County District Court No. 12CR2874 Honorable Christie A.
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Mark
Evans, Deputy State Public Defender, Denver, Colorado, for
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.
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
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
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 ...