People v. Chavez-Torres

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 15CA1507

         Attorneys for Petitioner: Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado

         Attorneys for Respondent: The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, Colorado

         OPINION

         SAMOUR, JUSTICE

         [¶1] Is a noncitizen defendant entitled to a hearing on the timeliness of his Crim. P. 35(c) postconviction motion when he invokes the justifiable excuse or excusable neglect exception and alleges that plea counsel provided him no advice regarding the immigration consequences of his plea? The answer generally depends on the specific allegations set forth in the motion. However, when the plea agreement or the plea hearing transcript is submitted, the trial court should consider it in conjunction with the allegations advanced.

         [¶2] In this case, we hold that Israel Chavez-Torres is entitled to a hearing. The factual allegations in his motion (which we must assume are true), when considered in conjunction with the plea agreement and the plea hearing transcript, are sufficient to establish justifiable excuse or excusable neglect for failing to collaterally attack the validity of his felony conviction within the applicable three-year limitations period. Chavez-Torres alleged that he had no reason to question or investigate his plea counsel’s failure to advise him regarding the immigration consequences of his plea. Further, although he was not required to do so, Chavez-Torres submitted the plea agreement and the plea hearing transcript with his motion, and neither references the immigration consequences of his plea.

         [¶3] In the companion case we announce today, People v. Alvarado Hinojos, 2019 CO 60, __ P.3d __, we reach the opposite conclusion because we determine that the immigration advisement contained in the plea agreement, at a minimum, gave Alvarado Hinojos reason to question the accuracy of his plea counsel’s allegedly erroneous advice regarding the immigration consequences of the plea. Thus, even taking at face value the allegations in Alvarado Hinojos’s motion, he was on notice at the time of his plea that he needed to diligently investigate his counsel’s advice and, if appropriate, file a timely motion challenging the validity of the conviction.

         [¶4] The court of appeals ruled in this case that Chavez-Torres’s motion merited a hearing on the applicability of the justifiable excuse or excusable neglect exception. We agree and therefore affirm its judgment. We remand with instructions to return the case to the trial court for a hearing.

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          I. Factual and Procedural History

         [¶5] Chavez-Torres was born in Mexico. He immigrated to the United States with his mother and three sisters in 1991 when he was thirteen years old. In August 1996, while in high school, Chavez-Torres pled guilty to first-degree criminal trespass (a class 5 felony). He received a sentence to probation, which he completed successfully. In 2013, seventeen years after his conviction, the United States Department of Homeland Security ("DHS") notified Chavez-Torres that it had initiated removal proceedings against him based on his conviction. Chavez-Torres promptly consulted an immigration attorney who advised him that his conviction made him ineligible for cancellation of removal proceedings. The immigration attorney thus opined that plea counsel may have provided Chavez-Torres ineffective assistance by failing to provide an advisement about the immigration consequences of the plea.

         [¶6] In May 2015, based on the advice from his immigration attorney, Chavez-Torres sought postconviction relief by filing a motion pursuant to Crim. P. 35(c) attacking the validity of his conviction. Chavez-Torres asserted that his plea counsel had provided him ineffective assistance by failing to advise him of the immigration consequences of his plea, even though she was aware of his immigration status. He acknowledged that his motion was untimely, as it was not filed within the applicable three-year limitations period in section 16-5-402(1), C.R.S. (2018). But he argued that the untimeliness resulted from circumstances constituting justifiable excuse or excusable neglect because he had no reason to question the effectiveness of his plea counsel’s assistance— and, correspondingly, the constitutional validity of his conviction— until he was informed that DHS had initiated removal proceedings against him. He contended that when he learned his conviction prevented him from remaining in the United States, he realized that his plea counsel may have provided him ineffective assistance and that his conviction may be constitutionally infirm.

         [¶7] Although the prosecution did not respond to Chavez-Torres’s motion, the trial court summarily denied it as untimely. It found that the motion was filed beyond the three-year limitations period in section 16-5-402(1), that the facts alleged were insufficient to trigger the justifiable excuse or excusable neglect exception set forth in section 16-5-402(2)(d), and that granting the requested relief would greatly prejudice the prosecution’s case given the lengthy passage of time since the conviction. The trial court reasoned that the decision in People v. Martinez-Huerta, 2015 COA 69, 363 P.3d 754, foreclosed a hearing to determine the applicability of the justifiable excuse or excusable neglect exception to the statutory time bar. In Martinez-Huerta, the court of appeals held that the defendant’s allegation that he accepted the prosecution’s plea offer based on his plea counsel’s "affirmative, but erroneous" advice regarding the immigration consequences of the plea entitled him to a hearing to determine whether there were circumstances amounting to justifiable excuse or excusable neglect for failing to file a timely Rule 35(c) motion. Id. at ¶ 2, 363 P.3d at 755. Because Chavez-Torres’s claim was based on his plea counsel’s failure to advise him regarding the immigration consequences of his plea, not on his plea counsel’s erroneous advice regarding such consequences, the trial court ruled that Chavez-Torres was not entitled to a hearing as a matter of law.

         [¶8] Chavez-Torres appealed, and a division of the court of appeals reversed. The division read Martinez-Huerta differently than the trial court and concluded that Chavez-Torres had asserted facts which, if true, would establish justifiable excuse or excusable neglect for failing to bring his Rule 35(c) motion within three years of the date of his conviction. The division also agreed with Chavez-Torres’s argument that there was no support in the record for the trial court’s determination that the prosecution would suffer great prejudice if the relief requested were granted. Therefore, the division concluded that Chavez-Torres is entitled to a hearing to determine the applicability of the justifiable excuse or excusable neglect exception to the three-year time bar.

         [¶9] The prosecution then petitioned for certiorari

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review, and we granted the ...