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
Douglas K. Wilson, Colorado State Public Defender, John
Plimpton, Deputy State Public Defender, Denver, Colorado;
Rachel C. Funez, New Castle, Colorado, for
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
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
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
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
. . . .
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 . . . .
6 The court then asked Juarez if he understood "that
this plea could . . . affect your immigration status. Do you
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 ...