People v. Sifuentes

COLORADO COURT OF APPEALS 2017COA48

Court of Appeals No. 13CA2318
City and County of Denver District Court No. 11CR3951
Honorable John W. Madden IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hector Toby Sifuentes,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE NAVARRO
Taubman, J., concurs
Graham, J., dissents

Announced April 20, 2017

Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Hector Toby Sifuentes, appeals the district court’s

order denying his petition for postconviction relief under Crim. P.

35(c). Sifuentes claims that the court erred by concluding that he

did not show prejudice from his counsel’s erroneous advice about

the immigration consequences of his guilty plea. To address his

claim, we identify factors pertinent to the prejudice analysis in this

context. Considering those factors, we agree with Sifuentes, reverse

the order, and remand with directions.

I. Factual and Procedural History

A. Defendant’s Background, the Criminal Charges, and the
Ensuing Plea Agreement

¶2 Defendant was born in Mexico in 1970. He moved to the

United States when he was two years of age and became a lawful

permanent resident in 1988. He also has significant other ties to

the United States, including four United States-citizen children,

several siblings living lawfully in the country, and a disabled mother

(also a lawful permanent resident) for whom he had been acting as

caretaker while sharing a home in Denver. He has committed

several traffic offenses and misdemeanors but no felonies prior to

the charges in this case. None of his prior convictions involved

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 distribution of drugs. Defendant has been receiving medical

treatment for sclerosis of the liver, kidney stones, and class one

diabetes, which has rendered him insulin dependent. He has no

ties — familial or otherwise — to Mexico.

¶3 In 2011, the prosecution charged defendant with distributing

and conspiring to distribute a controlled substance, class three

felonies. He allegedly sold the substance to a confidential informant

in a transaction that was audio- and video-recorded by police.

Defendant later pleaded guilty to an added count of distribution of a

schedule III controlled substance as a class four felony, in exchange

for dismissal of the original charges. The plea agreement did not

include sentencing concessions.

¶4 After conducting a providency hearing and accepting the guilty

plea, the trial court sentenced defendant to Community Corrections

(Comcor) for five years. Comcor, however, rejected defendant when

Immigration and Customs Enforcement (ICE) placed him on an

immigration detainer following his conviction. The trial court

therefore resentenced defendant to forty-two months in prison

followed by three years of mandatory parole. Unbeknownst to

defendant and defense counsel, the conviction triggered automatic

2
 mandatory deportation (known as removal) under federal law, along

with mandatory detention throughout the ensuing deportation

proceedings. See 8 U.S.C. § 1226(c)(1)(B) (2012).

B. Postconviction Proceedings

¶5 Defendant filed a Crim. P. 35(c) petition for postconviction

relief seeking to withdraw his guilty plea on the ground of ineffective

assistance of his plea counsel. Defendant claimed that his plea

counsel failed to advise him of a clear and unavoidable immigration

consequence flowing directly from his guilty plea — he would be

deported automatically. Instead, his plea counsel advised him that,

in light of his strong ties to this country, he might be able to remain

here even after he pleaded guilty. Defendant maintained that, if he

had been properly advised, he would have rejected the plea

agreement and insisted on proceeding to trial.

¶6 The postconviction court held a two-day evidentiary hearing.

Defendant’s plea counsel testified that the risk of deportation

played a central motivating role in defendant’s plea deliberations.

Defendant emphasized his concern over removal from the country

the first time he spoke with plea counsel, and he repeated that

concern every time thereafter. But the prosecution offered only a

3
 guilty plea to distribution of a schedule III controlled substance,

which carried a lower sentencing range than the original charges

but did not avoid the risk of deportation altogether.

¶7 Thus, before the providency hearing, plea counsel advised

defendant that a guilty plea to the reduced charge created a risk of

deportation but deportation would not be automatic and he would

still be eligible for a sentence to probation or Comcor.1 At the

resentencing hearing, plea counsel continued to inform defendant

that, even though he had been placed on an immigration detainer

after his conviction, he still had a chance of staying in the United

States based on his long residential history in the country and his

complicated health issues. As the postconviction court found, all of

this advice was erroneous.

¶8 The postconviction court also heard testimony from defendant

and his sister. His sister testified that defendant’s family resides in

the United States and that he lacks any ties to Mexico. She also

explained that defendant’s medical condition likely rendered a

1 Based on plea counsel’s testimony, the postconviction court found
that, during plea negotiations, counsel had advised defendant that
immigration authorities would consider his lawful permanent
resident status, his length of time in this country, and his family
and health concerns when deciding whether to deport him.

4
 longer prison sentence in the United States preferable to faster

deportation to Mexico, where his access to medical treatment would

be uncertain. Defendant reiterated his misunderstanding of the

immigration consequences arising from his guilty plea (i.e., he

thought he would still have a chance to remain in this country). He

explained that he probably would never see his ailing mother again

if he were deported. He also confirmed his sister’s concerns about

his own medical treatment, and he told the court: “I’ll probably die

out there [in Mexico], because I have no one out there, absolutely

nobody. Everybody I have is right here in this courtroom today.”

¶9 Finally, an immigration attorney — whom defendant’s plea

counsel had consulted before his plea — testified at the

postconviction hearing. The immigration attorney explained that

defendant’s plea counsel had consulted her about immigration

issues generally, but she did not offer advice to plea counsel about

defendant’s specific situation. The immigration attorney also

testified that defendant had retained her after his guilty plea and

after ICE had placed him on an immigration detainer. Although she

explained that defendant had retained her shortly before his

resentencing hearing, she did not testify that she advised him of the

5
 automatic deportation consequences of his conviction prior to the

resentencing hearing. And the immigration attorney did not

represent him at the resentencing hearing.

¶ 10 The postconviction court denied the petition in a written order.

The court first agreed with defendant that his plea counsel had

failed to properly advise him of the automatic immigration

consequences of his plea: “[I]t is clear that the plea was to an

aggravated felony which made the Defendant automatically

deportable. Further, the plea to an aggravated felony meant that

factors such as the Defendant’s time living in this country, his

health or his family situation would not protect him from

deportation.” Therefore, the court concluded that plea counsel’s

advice “constituted deficient representation.”

¶ 11 According to the court, however, defendant did not suffer

prejudice because “[d]ue to audio and video recordings [of the

offense] there was no rational basis to believe that [he] would not be

convicted at trial.” As a result, the court held that, even if

defendant had known of the correct immigration consequences of

the guilty plea, it would not have been rational for him to reject the

plea offer.

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¶ 12 The postconviction court further concluded that, even if

defendant had established prejudice from his counsel’s advice, he

was “not entitled to relief due to the circumstances of his

providency hearing.” Specifically, he had signed a written

Crim. P. 11 advisement indicating, among many other points, that

his guilty plea would result in deportation. And, during the

colloquy with the plea court at the providency hearing, defendant

indicated generally that he understood the terms of the written

advisement and asked no questions.

II. Ineffective Assistance of Counsel

¶ 13 Defendant contends that the district court erred in

determining that his plea counsel’s deficient performance did not

prejudice him. We agree.

A. General Law and Standard of Review

¶ 14 Criminal defendants have a right to counsel, see U.S. Const.

amends. VI, XIV; see also Colo. Const. art. II, § 16, and “the right to

counsel is the right to the effective assistance of counsel,” McMann

v. Richardson, 397 U.S. 759, 771 n.14 (1970). This right extends to

plea bargaining. People v. Corson, 2016 CO 33, ¶ 32 (citing Lafler v.

Cooper, 566 U.S. __, 132 S. Ct. 1376, 1384 (2012)).

7
¶ 15 Ineffective assistance of counsel during plea bargaining may

constitute an adequate ground for postconviction relief under Crim.

P. 35(c). See People v. Hunt, 2016 COA 93, ¶ 12. To prevail on

such a claim, a defendant must establish that (1) counsel’s

performance fell below the level of reasonably competent assistance

demanded of attorneys in criminal cases, and (2) the deficient

performance prejudiced the defendant. Strickland v. Washington,

466 U.S. 668, 687 (1984); accord Dunlap v. People, 173 P.3d 1054,

1062-63 (Colo. 2007).

¶ 16 A conclusion on either Strickland prong presents a mixed

question of law and fact. Carmichael v. People, 206 P.3d 800, 807

(Colo. 2009). While we review a district court’s factual findings with

deference, we review the application of law to those findings de

novo. Id. at 808. That is, we independently review the ultimate

determinations on Strickland’s performance and prejudice prongs.

People v. Brown, 250 P.3d 679, 681 (Colo. App. 2010); see also

People v. Newmiller, 2014 COA 84, ¶ 18.

8
 B. Analysis

1. Deficient Performance

¶ 17 Although neither party challenges the postconviction court’s

conclusion that defendant satisfied the first Strickland prong, we

explain that the law and the record support the court’s decision.

¶ 18 The offense to which defendant pleaded guilty qualified as an

“aggravated felony” under federal immigration law. See 8 U.S.C.

§ 1101(a)(43)(B) (2012) (“The term ‘aggravated felony’ [includes]

illicit trafficking in a controlled substance.”). As such, the

conviction not only subjected defendant to mandatory deportation

(preceded by an immigration detainer) but also precluded the

opportunity for him to defend against his removal through an

immigration proceeding. See 8 U.S.C. § 1229b(a)(3) (2012). A

lawful permanent resident may ordinarily offer a defense to

deportation through a proceeding known as “cancellation of

removal.” Id. This proceeding, however, is not available where the

defendant is convicted, as here, of an “aggravated felony.” Id.

¶ 19 Yet plea counsel advised defendant that remaining in this

country would still be possible even after his guilty plea. Because

counsel’s advice ran counter to succinct, clear, and explicit

9
 requirements of immigration law, counsel’s advice was deficient.

See Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010); see also

United States v. Rodriguez-Vega, 797 F.3d 781, 785-88 (9th Cir.

2015) (holding that, where deportation is virtually certain as a

consequence of the guilty plea, advising the defendant of the mere

potential for deportation is deficient performance); Hernandez v.

United States, 778 F.3d 1230, 1233-34 (11th Cir. 2015) (same). We

move, therefore, to the second Strickland prong — prejudice from

the deficient performance.

2. Prejudice

¶ 20 In the context of a guilty plea, the prejudice prong requires the

defendant to “show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985); see also Corson, ¶ 34. “Reasonable probability” means a

probability sufficient to undermine confidence in the outcome and

is a standard “somewhat lower” than a preponderance of the

evidence. Strickland, 466 U.S. at 694; see also Carmichael, 206

P.3d at 806-07. The standard presents an objective inquiry that

asks not whether the defendant likely would have been acquitted at

10
 trial but whether counsel’s conduct affected the outcome of the plea

process. Corson, ¶ 35; People v. Pozo, 746 P.2d 523, 529 n.8 (Colo.

1987). Some objective evidence must corroborate the defendant’s

testimony that he would have made a different decision about the

plea if he had been properly advised. Carmichael, 206 P.3d at 807.

In the end, the defendant “must convince the court that a decision

to reject the plea bargain would have been rational under the

circumstances.” Padilla, 559 U.S. at 372.

¶ 21 Various factors should inform a court’s analysis of whether a

decision to reject the guilty plea would have been rational. First, a

court should consider the strength of the prosecution’s case. See,

e.g., People v. Morones-Quinonez, 2015 COA 161, ¶ 13; State v.

Tejeiro, 345 P.3d 1074, 1083 (N.M. Ct. App. 2014). Second, the

attractiveness of the plea deal and the risks of going to trial should

be analyzed. See Carmichael, 206 P.3d at 806 (recognizing that the

comparative sentencing exposure between standing trial and

accepting a plea offer may be important to the decision whether to

plead guilty).

¶ 22 Third — in the case of a noncitizen defendant who wishes to

remain in the United States — a court must take into account the

11
 defendant’s ties to this country as judged against the defendant’s

ties to another country. See Morones-Quinonez, ¶ 13; People v.

Kazadi, 284 P.3d 70, 74 (Colo. App. 2011), aff’d, 2012 CO 73; see

also Lee v. United States, 825 F.3d 311, 316 (6th Cir.), cert. granted

580 U.S. __, 137 S. Ct. 614 (2016); DeBartolo v. United States, 790

F.3d 775, 779-80 (7th Cir. 2015); United States v. Orocio, 645 F.3d

630, 644-45 (3d Cir. 2011), abrogated on other grounds by Chaidez

v. United States, 568 U.S. ___, 133 S. Ct. 1103 (2013); Sasonov v.

United States, 575 F. Supp. 2d 626, 636-38 (D. N.J. 2008); Sial v.

State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2012); Padilla v.

Commonwealth, 381 S.W.3d 322, 329-30 (Ky. Ct. App. 2013);

People v. Picca, 947 N.Y.S.2d 120, 129-31 (N.Y. App. Div. 2012);

State v. Sandoval, 249 P.3d 1015, 1021-22 (Wash. 2011); cf.

Padilla, 559 U.S. at 368 (recognizing that preserving a noncitizen’s

right to remain in this country may be more important than any

potential jail sentence).

a. The Postconviction Court’s Reasoning

¶ 23 We address initially the postconviction court’s view that

defendant was not entitled to relief “even if [he] had established

both prongs of the Strickland test” because he was properly advised

12
 by the written Rule 11 advisement. We disagree because, where a

defendant meets the two-prong test set forth in Strickland, the

defendant succeeds on a claim of ineffective assistance of counsel

and must be allowed to withdraw his plea. See, e.g., Carmichael,

206 P.3d at 807; Pozo, 746 P.2d at 527 n.5.

¶ 24 The postconviction court believed that People v. DiGuglielmo,

33 P.3d 1248 (Colo. App. 2001), dictates a different result. But the

DiGuglielmo division recognized that Strickland governed the

defendant’s claim that his plea counsel had provided ineffective

assistance by advising him that he would receive a deferred

judgment (he was later sentenced to probation instead). Id. at

1251. The division concluded that “because both the written Crim.

P. 11 advisement form and the trial court at the providency hearing

specifically addressed the issue of a deferred judgment,” and the

defendant did not ask clarifying questions, he could not succeed on

his ineffective assistance claim. Id.

¶ 25 As we understand the case, the DiGuglielmo division decided

that the defendant could not show prejudice from his counsel’s

advice because the plea court had correctly advised him of the

specific plea consequence that his counsel had allegedly failed to

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 mention. See also United States v. Kayode, 777 F.3d 719, 728-29

(5th Cir. 2014) (recognizing that, while judicial admonishments

during a plea colloquy have no bearing on the first Strickland prong,

they may be relevant under the second prong to assess prejudice).

In other words, the defendant could not show prejudice because he

actually knew of the true consequences of his plea.

¶ 26 Those are not the facts of this case. Although the written

Rule 11 advisement mentioned deportation as a consequence of the

guilty plea, the plea court did not. (Nor did the court recognize on

the record that defendant was not a citizen.) Indeed, the

DiGuglielmo division distinguished its decision from another case on

that very basis. See 33 P.3d at 1252 (“Rael is distinguishable

because there is no indication in that opinion whether the trial

court had advised the defendant there about the issue that was the

focus of his claim of misrepresentation.”). Furthermore, the

supreme court’s subsequent Carmichael decision illustrates that “a

proper advisement by the district court does not preclude, as a

matter of law, a finding of prejudice based on counsel’s specific,

erroneous advice.” Morones-Quinonez, ¶ 21 (discussing Carmichael,

206 P.3d at 807-09). This principle is “particularly apt in the

14
 immigration context, where a general advisement about the

possibility of adverse immigration consequences may not be

sufficient to dispel a specific promise or misrepresentation by

counsel.” Id. at ¶ 22; State v. Favela, 311 P.3d 1213, 1222 (N.M.

Ct. App. 2013) (recognizing that even a court’s unequivocal warning

may be insufficient to cure prejudice from counsel’s deficient

performance because that warning alone does not ensure that the

defendant received effective assistance in evaluating such an

advisement). And defendant here “does not contend that []he had

questions or concerns, or that []he was confused at the providency

hearing, based on irreconcilable advisements from [his] counsel and

the court, which is the situation addressed in DiGuglielmo.”

Morones-Quinonez, ¶ 24. Instead, he contends that he relied on his

counsel’s specific, erroneous advice when he pleaded guilty. Id.

¶ 27 Finally, unlike in DiGuglielmo, the premise of the

postconviction court’s analysis here was that defendant did not

know of the automatic deportation consequence of his plea,

15
 regardless of the written advisement.2 Hence, the postconviction

court focused on what he would have done if he had known.

¶ 28 The postconviction court also cited People v. Chavez, 7 P.3d

1047 (Colo. App. 1999), to support its view that defendant could not

obtain relief even if he satisfied both prongs of Strickland. Because

Chavez does not concern an ineffective assistance of counsel claim,

however, it sheds no light here. Consistent with our conclusion

that Chavez and DiGuglielmo are inapposite, the People do not rely

on those cases (or the written Rule 11 advisement) on appeal.

2 The dissent takes a different view, concluding that defendant
actually knew of the true consequences of his plea. The dissent
cites defendant’s prior criminal acts. Because those prior acts did
not result in immigration consequences, however, they could not
have made him aware of the immigration consequence of the guilty
plea here. On the contrary, those earlier experiences gave him
reason to believe his plea counsel’s erroneous advice that his new
conviction would not guarantee deportation either. Further, while
defendant retained an immigration attorney after his plea and
before his resentencing, neither that attorney nor defendant
testified that she had advised him of the automatic deportation
consequence of his plea before the resentencing hearing. And the
record shows that both his plea counsel and the sentencing court
(on whom defendant could be expected to rely) seemed to believe
that avoiding deportation was still possible. It is not surprising,
therefore, that he did not move to withdraw his plea before or at the
resentencing hearing. Regardless, the relevant question is what
defendant knew at the time of his plea, not at the resentencing
hearing.

16
¶ 29 We turn therefore to the postconviction court’s discussion of

what defendant would have done if he had known of the automatic

deportation consequence of his guilty plea. Defendant claimed that

he would have rejected the plea deal and gone to trial if he had been

properly advised. The postconviction court deemed his contention

“not to be credible.” Although framed as a credibility finding, the

court’s conclusion mirrors the ultimate determination of whether

defendant showed Strickland prejudice in the guilty-plea context.

As explained, such a determination is a legal conclusion that we

review de novo. See Carmichael, 206 P.3d at 807; Brown, 250 P.3d

at 681; see also Chhabra v. United States, 720 F.3d 395, 406 (2d

Cir. 2013) (“The district court’s findings as to basic, primary, or

historical fact are subject to the clearly erroneous standard of

review; the court’s ultimate rulings as to Strickland’s components,

and its ultimate decision as to whether counsel’s performance

violated the defendant’s Sixth Amendment rights, are reviewed de

novo.”) (citations omitted).

¶ 30 Of course, where a district court’s prejudice determination

depends heavily on the court’s credibility findings or its resolution

of factual disputes, we would give the court’s findings substantial

17
 deference. Here, however, the postconviction court did not base its

denial of defendant’s claim on conflicting testimony, defendant’s

demeanor, a reputation for mendacity, or any other traditional

credibility factor. On the contrary, the court credited defendant’s

testimony as to the historical facts — e.g., what he told his plea

counsel (he wanted to avoid deportation if possible) and what

counsel told him (deportation was not automatic under the plea

deal). In denying defendant’s prejudice claim nonetheless, the court

relied entirely on its view that rejecting the plea would not have

been rational even accepting defendant’s account of the facts.

Because this conclusion is intertwined with the ultimate question of

prejudice, we naturally review it de novo.

¶ 31 The postconviction court concluded that defendant’s rejecting

the plea agreement and going to trial would not have been a

rational decision because acquittal at trial was very unlikely given

the recordings of the alleged drug transaction, his failure to identify

a viable defense, and the prosecution’s refusal to offer an

immigrant-friendly plea deal. The court thus assumed that

defendant would be convicted and deported in any event and,

therefore, he faced only a decision between two to eight years in

18
 prison (under the plea deal) and four to sixteen years in prison (if

convicted at trial).3

¶ 32 The postconviction court weighed some of the factors relevant

to the prejudice inquiry. But the court’s analysis did not go far

enough.

¶ 33 Neither the strength of the prosecution’s case nor the

difference in the sentencing ranges between the plea deal and a

conviction at trial are necessarily dispositive when a defendant

faces immigration consequences. Morones-Quinonez, ¶ 13; see

Orocio, 645 F.3d at 643 (noting that likely acquittal at trial is not

the “sine qua non of prejudice”). As explained, a court must

consider all relevant factors — especially the defendant’s ties to the

United States and the resulting severity of deportation — before

reaching a conclusion about prejudice. See Morones-Quinonez,

¶ 13; see also Lee, 825 F.3d at 316 (“[A] claimant’s ties to the

United States should be taken into account in evaluating, alongside

the legal merits, whether counsel’s bad advice caused prejudice.”);

Gonzalez v. United States, 722 F.3d 118, 132 (2d Cir. 2013) (“[T]he

3The record does not reveal, however, whether defendant was
advised of the sentences he faced if convicted of the original charges
at trial.

19
 court should, before reaching a conclusion as to prejudice, take into

account all relevant factors.”). Although “the strength of the State’s

case may be considered as part of a larger analysis of prejudice,”

the postconviction court’s “almost exclusive reliance on the strength

of the State’s case and the benefits of the plea was improper[.]”

Tejeiro, 345 P.3d at 1083.

¶ 34 We thus discern error in the postconviction court’s legal

analysis, and we now consider defendant’s claim in light of all

relevant factors.

b. Balancing All Relevant Factors

¶ 35 We first take heed of the Colorado Supreme Court’s

recognition that “when an alien defendant enters a guilty plea based

on erroneous representations as to deportation consequences, he or

she will in most cases be permitted to withdraw the plea.” Pozo,

746 P.2d at 527 n.5. We also recognize that, in compliance with

Carmichael, defendant here presented some objective corroborating

evidence of his prejudice claim (e.g., his plea counsel’s testimony

confirming defendant’s concerns about deportation and her

erroneous advice about deportation). See 206 P.3d at 807; see also

Hernandez, 778 F.3d at 1233-34 (recognizing that plea counsel’s

20
 statement corroborated defendant’s allegations of ineffective

assistance).

¶ 36 Next, we agree with the postconviction court that the

prosecution’s case against defendant appeared to be strong. How

strong, however, is not clear. The confidential informant who

allegedly bought the drugs from defendant did not testify at the

postconviction hearing. Nor did any other prosecution witness

testify. Although the record indicates that audio and video

recordings of the alleged sale exist, neither recording was admitted

into evidence or described in detail through the testimony at the

postconviction hearing.4 Hence, the admitted evidence does not

reveal precisely how incriminating (or ambiguous) the recordings

may be. Other documents in the record briefly describe the

recordings, but they were not admitted into evidence at the hearing

either. Even if we may consider such documents, they suggest that,

4 Defendant’s plea counsel testified that, according to her memory,
the recordings captured the incident and persuaded her that this
case would be difficult to defend. She did not, however, provide any
details of what the recordings depicted. And, although defendant
initially agreed with the postconviction court’s statement that the
recordings showed him committing the crime, he later clarified that
his belief was based solely on what others had told him about the
recordings. He had never seen them. Beyond this brief exchange,
he did not admit his guilt.

21
 while the audio recording contains some statements implicating

defendant, the video recording does not actually depict a drug sale.

¶ 37 Because we recognize, however, that the prosecution did not

bear the burden of proof at the hearing, we accept for our analysis

that the prosecution’s case was formidable. But we cannot

conclude on this record that a conviction would have been “the sure

thing that the government claims.” DeBartolo, 790 F.3d at 779.5

Moreover, while the apparent existence of a likely trial defense may

strengthen a defendant’s prejudice showing, establishing such a

defense is not absolutely required in cases involving counsel’s

failure to accurately advise the defendant of the immigration

consequences of a guilty plea. People v. Deltoro, 31 N.E.3d 389, 394

(Ill. App. Ct. 2015); see Zemene v. Clarke, 768 S.E.2d 684, 691 (Va.

2015) (holding that, in advancing a claim of prejudice due to

defense counsel’s failure to advise of the immigration consequences

5 Defendant’s plea counsel admitted that she did little to investigate
possible defenses at trial. She did not, for instance, seek to learn
the identity of the confidential informant. Cf. People v. McKeel, 246
P.3d 638, 642 (Colo. 2010) (recognizing that work as a confidential
informant and prior drug use are among the “potentially unsavory
details” about a witness that a jury may be entitled to hear). These
circumstances further complicate the analysis of the strength of the
prosecution’s case.

22
 when entering a plea agreement, the defendant “need not

demonstrate a likelihood of acquittal at trial”). In sum, the strength

of the evidence against defendant is not as probative of rationality

as it would be in a nonimmigration case. Morones-Quinonez, ¶ 15.

¶ 38 Turning to the attractiveness of the plea deal, we first observe

that the deal did not give defendant what he repeatedly said he

wanted — a chance to stay in this country. Instead, the guilty plea

guaranteed his automatic deportation. Thus, although the evidence

against defendant was compelling, “[t]he threat of removal

provide[d] [a] powerful incentive to go to trial [where] a plea would

result in removal anyway.” Id. at ¶ 13 (quoting Orocio, 645 F.3d at

645); see Keserovic v. State, 345 P.3d 1024, 1030 (Idaho Ct. App.

2015) (Given the defendant’s “asserted desire to avoid deportation”

and the virtual certainty of deportation if he pleaded guilty, “it may

well have been in [his] better interests to take his chances at trial”

even “accepting as true the State’s assertion that the evidence of

[his] guilt was overwhelming.”); see also Sasonov, 575 F. Supp. 2d

at 637; United States v. Purpura, No. 1:CR-94-171-01, 2012 WL

716149, at *2-3 (M.D. Pa. Mar. 5, 2012) (unpublished opinion);

23
 Padilla, 381 S.W.3d at 329; Picca, 947 N.Y.S.2d at 130-31;

Sandoval, 249 P.3d at 1022.

¶ 39 Moreover, the downside of going to trial was not immense,

which is to say that the upside of the plea deal was hardly

irresistible even assuming defendant probably would have been

convicted at trial. True, the plea deal offered a more favorable

sentencing range, two to eight years in prison versus four to sixteen

years if he were convicted at trial. But this difference is modest

when compared to the large disparities analyzed in other cases.

See, e.g., Orocio, 645 F.3d at 634 (comparing a plea deal offering

credit for time served and two years of supervised release with a

trial conviction carrying a minimum ten-year prison sentence);

Sandoval, 249 P.3d at 1021-22 (considering a plea deal of 6 to 12

months as opposed to a trial conviction carrying a minimum

sentence of 6½ to 8½ years and a maximum of life in prison); cf.

Carmichael, 206 P.3d at 807 (considering the “large disparity

between the sentence exposure as represented to Carmichael by

[defense counsel] and the actual exposure Carmichael faced by

going to trial”).

24
¶ 40 In addition, mitigating factors (such as the absence of prior

felonies and his serious health problems) could lead defendant to

reasonably believe that a sentence at the higher end of the

sentencing range and consecutive sentences were not likely if he

went to trial. (Recall that defendant originally received a Comcor

sentence and then a lower-range prison sentence after he pleaded

guilty.) In fact, the postconviction court — which had also been the

sentencing court — never mentioned consecutive sentences as a

realistic possibility at trial, nor did the prosecutor. Because

consecutive sentences were not mandatory, and because the

sentencing ranges overlapped, defendant could possibly have

received the same sentence after conviction at trial as he would

have received after pleading guilty.

¶ 41 In any event, preserving the right to stay in the United States

“may be more important to the [defendant] than any potential jail

sentence.” Padilla, 559 U.S. at 368. This is especially true where,

as here, the defendant is a lawful permanent resident facing

permanent banishment from a country he has lived in since he was

a toddler. See Orocio, 645 F.3d at 645 (“[Defendant] rationally

could have been more concerned about a near-certainty of multiple

25
 decades of banishment from the United States than the possibility

of a single decade in prison.”). In addition, unrebutted evidence at

the postconviction hearing revealed that defendant’s serious health

problems (which require daily insulin treatment) might make a

longer prison sentence, where some medical treatment would likely

be available, preferable to earlier deportation to a place where his

ability to secure treatment is uncertain. Cf. DeBartolo, 790 F.3d at

779-80 (The defendant “might even have preferred a lengthy prison

term in the United States to a shorter prison term that would lead

more quickly to deportation, because the lengthy prison term would

at least keep him in the same country as his family, facilitating

frequent visits by family members, which is important to

prisoners.”).

¶ 42 Finally, the unrebutted evidence established defendant’s tight

connection to the United States. He has lived here for over forty

years, virtually his entire life. Defendant’s family, including his

children and ailing mother, live here too. He has no apparent ties

to Mexico. Therefore, removal from the United States would be “the

equivalent of banishment or exile” from his family and long-time

26
 home. Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947);

Sandoval, 249 P.3d at 1022.

¶ 43 With all this in mind, we must decide not “whether a decision

to reject a plea of guilty was the best choice, but only whether it

[was] a rational one.” Picca, 947 N.Y.S.2d at 130 (discussing Padilla

standard). For the reasons discussed above, we conclude that

rejecting the guilty plea offer and going to trial would have been a

rational decision for defendant here. Id. (recognizing that the

relevant question is whether taking “a chance, however slim, of

being acquitted after trial would have been rational”); see People v.

Chavez-Torres, 2016 COA 169M, ¶ 32 (“Chavez-Torres alleged in his

postconviction motion that rejecting the plea offer would have been

rational under the circumstances because his entire immediate

family lived in the United States and he had no family in, or

connections to, Mexico. These unrebutted allegations sufficiently

assert Strickland prejudice.”).

¶ 44 Although the People rely on People v. Campos-Corona, 2013

COA 23, the facts of that case were quite different. There, the

district court found that the defendant had desired only to avoid

prison time under the plea agreement, not to avoid deportation. Id.

27
 at ¶ 15. Because his plea “advanced that goal,” the court found

that he would not have changed his plea even if he had known he

would be deported. Id. In contrast, the postconviction court here

recognized that securing a chance to stay in this country was

important to defendant. And, to the extent a chance to receive a

Comcor sentence was also important to him, the guilty plea did not

advance that goal either. Contrary to his counsel’s advice, his plea

subjected him to an immigration detainer that caused Comcor to

reject him and resulted in his resentencing to prison.

¶ 45 Because defendant has established a reasonable probability

that his plea counsel’s deficient performance affected the outcome

of the plea process, he must be allowed to withdraw his guilty plea.

See Hill, 474 U.S. at 59; Pozo, 746 P.2d at 529 n.8.

III. Conclusion and Remand Directions

¶ 46 We reverse the order denying defendant relief under Crim. P.

35(c), and we remand to the district court with directions to grant

defendant’s petition. In conjunction with that relief, the court shall

vacate defendant’s conviction, permit him to withdraw his guilty

plea, and reinstate the original charges against him.

JUDGE TAUBMAN concurs.

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JUDGE GRAHAM dissents.

29
 JUDGE GRAHAM, dissenting.

¶ 47 In my view, the majority opinion has misapplied and expanded

the prejudice test announced in Strickland v. Washington, 466 U.S.

668, 687 (1984), and applied in Dunlap v. People, 173 P.3d 1054,

1062-63 (Colo. 2007). I also disagree that the record before us

shows prejudice to defendant as a result of his counsel’s warning to

him that his guilty plea would create the risk, but not the certainty,

of deportation.

¶ 48 I agree that effective counsel “must advise her client regarding

the risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 367

(2010). I also agree that where counsel provides “false assurance

that his conviction would not result in his removal from this

country,” the defendant has been given ineffective assistance. Id. at

368. That is not what happened here.

¶ 49 Defendant’s counsel told him that the prosecutor was

intractable in her position that defendant would not be offered a

plea that was “immigration safe.” She warned him that there was

“a likelihood of deportation, although not a certainty.” The risk of

deportation was explained to defendant. Padilla made clear that

“[t]o satisfy [counsel’s] responsibility, we now hold that counsel

30
 must inform her client whether his plea carries a risk of

deportation.” Id. at 374. Measured against Padilla’s standard, it is

not certain that counsel’s advice to defendant fell below the wide

standard of competence demanded by Strickland. But I am willing

to assume, as the trial court found, that defendant’s counsel gave

him erroneous advice by telling him there was a chance he could

avoid deportation.

¶ 50 Where I part company with the majority is in the evaluation of

prejudice to defendant. The record demonstrates to me that

defendant knew the true potential consequences of his plea, not, as

the majority supposes, because of his past criminal record, but

because his counsel advised him that there was no assurance he

would not be deported. And, importantly, he acknowledged in

writing that he would be deported if he pleaded guilty to a felony.

¶ 51 Defendant is an admitted heroin dealer who is no stranger to

the criminal justice system. He has committed numerous prior

criminal acts and has failed to appear in court when charged.

Against this background, in August, 2011, a confidential informant

advised the Denver Police Department Gang Bureau that defendant

was attempting to sell heroin. Surveillance by the police, including

31
 electronic video and audio equipment, observed and heard

defendant attempting to sell and selling heroin. This evidence was

detailed in an arrest affidavit and made available to counsel in

discovery.

¶ 52 In April, 2012, defendant entered a plea of guilty to a felony

distribution charge in exchange for the prosecutor dropping a

charge of conspiracy and a charge of distribution. Those charges

carry potential penalties far more severe than the felony

distribution charge to which defendant pleaded guilty. Before the

trial court would accept the plea, as part of his Crim. P. 11

advisement, defendant read and executed a petition to enter plea of

guilty and plea agreement which represented to the court that

defendant could speak, read, and understand the English language,

or that all of the documents and proceedings had been fully

explained to him in a language he could understand. He

represented that he had consulted with his lawyer and that he

recognized the potential penalty for each offense with which he was

originally charged carried a maximum penalty of sixteen years. He

also agreed to the factual basis for his charged crimes. And most

importantly, he initialed paragraph 14, which represented that he

32
 understood a plea of guilty would “result in my being deported, . . .

excluded from admission to the United States, and my being

refused U.S. citizenship.” (Emphasis added.) In presenting that

petition to the district court, defendant did not seek clarification,

notwithstanding the court’s inquiry, “Is there anything more that

you want me to know or anything more you want me to

consider . . . ?” Defendant was then sentenced to Community

Corrections.

¶ 53 Soon after that plea, Immigration and Customs Enforcement

placed a hold on defendant which resulted in his disqualification

from Community Corrections. Defendant very quickly retained

immigration counsel, but did not seek to withdraw his plea. See

People v. Pozo, 746 P.2d 523, 527 (Colo. 1987) (where erroneous

advice is given to an immigrant subject to deportation, he will likely

be able to withdraw his plea).

¶ 54 This factual backdrop leads me to conclude that defendant

cannot show that, but for his counsel’s advice, he would not have

known the true consequences of his plea. People v. DiGuglielmo, 33

P.3d 1248 (Colo. App. 2001), is instructive. There, the defendant,

who was sentenced to probation, argued that his plea of guilty was

33
 not knowing and voluntary because he was led to believe that he

would receive a deferred sentence. The division recognized that

counsel’s promise of a sentence to be imposed might indeed

constitute ineffective assistance of counsel. But, where the

defendant had received a written Crim. P. 11 advisement form that

specifically addressed the sentence, he could not claim

misrepresentation as a ground for ineffective assistance. Id. at

1251. “At the providency hearing, defendant had an affirmative

obligation to request clarification from the court if his

understanding of the plea agreement was different from the

information contained in the written plea documents and the trial

court’s colloquy with him.” Id.

¶ 55 The majority distinguishes DiGuglielmo by noting that the trial

court specifically addressed the sentence in addition to the written

Rule 11 advisement. I am aware of no case that requires a verbal

explanation of a written Rule 11 advisement. A written advisement

alone is a sufficient basis for requiring a defendant to seek

clarification. This is particularly apparent where, like here, counsel

advised defendant of the risk. If defendant was laboring under a

belief that his length of stay in the United States would be favorably

34
 considered by the immigration authorities, that belief was certainly

disabused by the written document he read and signed. And too,

like in DiGuglielmo, the defendant never alleged “that his counsel’s

misrepresentation was deliberate.” Id. at 1252.

¶ 56 The majority claims that People v. Rael, 681 P.2d 530 (Colo.

App. 1984), was distinguished by DiGuglielmo in such a way as to

add emphasis to the importance of the court’s verbal explanation

during the Rule 11 advisement. I can find nothing in Rael to

support that assumption. Rael relied upon the fact that counsel

had stated that he “knew that the court would not

aggravate/increase the maximum sentence.” 681 P.2d at 532.

There was no need to address the prejudice prong of Strickland in

Rael because the division in Rael ordered a hearing on the basis of

a deliberate misrepresentation. Here there was no deliberate

misrepresentation and any confusion caused by counsel’s

statements of hope were unquestionably clarified by a written

advisement to defendant that his plea would result in his

deportation. Nor am I persuaded by the conclusion in People v.

Chavez-Torres, 2016 COA 169M, that the defendant in that case

was entitled to a hearing (as was the defendant here) when he

35
 alleged sufficient excusable neglect to warrant a late filing of a

postconviction motion by asserting that he had received erroneous

immigration advice.

¶ 57 This case bears no resemblance to Chavez-Torres. Defendant

here received an accurate Rule 11 advisement that he would be

deported. Yet he did not seek to clarify that advice. It is unrealistic

to conclude that a noncitizen who was concerned enough about his

immigration status to question whether his plea would result in

deportation but did not seek to clarify a proper Rule 11 advisement

telling him that deportation was a certainty has shown the kind of

material prejudice sufficient and grave enough to undermine the

confidence in his plea. None of the cases cited by the majority

stands for the proposition that a proper written advisement

acknowledged and signed by a defendant should be disregarded

simply because the defendant is a noncitizen. Where a defendant

who is fluent in English, as is the case here, tells the judge that he

understands the matters set forth in the written Rule 11

advisement that he has personally signed, it makes little sense for

the sentencing judge to verbally go over each detail in the

advisement. See People v. Laurson, 70 P.3d 564, 566 (Colo. App.

36
 2002) (“When a defendant indicates at the providency hearing that

he or she understood the matters contained in a written guilty plea

advisement form, the burden of proof is on the defendant to show

that the apparent waiver was not effective.”).

¶ 58 There are further reasons for concluding that defendant has

not shown prejudice. The majority reasons that it would have been

preferable for defendant to receive a long prison sentence than to be

deported. I disagree that any defendant, immigrant or otherwise,

would prefer the prospect of two consecutive sixteen-year sentences

to a four- or five-year sentence. Defendant was forty-one years of

age at the time of his sentencing. His purported preference for

potential consecutive sentences of up to thirty-two years at the age

of forty-one to the sentence he received (even with deportation) is

not credible. It is true that he had medical issues resulting from

his abuse of drugs and alcohol. He has sclerosis of the liver. He is

diabetic and so he must take insulin. Nothing in the record

suggests that he cannot receive medication or treatment for these

maladies outside the United States and that it would have been a

preferable choice to draw a lengthy prison term just so he could

37
 have the services of a prison doctor. He was certainly coping

physically before he decided to sell heroin.

¶ 59 The majority opinion seeks to weigh factors it finds relevant to

a showing of prejudice, relying on what it deems to be the

persuasive authority of cases in foreign jurisdictions. I am

unwilling to rely on that authority. My conclusion is reached

recognizing that no Colorado case gives such an expansive

treatment of Strickland’s prejudice prong.

¶ 60 Defendant has admitted his guilt. The documentary evidence

which forms the basis for his arrest warrant shows that a finding of

guilt on the original charges is all but assured. His physical

conditions are treatable in Mexico and elsewhere; he does not deny

otherwise. He is not terminally ill. Admittedly, his ties to this

country are strong and he has family members here. One would

expect nothing else in the case of a long-term resident. However, I

am unaware of any Colorado case that requires an exception to

deportation on the basis of close ties to Colorado. He is not a

United States citizen and, based upon his felony charge, it is

unlikely that he will ever become one, even after remand.

38
¶ 61 Consequently, I am left to conclude that the district court was

correct in deciding, after an evidentiary hearing, that defendant

failed to satisfy the prejudice prong of Strickland. I would affirm.

39