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People v. Chavez-Torres

Court of Appeals of Colorado, First Division

November 17, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Israel Chavez-Torres, Defendant-Appellant.

          Weld County District Court No. 96CR819 Honorable Carol Glowinsky, Judge

          Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, Colorado, for Defendant-Appellant

          OPINION

          DUNN, JUDGE

          ¶ 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.

         I. Background

         ¶ 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 infirm.

         ¶ 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 excusable neglect."

          II. 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 ...


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