Weld County District Court No. 09CR358 Honorable Thomas J. Quammen, Judge
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
¶ 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 The district court held that it lacked jurisdiction to consider the motion because the plea had already been withdrawn pursuant to a successfully completed deferred judgment.
¶ 2 We hold that, when, as here, a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant's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.
¶ 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 (2010) (internal quotation marks omitted); see also Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1407 (2012); Strickland v. Washington, 466 U.S. 668, 686 (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; accord People v. Kazadi, 284 P.3d 70, 73 (Colo.App. 2011) (Kazadi I), aff'd, 2012 CO 73 (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; accord People v. Vicente-Sontay, 2014 COA 175, ¶ 28; 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 ...