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.
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 review, and we
granted the petition.[1]
II.
Analysis
¶10
We begin by articulating the controlling standard of review.
We then examine the time bar in section 16-5-402(1) and the
justifiable excuse or excusable neglect exception in section
16-5-402(2)(d). After reviewing these provisions, we pivot to
discuss our decision in People v. Wiedemer, where we
interpreted the subsection (2)(d) exception. 852 P.2d 424,
440-42 (Colo. 1993). We end by applying Wiedemer to
the facts alleged by Chavez-Torres, which we must assume are
true, and conclude that, when considered in conjunction with
the plea agreement and the plea hearing transcript, they
would establish justifiable excuse or excusable neglect.
Accordingly, we hold that Chavez-Torres is entitled to a
hearing.
A.
Standard of Review
¶11
Whether the facts alleged, if true, would constitute
justifiable excuse or excusable neglect pursuant to section
16-5-402(2)(d) so as to entitle the defendant to a hearing is
a question of law. Close v. People, 180 P.3d 1015,
1019 (Colo. 2008).[2] Therefore, our review is de novo.
Id.
B.
Sections ...