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People v. Sifuentes

Court of Appeals of Colorado, First Division

April 20, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Hector Toby Sifuentes, Defendant-Appellant.

         City and County of Denver District Court No. 11CR3951 Honorable John W. Madden IV, Judge

          Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          NAVARRO, JUDGE

          ¶ 1 Defendant, Hector Toby Sifuentes, appeals the district court's order denying his petition for postconviction relief under Crim. P. 35(c). Sifuentes claims that the court erred by concluding that he did not show prejudice from his counsel's erroneous advice about the immigration consequences of his guilty plea. To address his claim, we identify factors pertinent to the prejudice analysis in this context. Considering those factors, we agree with Sifuentes, reverse the order, and remand with directions.

         I. Factual and Procedural History

         A. Defendant's Background, the Criminal Charges, and the Ensuing Plea Agreement

         ¶ 2 Defendant was born in Mexico in 1970. He moved to the United States when he was two years of age and became a lawful permanent resident in 1988. He also has significant other ties to the United States, including four United States-citizen children, several siblings living lawfully in the country, and a disabled mother (also a lawful permanent resident) for whom he had been acting as caretaker while sharing a home in Denver. He has committed several traffic offenses and misdemeanors but no felonies prior to the charges in this case. None of his prior convictions involved distribution of drugs. Defendant has been receiving medical treatment for sclerosis of the liver, kidney stones, and class one diabetes, which has rendered him insulin dependent. He has no ties - familial or otherwise - to Mexico.

         ¶ 3 In 2011, the prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. He allegedly sold the substance to a confidential informant in a transaction that was audio- and video-recorded by police. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The plea agreement did not include sentencing concessions.

         ¶ 4 After conducting a providency hearing and accepting the guilty plea, the trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement (ICE) placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to forty-two months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation (known as removal) under federal law, along with mandatory detention throughout the ensuing deportation proceedings. See 8 U.S.C. § 1226(c)(1)(B) (2012).

         B. Postconviction Proceedings

         ¶ 5 Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel. Defendant claimed that his plea counsel failed to advise him of a clear and unavoidable immigration consequence flowing directly from his guilty plea - he would be deported automatically. Instead, his plea counsel advised him that, in light of his strong ties to this country, he might be able to remain here even after he pleaded guilty. Defendant maintained that, if he had been properly advised, he would have rejected the plea agreement and insisted on proceeding to trial.

         ¶ 6 The postconviction court held a two-day evidentiary hearing. Defendant's plea counsel testified that the risk of deportation played a central motivating role in defendant's plea deliberations. Defendant emphasized his concern over removal from the country the first time he spoke with plea counsel, and he repeated that concern every time thereafter. But the prosecution offered only a guilty plea to distribution of a schedule III controlled substance, which carried a lower sentencing range than the original charges but did not avoid the risk of deportation altogether.

         ¶ 7 Thus, before the providency hearing, plea counsel advised defendant that a guilty plea to the reduced charge created a risk of deportation but deportation would not be automatic and he would still be eligible for a sentence to probation or Comcor.[1] At the resentencing hearing, plea counsel continued to inform defendant that, even though he had been placed on an immigration detainer after his conviction, he still had a chance of staying in the United States based on his long residential history in the country and his complicated health issues. As the postconviction court found, all of this advice was erroneous.

         ¶ 8 The postconviction court also heard testimony from defendant and his sister. His sister testified that defendant's family resides in the United States and that he lacks any ties to Mexico. She also explained that defendant's medical condition likely rendered a longer prison sentence in the United States preferable to faster deportation to Mexico, where his access to medical treatment would be uncertain. Defendant reiterated his misunderstanding of the immigration consequences arising from his guilty plea (i.e., he thought he would still have a chance to remain in this country). He explained that he probably would never see his ailing mother again if he were deported. He also confirmed his sister's concerns about his own medical treatment, and he told the court: "I'll probably die out there [in Mexico], because I have no one out there, absolutely nobody. Everybody I have is right here in this courtroom today."

         ¶ 9 Finally, an immigration attorney - whom defendant's plea counsel had consulted before his plea - testified at the postconviction hearing. The immigration attorney explained that defendant's plea counsel had consulted her about immigration issues generally, but she did not offer advice to plea counsel about defendant's specific situation. The immigration attorney also testified that defendant had retained her after his guilty plea and after ICE had placed him on an immigration detainer. Although she explained that defendant had retained her shortly before his resentencing hearing, she did not testify that she advised him of the automatic deportation consequences of his conviction prior to the resentencing hearing. And the immigration attorney did not represent him at the resentencing hearing.

         ¶ 10 The postconviction court denied the petition in a written order. The court first agreed with defendant that his plea counsel had failed to properly advise him of the automatic immigration consequences of his plea: "[I]t is clear that the plea was to an aggravated felony which made the Defendant automatically deportable. Further, the plea to an aggravated felony meant that factors such as the Defendant's time living in this country, his health or his family situation would not protect him from deportation." Therefore, the court concluded that plea counsel's advice "constituted deficient representation."

         ¶ 11 According to the court, however, defendant did not suffer prejudice because "[d]ue to audio and video recordings [of the offense] there was no rational basis to believe that [he] would not be convicted at trial." As a result, the court held that, even if defendant had known of the correct immigration consequences of the guilty plea, it would not have been rational for him to reject the plea offer.

          ¶ 12 The postconviction court further concluded that, even if defendant had established prejudice from his counsel's advice, he was "not entitled to relief due to the circumstances of his providency hearing." Specifically, he had signed a written Crim. P. 11 advisement indicating, among many other points, that his guilty plea would result in deportation. And, during the colloquy with the plea court at the providency hearing, defendant indicated generally that he understood the terms of the written advisement and asked no questions.

         II. Ineffective Assistance of Counsel

         ¶ 13 Defendant contends that the district court erred in determining that his plea counsel's deficient performance did not prejudice him. We agree.

         A. General Law and Standard of Review

         ¶ 14 Criminal defendants have a right to counsel, see U.S. Const. amends. VI, XIV; see also Colo. Const. art. II, § 16, and "the right to counsel is the right to the effective assistance of counsel, " McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). This right extends to plea bargaining. People v. Corson, 2016 CO 33, ¶ 32 (citing Lafler v. Cooper, 566 U.S.__, 132 S.Ct. 1376, 1384 (2012)).

          ¶ 15 Ineffective assistance of counsel during plea bargaining may constitute an adequate ground for postconviction relief under Crim. P. 35(c). See People v. Hunt, 2016 COA 93, ¶ 12. To prevail on such a claim, a defendant must establish that (1) counsel's performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007).

         ¶ 16 A conclusion on either Strickland prong presents a mixed question of law and fact. Carmichael v. People, 206 P.3d 800, 807 (Colo. 2009). While we review a district court's factual findings with deference, we review the application of law to those findings de novo. Id. at 808. That is, we independently review the ultimate determinations on Strickland's performance and prejudice ...

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