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People v. Figueroa-Lemus

Court of Appeals of Colorado, First Division

January 25, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Eswin Ariel Figueroa-Lemus, Defendant-Appellant.

         Jefferson County District Court No. 12CR2874 Honorable Christie A. Bachmeyer, Judge

          Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          TAUBMAN, JUDGE

         ¶ 1 Defendant, Eswin Ariel Figueroa-Lemus, appeals the district court's order denying his Crim. P. 32(d) motion to withdraw his guilty plea. We first consider whether we have jurisdiction to consider the appeal given that the guilty plea involves a deferred judgment that is still in effect. We conclude that we do because the supreme court in Kazadi v. People, 2012 CO 73, 291 P.3d 16, expressly provided that a defendant may challenge such a plea under Crim. P. 32(d). In doing so, we decline to follow People v. Sosa, 2016 COA 92, 395 P.3d 1144. Next, we consider the merits and reject Figueroa-Lemus's argument that counsel were constitutionally ineffective for failing to advise him of the immigration consequences of his plea. Accordingly, we affirm the district court's order.

         I. Background

         ¶ 2 Figueroa-Lemus pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. The court accepted the deferred judgment and sentenced Figueroa-Lemus to two years of probation.

         ¶ 3 About five months later, Figueroa-Lemus filed a Crim. P. 32(d) motion to withdraw his guilty plea to the possession count. He argued that defense counsel (Ed Ferszt) and the immigration attorney Ferszt had him speak with (Samuel Escamilla) were constitutionally ineffective for failing to advise him of the clear immigration consequences of the plea. Specifically, he alleged that counsel failed to investigate, research, and advise him that the plea would (1) result in mandatory deportation; (2) destroy the defense of cancellation of removal; (3) result in mandatory lifetime inadmissibility to the United States; and (4) result in mandatory immigration detention without bond. He also alleged that, if he had been properly advised, it would have been rational for him to reject the plea offer because it gave him no benefit from an immigration perspective.

         ¶ 4 After an evidentiary hearing, the district court denied the motion.

         II. Jurisdiction

         ¶ 5 The People filed a motion to dismiss the appeal, arguing that we do not have jurisdiction to review the order denying the Crim. P. 32(d) motion. They contend that the order is not final and appealable because the motion challenged a deferred judgment (a non-final judgment), which had not been revoked when the court entered the order or when Figueroa-Lemus filed the notice of appeal.

         ¶ 6 Every court has the authority to decide the question of its own jurisdiction. See In re Water Rights of Elk Dance Colo., LLC, 139 P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial appellate jurisdiction over final judgments entered by a district court. See § 13-4-102(1), C.R.S. 2017; C.A.R. 1(a)(1). A final judgment is "one that ends the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to completely determine the rights of the parties involved in the proceedings." People v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009). In a criminal case, a final judgment is entered when a defendant is acquitted, has the charges dismissed, or is convicted and sentenced. See id.

         ¶ 7 A deferred judgment is not a final judgment. See People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, a deferred judgment may not be subjected to either Crim. P. 35 or direct review while it is still in effect. See Kazadi, ¶ 10, 291 P.3d at 19.

         ¶ 8 Nevertheless, a defendant may challenge a deferred judgment under Crim. P. 32(d). See id. at ¶ 10, 291 P.3d at 19-20. In Kazadi, the parties argued for the first time in the supreme court that the defendant should be allowed to pursue a Crim. P. 32(d) motion to withdraw his guilty plea. See id. at ¶ 9, 291 P.3d at 19. The supreme court agreed, concluding that the rule "allows a defendant to move for withdrawal of a guilty plea before sentence is imposed or imposition of sentence is suspended." Id. at ¶ 10, 291 P.3d at 20; cf. People v. Corrales-Castro, 2017 CO 60, ¶ 3, 395 P.3d 778, 779 (concluding that Crim. P. 32(d) did not provide a remedy for a defendant who sought to withdraw his guilty plea after he had completed the terms of the deferred judgment, the plea had been withdrawn, and the case had been dismissed because Crim. P. 32(d) requires that a plea exist in order for it to be withdrawn). The supreme court then set forth the standards applicable to a Crim. P. 32(d) motion, including the standard of appellate review. See Kazadi, ¶¶ 14-15, 291 P.3d at 21.

         ¶ 9 Like the defendant in Kazadi, Figueroa-Lemus pleaded guilty to a drug felony and stipulated to a deferred judgment on that count. The deferred judgment remains in effect, and he has not yet been sentenced on that count. Thus, we conclude that Crim. P. 32(d) provided him with a mechanism to challenge the guilty plea in the district court.

         ¶ 10 We further conclude that we may review the district court's order denying the Crim. P. 32(d) motion. It is inconceivable that the supreme court would provide a remedy in the district court without allowing appellate review of the district court's decision. See Colo. Const. art. II, § 6 (guaranteeing every person a right of access to courts of justice); Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269 U.S. 459, 472 (1926) ("Equity will not suffer a wrong without a remedy."). Indeed, Kazadi expressly overruled People v. Anderson, 703 P.2d 650 (Colo.App. 1985). See Kazadi, ¶ 20, 291 P.3d at 22-23. In Anderson, a division of this court had concluded that a deferred judgment was the equivalent of a suspension of sentence (making the Crim. P. 32(d) motion untimely) and the order denying a Crim. P. 32(d) motion was not a final, appealable order under C.A.R. 1(a)(1). See Anderson, 703 P.2d at 652.

         ¶ 11 We recognize that Figueroa-Lemus might be able to otherwise obtain appellate relief under C.A.R. 21(a)(1). However, relief under that rule is discretionary and is only available in extraordinary circumstances. Even if Figueroa-Lemus were afforded relief under that rule, it would not necessarily provide relief in other similarly situated cases.

         ¶ 12 Finally, we are cognizant that another division of this court has concluded that we do not have jurisdiction to review an order denying a Crim. P. 32(d) motion in these circumstances and has suggested that Kazadi did not discuss the appealability of such an order. See Sosa, ¶ 16, 395 P.3d at 1147. In Sosa, the division lamented that the defendant could not appeal the trial court's denial of his plea withdrawal motion, concluding that it lacked jurisdiction to hear his appeal. See id. at ¶¶ 1, 18, 395 P.3d at 1145, 1147. We decline to follow Sosa because under the holding in that case, a defendant whose potentially meritorious motion to withdraw a plea is denied by a district court would have no viable judicial ...

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