Filed
Washington State
Court of Appeals
Division Two
May 9, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint No. 46673-2-II
Petition of
JOSE ISIDRO-SOTO,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — In his personal restraint petition (PRP), Jose Isidro-Soto collaterally
challenges his 2004 guilty plea conviction for second degree assault with a deadly weapon
enhancement. Isidro-Soto seeks to withdraw this plea because his defense counsel failed to
accurately advise him about the deportation consequences of pleading guilty. We grant Isidro-
Soto’s PRP and remand to the superior court with instructions that Isidro-Soto be allowed to
withdraw his plea.
FACTS
A. Background
Isidro-Soto was born in and is a citizen of Mexico. Isidro-Soto first entered the United
States as a child in 1993, and he became a permanent legal resident of the United States on July
1, 2004. On August 17, the State charged Isidro-Soto with one count of second degree assault
with a deadly weapon,1 one count of second degree unlawful possession of a firearm,2 and one
1
Former RCW 9A.36.021(1)(c) (2003).
2
Former RCW 9.41.040(2)(a) (2003).
No. 46673-2-II
count of felony harassment.3 In exchange for a guilty plea to one count of second degree assault
with a deadly weapon enhancement, the prosecutor offered to dismiss the second degree
unlawful possession of a firearm and felony harassment charges.
Isidro-Soto pleaded guilty on October 4. Isidro-Soto signed a Statement on Plea of
Guilty that contained a boilerplate warning stating that a guilty plea may affect a noncitizen’s
immigration status. Isidro-Soto was sentenced to 16 months of imprisonment.
B. Procedure
After Isidro-Soto served his sentence, the Supreme Court of the United States decided
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla, the
Supreme Court held that a constitutionally competent defense attorney must advise a client
facing criminal charges about the risk of deportation. 559 U.S. at 367. Additionally, Padilla
explicitly rejected the proposition that only affirmative misadvice about deportation
consequences of a plea, and not the failure to give such advice, could constitute ineffective
assistance of counsel. 559 U.S. at 369-73.
In January 2014, Isidro-Soto received notice that the United States immigration court
would begin deportation proceedings against him. On August 4, Isidro-Soto filed a motion to
withdraw his guilty plea and vacate his conviction under CrR 4.2 and CrR 7.8, alleging that he
received ineffective assistance of counsel because defense counsel failed to advise him of the
deportation consequences of the State’s plea offer, as required in Padilla. Isidro-Soto stated that
he would not have pleaded guilty if he knew that he would be subject to deportation. The
superior court transferred Isidro-Soto’s motion to us for consideration as a PRP after determining
3
Former RCW 9A.46.020(1), (2)(b) (2003).
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No. 46673-2-II
that Isidro-Soto’s motion was time-barred and that he failed to make a substantial showing that
he was entitled to relief.
While Isidro-Soto’s PRP was pending in this court, the Washington Supreme Court
decided In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015). In Yung-
Cheng Tsai, the Washington Supreme Court held that Padilla effected a significant, material,
retroactive change in Washington law. 183 Wn.2d at 107-08. Accordingly, the Washington
Supreme Court held that a petitioner could collaterally attack his judgment over one year after
the judgment became final if Padilla was material to his conviction. 183 Wn.2d at 107-08. We
then ordered the State to provide a supplemental response addressing the merits of Isidro-Soto’s
PRP in light of Yung-Cheng Tsai. In its briefing, the State conceded that Isidro-Soto’s PRP was
not time-barred and that Isidro-Soto was entitled to an evidentiary hearing on the merits of his
PRP.
We remanded Isidro-Soto’s PRP to the superior court for an evidentiary hearing.
Following the evidentiary hearing, the superior court entered findings of fact. The superior court
found:
. . . The defendant’s attorney testified that he did not misadvise the defendant that
if he went to trial and were convicted, he would be deported, but if he entered a
plea of not guilty, he would not be deported. The court finds that this testimony is
credible.
. . . The defendant’s attorney testified that he “may not have advised” the defendant
of the immigration consequences of his conviction. The court finds that this
testimony is credible.
. . . The defendant’s attorney testified that he did not research whether a criminal
conviction would make the defendant deportable, and did not consult with an
immigration attorney in this case. The court finds that this testimony is credible.
. . . The defendant’s attorney testified “it’s possible” that he never advised the
defendant that by pleading guilty he would be facing certain deportation. The court
finds that this testimony is credible.
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No. 46673-2-II
Clerk’s Papers (CP) at 3.
ANALYSIS
In his PRP, Isidro-Soto seeks to withdraw his guilty plea because his defense counsel was
ineffective for failing to accurately advise him about the deportation consequences of pleading
guilty. The State argues that Isidro-Soto cannot show that he was unaware of the immigration
consequences of his plea and therefore cannot show that his counsel was ineffective. We agree
with Isidro-Soto. Accordingly, we grant Isidro-Soto’s PRP and remand to the superior court.
The petitioner in a PRP must first prove error by a preponderance of the evidence. In re
Pers. Restraint of Crow, 187 Wn. App. 414, 420-21, 349 P.3d 902 (2015). Then, if the petitioner
is able to show error, he must also prove prejudice, the degree of which depends on the type of
error shown. 187 Wn. App. at 421.
To obtain relief, the petitioner must show either constitutional or nonconstitutional error.
In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). If the error is
constitutional, the petitioner must demonstrate that it resulted in actual and substantial prejudice.
154 Wn.2d at 409. “[I]f a personal restraint petitioner makes a successful ineffective assistance
of counsel claim, he has necessarily met his burden to show actual and substantial prejudice.” In
re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
If the petitioner fails to make a prima facie showing of either actual or substantial
prejudice, we deny the PRP. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872
(2013). If the petitioner makes such a showing, but the record is not sufficient to determine the
merits, we remand for a reference hearing. 177 Wn.2d at 18. But if we are convinced that the
petitioner has proven actual and substantial prejudice, we grant the PRP. 177 Wn.2d at 18.
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No. 46673-2-II
We review ineffective assistance of counsel claims de novo. State v. Brown, 159 Wn.
App. 366, 370, 245 P.3d 776, review denied, 171 Wn.2d 1025. (2011). Because of deportation’s
“close connection” to the criminal process, advice about deportation consequences falls within
“the ambit of the Sixth Amendment right to counsel.” Padilla, 559 U.S. at 366. The Sixth
Amendment right to effective assistance of counsel includes the plea process. State v. Sandoval,
171 Wn.2d 163, 169, 249 P.3d 1015 (2011). Counsel’s faulty advice may render a petitioner’s
guilty plea involuntary or unintelligent. 171 Wn.2d at 169. To establish that his guilty plea was
involuntary or unintelligent due to counsel’s inadequate advice, a petitioner must show that his
attorney’s performance was deficient and that he was prejudiced by that deficiency. 171 Wn.2d
at 169.
I. DEFICIENT PERFORMANCE
Isidro-Soto argues that defense counsel’s failure to accurately advise him of the
deportation consequences of pleading guilty to second degree assault was deficient because
second degree assault is a clearly deportable offense. We agree.
Padilla explicitly rejected the proposition that only affirmative misadvice about
deportation consequences of a plea, and not the failure to give such advice, could constitute
ineffective assistance of counsel. 559 U.S. at 369-73. Because “[i]mmigration law can be
complex,” we must consider the applicable immigration laws in determining whether defense
counsel’s advice about deportation consequences was deficient. 559 U.S. at 369. “[T]he precise
advice required depends on the clarity of the law.” Sandoval, 171 Wn.2d at 170. If it is “truly
clear” from the applicable immigration laws that an offense is deportable, defense counsel must
correctly advise the defendant that pleading guilty to that particular charge would lead to
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No. 46673-2-II
deportation. Padilla, 559 U.S. at 369. If the law “is not succinct and straightforward,” defense
counsel must provide only a general warning that “pending criminal charges may carry a risk of
adverse immigration consequences.” 559 U.S. at 369. Additionally, “[w]here an attorney
unreasonably fails to research or apply relevant statutes without any tactical purpose, that
attorney’s performance is constitutionally deficient.” Yung-Cheng Tsai, 183 Wn.2d at 102.
The Immigration and Nationality Act of 2008, codified in Title 8 of the United States
Code, sets forth a number of grounds upon which a noncitizen may be deported. Under 8 U.S.C.
§ 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1101(a)(43)(F) defines “aggravated felony” as “a crime of
violence . . . for which the term of imprisonment [is] at least one year.” A crime of violence
includes:
an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or . . . any other offense
that is a felony and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing
the offense.
18 U.S.C. § 16.
Here, the State offered to dismiss multiple charges if Isidro-Soto pleaded guilty to one
count of second degree assault with a deadly weapon enhancement. Under RCW
9A.36.021(2)(b), second degree assault is a felony. RCW 9A.36.021 does not define the term
“assault.” See State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). Instead, Washington
courts recognize three common law definitions of assault: “(1) an unlawful touching (actual
battery); (2) an attempt with unlawful force to inflict bodily injury upon another, tending but
failing to accomplish it (attempted battery); and (3) putting another in apprehension of harm.”
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No. 46673-2-II
166 Wn.2d at 215. Isidro-Soto was subject to 15 to 21 months of imprisonment for pleading
guilty to one count of second degree assault with a deadly weapon enhancement.
Assault is a crime of violence under 18 U.S.C. § 16. Isidro-Soto was convicted of a
felony-level crime of violence when he was convicted of second degree assault, and he was
subject to at least 15 months of imprisonment. Consequently, Isidro-Soto was convicted of an
aggravated felony. 8 U.S.C. § 1101(a)(43)(F). Because second degree assault is an aggravated
felony, it is a deportable offense. Accordingly, it is “truly clear” that second degree assault is a
deportable offense. Therefore, Isidro-Soto’s defense counsel was required to correctly advise
Isidro-Soto that pleading guilty to second degree assault would lead to deportation. Padilla, 559
U.S. at 369.
Following an evidentiary hearing, the superior court found that it was possible that
defense counsel never advised Isidro-Soto of the deportation consequences of pleading guilty to
second degree assault, that defense counsel may not have advised Isidro-Soto about deportation
consequences, and that defense counsel did not research whether second degree assault was a
deportable offense.
Defense counsel was required to give more than a general warning that pleading guilty
could result in deportation consequences to conform to a minimum level of competency. See
Sandoval, 171 Wn.2d at 172. However, the superior court found that it was possible that defense
counsel never advised Isidro-Soto that second degree assault was a deportable offense and that
defense counsel may not have advised Isidro-Soto of the deportation consequences of pleading
guilty. Moreover, the superior court found that defense counsel did not research whether second
degree assault was a deportable offense. Given the severity of deportation, it was unreasonable
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No. 46673-2-II
for defense counsel to fail to research the deportation consequences of Isidro-Soto’s plea. See
171 Wn.2d at 176. Therefore, Isidro-Soto shows that defense counsel’s performance was
deficient.
The State argues that even if defense counsel did not advise Isidro-Soto about the
deportation consequences of pleading guilty, Isidro-Soto was properly advised by the Statement
on Plea of Guilty. However, the Washington Supreme Court rejected this argument in Sandoval.
171 Wn.2d at 173. There, the Washington Supreme Court determined that the general warnings
in a Statement on Plea of Guilty “do not excuse defense attorneys from providing the requisite
warnings [under Padilla].” 171 Wn.2d at 173. Accordingly, we reject the State’s argument.
We hold that Isidro-Soto’s defense counsel’s performance was deficient because he did
not adequately research or advise Isidro-Soto of the deportation risks of pleading guilty.
II. PREJUDICE
Isidro-Soto argues that defense counsel’s deficient performance prejudiced him because
he would not have pleaded guilty if he had been advised of the deportation consequences of his
plea. We hold that Isidro-Soto has shown prejudice.
To show that counsel’s deficient performance was prejudicial, a petitioner challenging a
guilty plea must 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. Sandoval, 171 Wn.2d
at 174-75. A reasonable probability exists if the petitioner “convince[s] the court that a decision
to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S.
at 372.
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No. 46673-2-II
In State v. Sandoval, the Washington Supreme Court concluded that defense counsel’s
unreasonable advice prejudiced the defendant. 171 Wn.2d at 176. The Washington Supreme
Court reasoned:
Sandoval had earned permanent residency and made this country his home.
Although Sandoval would have risked a longer prison term by going to trial, the
deportation consequence of his guilty plea is also “a particularly severe penalty.”
For criminal defendants, deportation no less than prison can mean “banishment or
exile” and “separation from their families.” Given the severity of the deportation
consequence, we think Sandoval would have been rational to take his chances at
trial.
171 Wn.2d at 175-76 (quoting Padilla, 550 U.S. at 365, 373; Delgadillo v. Carmichael, 332 U.S.
388, 390-91, 68 S. Ct. 10, 92 L. Ed. 17 (1947)) (citation omitted) (internal quotation marks
omitted).
Here, Isidro-Soto spent the majority of his childhood living in the United States, and he
became a permanent legal resident in 2004. Additionally, Isidro-Soto expressly stated that he
would not have pleaded guilty if he would have known that he was pleading guilty to a
deportable offense.
Like in Sandoval, Isidro-Soto made the United States his home and had earned permanent
residency. While Isidro-Soto would have faced a longer sentence had he lost at trial, deportation
is also a particularly severe penalty. Consequently, it would have been rational for Isidro-Soto to
take his chances at trial. Accordingly, Isidro-Soto shows that there is a reasonable probability
that, but for defense counsel’s failure to advise, he would not have pleaded guilty and would
have insisted on going to trial. Thus, he has proven that defense counsel’s failure to advise
prejudiced him.
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No. 46673-2-II
CONCLUSION
We hold that Isidro-Soto showed that he received ineffective assistance of counsel
because defense counsel did not adequately research or advise Isidro-Soto of the deportation
risks of pleading guilty. As a result, Isidro-Soto’s plea was unintelligent and involuntary.
Accordingly, Isidro-Soto has proven constitutional error by a preponderance of the evidence and
has shown that the error resulted in actual and substantial prejudice. Therefore, we grant Isidro-
Soto’s PRP and remand to the superior court with instructions that Isidro-Soto be allowed to
withdraw his plea.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Lee, J.
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