People v. Hinojos

          Rehearing Denied July 29, 2019

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          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.

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         [¶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, 442 P.3d 843, 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

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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, 2017 WL 3912757 (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.

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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 ...