Boulder County District Court Nos. 06CR1847 & 07CR710. Honorable Thomas F. Mulvahill, Judge.
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Estrella Law Firm, Aaron Elinoff, Denver, Colorado, for Defendant-Appellant.
Navarro and Roy[*], JJ., concur.
[¶1] Defendant, Marcos Martinez-Huerta, appeals the trial court's summary denial of his untimely filed Crim. P. 35(c) motion for postconviction relief challenging the validity of his guilty plea.
[¶2] This case addresses whether a defendant is entitled to a hearing on the issue of justifiable excuse or excusable neglect for the untimely filing of a Crim. P. 35(c) motion, when a defendant alleges tat the untimely filing resulted from his reasonable reliance on plea counsel's affirmative, but erroneous, advice about the immigration consequences of the plea which caused defendant to neglect to pursue timely collateral relief. We conclude that such allegations are sufficient to merit a hearing on the issue of justifiable excuse or excusable neglect.
[¶3] Accordingly, we reverse the trial court's order and remand with directions to the trial court to hold a hearing on the issue of justifiable excuse or excusable neglect. If the trial court finds that justifiable excuse or excusable neglect exists for this late filing, then the court should determine the merits of Martinez-Huerta's Crim. P. 35(c) motion.
[¶4] In April 2007, Martinez-Huerta, a citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to vehicular eluding, a class five felony. At that time he also admitted to violating the terms of his deferred judgment and sentence on an unrelated 2006 felony. In July 2007, the court sentenced him in both cases to concurrent terms of probation, totaling three years, with various conditions including the service of jail time.
[¶5] In August 2013, Martinez-Huerta was placed into removal proceedings pursuant to section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as a non-citizen who, after admission, was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. 8 U.S.C. § 1227(a)(2)(A)(ii) (2012). He was ordered removed from the United States in December 2013.
[¶6] In 2014, Martinez-Huerta filed a Crim. P. 35(c) motion seeking to withdraw his guilty plea. He alleged ineffective assistance of plea counsel and asserted he had a justifiable excuse for the untimely filing because his defense attorney " assur[ed] him that a conviction would not have any immigration consequences," and thus, he was " excusably unaware" that his counsel was ineffective " until the consequences of the plea came to light." The trial court ...