no concerns regarding his ability to understand them. Likewise, plea counsel testified that her Spanish interpreter did not indicate to her that the interpreter was having difficulty translating for Vicente-Sontay.
[¶11] After the hearing, the postconviction court issued a remarkably thorough thirty-six page, single-spaced order denying Vicente-Sontay's Crim. P. 35(c) petition. As pertinent here, the court concluded that plea counsel was not ineffective in not filing a motion to suppress under the IRCA because (1) such a motion would not have resulted in the suppression of the salient confession evidence against Vicente-Sontay and (2) Vicente-Sontay's position regarding the stronger suppression issue about which counsel had advised him showed that he would have pleaded guilty even had he been advised of the possible IRCA suppression issue.
[¶12] The court further concluded that plea counsel was not ineffective with respect to her advice regarding the immigration consequences of Vicente-Sontay's plea because (1) those consequences were ambiguous, if not outright uncertain, and thus not truly clear, and counsel's advice was therefore adequate under prevailing law; and (2) the record revealed that Vicente-Sontay would have pleaded guilty even had he been advised regarding the long-term potential for discretionary relief.
[¶13] Finally, the court found that Vicente-Sontay spoke Spanish sufficiently to engage in meaningful communications with his plea counsel and to navigate the judicial system. Accordingly, the court concluded that plea counsel was not ineffective in not obtaining a K'iche interpreter for Vicente-Sontay and that Vicente-Sontay's plea was knowing, voluntary, and intelligent.
[¶14] Vicente-Sontay now appeals.