Denied July 19, 2018.
County District Court No. 12CR2874 Honorable Christie A.
[Copyrighted Material Omitted]
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). 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 Figueroa-Lemus appealed the district court's order
denying the Crim. P. 32(d) motion. The People filed a motion
to dismiss the appeal, arguing that we do not have
jurisdiction to review that order. 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 Initially, we announced an opinion based, in part, on a
case that had been previously published by a division of this
court, People v. Sosa, 2016 COA 92W, 395 P.3d 1144.
We did not discover that Sosa had been withdrawn
(due to a reporting error on Westlaw) until the People filed
a petition for rehearing. We then withdrew our original
opinion and ordered Figueroa-Lemus to respond to the
arguments set forth in the People's petition for
rehearing. Having reviewed the People's motion to
dismiss, the briefs, the People's petition for rehearing,
and the response, we issue the following
7 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.
8 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.
9 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.
10 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.
11 We further conclude that we may review the district
court's order denying the Crim. P. 32(d) motion. It is
unlikely 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, 46 S.Ct. 166, 70 L.Ed.
357 (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.
12 In reaching this conclusion, we reject the People's
argument that C.A.R. 21(a)(1) provides a defendant with a
viable remedy for appellate review when the plea involves a
deferred judgment. First, relief under that rule is
discretionary and is only available in extraordinary
circumstances. Indeed, as shown in the protocols section of
the supreme court's website, granting review of a C.A.R.
21 petition "rarely occurs." For example, in 2015,
only 15 of the 242 petitions filed resulted in the issuance
of an order to show cause. See Colo. Judicial
Branch, Protocols of the Colorado Supreme Court,
https://perma.cc/7MCL-QVNU. Second, contrary to the
People's contention that "the state constitutional
right to appellate review is satisfied by discretionary
review," the supreme court has held that the certiorari
review process cannot adequately afford a defendant a right
of appellate review on the merits. Bovard v. People,
99 P.3d 585, 592-93 (Colo. 2004). We also reject the
People's implication that relying on article II, section
6 of the Colorado Constitution would be improper because that
provision does not concern the scope or substance of any
remedy afforded to a defendant. We agree that the provision
does not guarantee the scope or substance of any remedy. But
it does require a review on the merits— a review that
is not assured by the certiorari review process. Allison
v. Indus. Claim Appeals Office, 884 P.2d 1113, 1120
13 Third, if appellate review of the denial of a Crim. P.
32(d) motion was contingent upon the revocation of the
deferred judgment, review would be time barred if it was
revoked more than forty-nine days after the order had been
entered. See C.A.R. 4(b)(1) (requiring that a notice
of appeal in a criminal case be filed within forty-nine days
after the entry of the order appealed from); Estep v.
People,753 P.2d 1241, 1246 ...