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People v. Figueroa-Lemus

Court of Appeals of Colorado, First Division

April 19, 2018

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Eswin Ariel FIGUEROA-LEMUS, Defendant-Appellant.

         Rehearing Denied July 19, 2018.

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

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[Copyrighted Material Omitted]

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          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). 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.

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          ¶ 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.

         ¶ 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 opinion.[1]

         II. Jurisdiction

         ¶ 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

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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, 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 (Colo. 1994).

         ¶ 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 ...

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