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People v. Juarez

Court of Appeals of Colorado, Fourth Division

October 19, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Alfredo Juarez, Defendant-Appellant.

         City and County of Denver District Court No. 11CR1007 Honorable John W. Madden IV, Judge

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

          Douglas K. Wilson, Colorado State Public Defender, John Plimpton, Deputy State Public Defender, Denver, Colorado; Rachel C. Funez, New Castle, Colorado, for Defendant-Appellant

          OPINION

          GRAHAM JUDGE.

         ¶ 1 Defendant, Alfredo Juarez, appeals the postconviction court's order denying his Crim. P. 35(c) motion seeking to withdraw his guilty plea. We conclude that Juarez's plea counsel was not ineffective when he advised Juarez that his plea to a class 1 misdemeanor would "probably result in deportation, " and, therefore, we conclude Juarez is not entitled to withdraw his guilty plea. Accordingly, we affirm.

         I. Background

         ¶ 2 Juarez is a Mexican foreign national who has lived in Denver since he was approximately six years old. After graduating from high school, he married a United States citizen, and in 2009 he was granted lawful permanent residence status. His parents live in Denver, he has two children who are United States citizens, and he has not returned to Mexico at any time prior to his deportation at issue in this case.

         ¶ 3 In early 2011, the police were called to Juarez's residence after he got into a fight with family members. Officers were forced to tase Juarez to subdue him and, in a search incident to arrest, cocaine was found in his possession. Juarez was charged with one felony count of possession of a controlled substance and hired Mr. Tatum to represent him. At the same time, Mr. Whitehead, an immigration attorney, was also representing Juarez in an unrelated matter concerning his lawful permanent residence status.

         ¶ 4 Tatum received multiple continuances in the criminal case in an attempt to negotiate a plea with the district attorney that would not result in Juarez's deportation from the United States. Tatum understood that there was no option short of a misdemeanor for less than one ounce of marijuana that would guarantee avoidance of deportation. Ultimately, Juarez pleaded guilty to possession of a schedule V controlled substance, a class 1 misdemeanor, with a stipulated sentence of two years of drug court probation.

         ¶ 5 During Juarez's April 2012 providency hearing, Tatum informed the court as follows:

The reason this case has . . . dragged on for a long time is because [co-counsel] and I have spent a lot of time trying to figure out if there was . . . a disposition that would be . . . better for him, immigration-wise.
. . . .
Unfortunately . . . that never occurred. We have . . . at all times advised him that it is our understanding -- although we're not -- I'm not an expert in immigration law, but based on my consultation with immigration attorneys - that this plea very likely will result in either deportation or some type of exclusion from the United States.
He is a legal resident. He does have a green card. But it's fairly well known now that any drug offense other than simple possession of under an ounce of marijuana will have negative immigration consequences.[1]
. . . .
I -- I cannot tell him any stronger. You know, this is a misdemeanor under Colorado state law, but it is the equivalent of a felony under the immigration and naturalization act, and, you know, I have made him aware of that . . . .

(Emphasis added.)

         ¶ 6 The court then asked Juarez if he understood "that this plea could . . . affect your immigration status. Do you understand that?"

[Juarez]: Yeah.
The Court: Okay. And even knowing that, do you want to proceed with this disposition today?
[Juarez]: (Indistinguishable.) There's nothing I can do, you know. It was -- I don't know. This whole case just was something that should have . . . never really happened, you know. It was all due to my dumb behavior, but, you know, we tried to make it work, but we can't get it to what we have to, so we got to go with what . . . we can do now.
. . . .
The Court: Mr. Juarez, understanding all the consequences, both the immigration consequences, the potential that if you violate probation I could sentence you pursuant to what I told you . . . do ...

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