Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 15CA1780
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Joseph G. Michaels, Senior 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
erroneous 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 Frederico Alvarado Hinojos is not
entitled to a hearing. The factual allegations in his motion
(which we must assume are true), when considered in
conjunction with the plea agreement, are insufficient to
establish justifiable excuse or excusable neglect for failing
to collaterally attack the validity of his misdemeanor
conviction within the applicable eighteen-month limitations
period. The immigration advisement contained in the plea
agreement, at a minimum, gave Alvarado Hinojos reason to
question the accuracy of his plea counsel's advice
regarding the immigration consequences of the plea. Thus,
even taking at face value the allegations in his 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
his conviction.
¶3
In the companion case we announce today, People v.
Chavez-Torres, 2019 CO 59, ___ P.3d ___, we reach the
opposite conclusion because we determine that the allegations
set forth there, when considered together with the plea
agreement and the plea hearing transcript, are sufficient to
establish justifiable excuse or excusable neglect.
Chavez-Torres alleged that his plea counsel provided him no
advice regarding the immigration consequences of the plea and
that he had no reason to question or investigate
counsel's omission. 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
referenced the immigration consequences of his plea.
¶4
The court of appeals ruled in this case that Alvarado
Hinojos's motion merited a hearing on the applicability
of the justifiable excuse or excusable neglect exception. We
disagree and therefore reverse its judgment. We remand for
further proceedings consistent with this opinion.
I.
Factual and Procedural History
¶5
Alvarado Hinojos, a citizen of Mexico, immigrated to the
United States in 1991 with his wife and two daughters.
Sixteen years later, in 2007, he pled guilty to menacing with
a deadly weapon (a class five felony) and third-degree
assault (a class one misdemeanor). The plea agreement
included the following immigration advisement:
I understand that if I am not a citizen of the United States
and I plead guilty or nolo contendere ("no
contest") to a crime, my plea may result in deportation
and/or exclusion from the United States or denial of
naturalization in the United States.
¶6
Consistent with the plea agreement, the trial court imposed a
two-year deferred judgment and sentence on the felony count
and a two-year sentence to probation on the misdemeanor
count. Alvarado Hinojos successfully completed both his
deferred judgment and his probation sentence. Therefore, in
2009, the trial court dismissed the guilty plea to the felony
count and terminated the probation sentence on the
misdemeanor count.
¶7
In July 2015, Alvarado Hinojos filed a motion for
postconviction relief in which he collaterally attacked his
third-degree assault conviction under Crim. P.
35(c).[1] Alvarado Hinojos asserted that his plea
was invalid because he received ineffective assistance from
his plea counsel. More specifically, Alvarado Hinojos alleged
that: (1) his plea counsel had advised him that his guilty
plea "would not have adverse immigration
consequences"; (2) he pled guilty based on his plea
counsel's advice; (3) he had "recently"
consulted an immigration attorney and had discovered that his
guilty plea does have immigration consequences; (4) his
guilty plea "renders him inadmissible and therefore
prevents him from remaining in the United States"; and
(5) had he not pled guilty, "he could have applied for
adjustment to" his current immigration status. Alvarado
Hinojos acknowledged that he filed his motion after the
expiration of the eighteen-month deadline in section
16-5-402(1), C.R.S. (2018), which governs collateral attacks
on the validity of misdemeanor convictions. But he maintained
that the justifiable excuse or excusable neglect exception in
subsection (2)(d) of the statute applied. Alvarado Hinojos
submitted a copy of the plea agreement with his motion. The
prosecution objected to the motion, arguing that it was
untimely and, if timely, then meritless, and that, in any
event, the trial court lacked jurisdiction.
¶8
The trial court denied Alvarado Hinojos's Rule 35(c)
motion without a hearing, ruling that it was filed after the
applicable limitations period and that the facts alleged, if
true, would not constitute justifiable excuse or excusable
neglect pursuant to subsection (2)(d). Alvarado Hinojos
appealed, and a division of the court of appeals reversed in
a split decision. People v. Alvarado Hinojos, No.
15CA1780, ¶ 25 (Colo.App. Sept. 7, 2017). The majority
reasoned that Alvarado Hinojos's factual allegations, if
true, established that he had received incorrect advice from
plea counsel, that he had no reason to question the validity
of his conviction until he learned from an immigration
attorney that he had been erroneously advised by plea
counsel, and that it would be unreasonable to expect a
defendant who receives incorrect advice to file a collateral
attack on a conviction just in case the plea results in
adverse immigration consequences. Id. at
¶¶ 18, 21-25. Therefore, concluded the majority,
Alvarado Hinojos alleged facts which, if true, "could
support a finding of justifiable excuse or excusable
neglect." Id. at ¶ 25.
¶9
In his dissent, Judge Dailey explained that he was persuaded
by the prosecution's contention that "the use of [an
ineffective-assistance-of-counsel] merits argument
to procedurally circumvent the time period
prescribed in section 16-5-402 defeats the very purpose of
section 16-5-402's time limits." Id. at
¶ 32 (Dailey, J., dissenting) (emphases added).
Alternatively, Judge Dailey observed that the immigration
advisement in the plea agreement gave Alvarado Hinojos reason
to question the accuracy of his plea counsel's advice.
Id. at ¶ 35. Thus, concluded Judge Dailey, at a
minimum, the plea agreement should have placed Alvarado
Hinojos on notice "that counsel's advice may need to
be subjected to further scrutiny" and investigation, and
that, if appropriate, a motion seeking postconviction relief
may need to be filed within the applicable limitations
period. Id.
¶10
The prosecution petitioned for certiorari review, and we
granted the petition.[2]
II.
Analysis
¶11
We start by setting forth the controlling standard of review.
We then discuss 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 examining these provisions, we
transition to 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 Alvarado Hinojos,
which we must assume are true, and conclude that, when
considered in conjunction with the plea agreement, they would
not establish justifiable excuse or excusable neglect.
Accordingly, we hold that Alvarado Hinojos is not entitled to
a hearing.
A.
Standard of Review
¶12
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).[3] Therefore, our review is de novo.
Id.
B.
Sections 16-5-402(1), (2)(d)
¶13
Section 16-5-402(1) establishes an eighteen-month limitations
period to bring a collateral attack against the validity of a
misdemeanor conviction. Subsection (2) provides four
exceptions to that time bar, one of which is relevant
here:[4]
(d) Where the court hearing the collateral attack finds that
the failure to seek relief within the applicable time period
was the result of circumstances amounting to justifiable
excuse or excusable neglect.
Alvarado
Hinojos invoked this exception, asserting justifiable excuse
or excusable neglect for filing his motion after the
limitations period expired.[5]
C.
People v. Wiedemer
¶14
In Wiedemer, we observed that a defendant who
invokes the justifiable excuse or excusable neglect exception
in subsection (2)(d) is not required to provide evidentiary
support for his allegations. 852 P.2d at 440 n.15. Instead,
his motion must allege facts which, if true, would entitle
him to relief from the time bar. Id. To determine
the applicability of this exception, the trial court has to
consider "the particular facts of [the] case,"
mindful of "the overriding concern" under the Due
Process Clause that defendants must "have a meaningful
opportunity to challenge their convictions."
Close, 180 P.3d at 1019.
¶15
We have identified a nonexhaustive list of factors that are
relevant to the justifiable excuse or excusable neglect
exception in subsection (2)(d):
• whether circumstances or outside influences prevented
a timely challenge to a conviction;
• the extent to which the defendant, having reason to
question the constitutionality of a conviction, timely
investigated its validity and took advantage of available
avenues of relief;
• whether the defendant had any previous need to
challenge a conviction and either knew it was
constitutionally infirm or had reason to question its
validity;
• whether the defendant had other means of preventing
the government's use of a conviction, so that a
postconviction ...