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
Douglas K. Wilson, Colorado State Public Defender, James S.
Hardy, Deputy State Public Defender, Denver, Colorado, for
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.
Factual and Procedural History
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)
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
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. 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
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
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
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.
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 ...