County District Court No. 96CR819 Honorable Carol Glowinsky,
Cynthia H. Coffman, Attorney General, Carmen Moraleda,
Assistant Attorney General, Denver, Colorado, for
Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson,
Lakewood, Colorado, for Defendant-Appellant
1 In People v. Martinez-Huerta, 2015 COA 69, ¶
18, a division of this court concluded that a defendant's
allegation that he pleaded guilty based upon his
counsel's "affirmative and erroneous" advice
regarding the immigration consequences of such a plea
warranted a hearing to determine whether the defendant could
establish justifiable excuse or excusable neglect for his
late postconviction motion.
2 Relying on that case, the district court here summarily
denied the untimely Crim. P. 35(c) motion of defendant,
Israel Chavez-Torres, concluding as a matter of law that
Martinez-Huerta foreclosed a hearing to determine
whether Chavez-Torres' allegations, if true, would
establish justifiable excuse or excusable neglect.
3 Because we do not read Martinez-Huerta the same
way, and because we further conclude that Chavez-Torres
alleged facts that, if true, would establish justifiable
excuse or excusable neglect, we reverse and remand the case
for further proceedings.
4 Chavez-Torres is a citizen of Mexico who came to the United
States with his family when he was a child. While in high
school, Chavez-Torres pleaded guilty to first degree criminal
trespass. The trial court sentenced him to probation, which
he successfully completed.
5 Seventeen years after his criminal trespass conviction, the
United States Department of Homeland Security initiated
removal proceedings, alleging that Chavez-Torres was not
legally present in the United States and had been convicted
of a crime involving moral turpitude.
6 Chavez-Torres consulted with an immigration attorney who
advised him that because of his conviction, he was not
eligible for cancellation of removal from the United States.
The immigration attorney also advised him that his plea
counsel may have been ineffective in not advising him of the
immigration consequences of his guilty plea.
7 Chavez-Torres moved for postconviction relief from his
criminal trespass conviction under Crim. P. 35(c). He alleged
that, despite the fact that he had informed plea counsel that
he was not a citizen of the United States, counsel had
advised him to accept the plea agreement without telling him
that the guilty plea carried a risk of adverse immigration
consequences. He claimed that, had plea counsel properly
advised him of this risk, he would have rejected the plea
offer and insisted on going to trial. As a result, he
asserted that his plea and conviction were constitutionally
8 Chavez-Torres acknowledged that his postconviction motion
was untimely. But he alleged that the untimeliness resulted
from circumstances amounting to justifiable excuse or
excusable neglect because he had no reason to question the
constitutional validity of his criminal trespass conviction
until the initiation of the removal proceedings. It was only
then, he alleged, that he learned his trespass conviction
prevented him from remaining in the United States and that
his plea counsel may have rendered ineffective assistance.
9 The district court summarily denied Chavez-Torres'
motion. It found that (1) the motion was filed beyond the
three-year deadline for postconviction challenges; (2) given
the passage of time, "the prejudice to the state's
case would be great"; and (3) Chavez-Torres had failed
to assert facts "amounting to justifiable excuse or
Justifiable Excuse or Excusable Neglect
10 Chavez-Torres contends that the district court erred in
summarily denying his postconviction motion based on the
statutory time bar because (1) he asserted facts that, if
true, would establish justifiable excuse or excusable
neglect; and (2) the finding that the State would ...