People v. Figueroa-Lemus

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 25, 2018

2018COA4

No. 14CA1181, People v. Figueroa-Lemus — Criminal Procedure
— Withdrawal of Plea of Guilty or Nolo Contendere — Deferred
Judgment and Sentence

A division of the court of appeals concludes that, following

Kazadi v. People, 2012 CO 73, 291 P.3d 16, a defendant may

challenge an unrevoked deferred judgment under Crim. P. 32(d).

Further, the majority concludes the court has jurisdiction to review

a district court’s denial of a motion to withdraw a guilty plea when

that motion challenged a deferred judgment still in effect.

In so concluding, the majority declines to follow People v. Sosa,

2016 COA 92, 395 P.3d 1144, because under the holding of that

case a defendant whose potentially meritorious motion to withdraw

a plea is denied by a district court would have no viable judicial

remedy. The dissent agrees with Sosa that the court of appeals
lacks jurisdiction to review the denial of a Crim. P. 32(d) motion

challenging a deferred judgment that has not been revoked.

Considering the merits of the motion to withdraw the guilty

plea, the majority concludes that the defendant did not establish a

fair and just reason for withdrawal because his counsel’s

performance was not deficient.

Accordingly, the court affirms the district court’s order.
COLORADO COURT OF APPEALS 2018COA4

Court of Appeals No. 14CA1181
Jefferson County District Court No. 12CR2874
Honorable Christie A. Bachmeyer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eswin Ariel Figueroa-Lemus,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE TAUBMAN
Richman, J., concurs
Furman, J., dissents

Announced January 25, 2018

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Eswin Ariel Figueroa-Lemus, appeals the district

court’s order denying his Crim. P. 32(d) motion to withdraw his

guilty plea. We first consider whether we have jurisdiction to

consider the appeal given that the guilty plea involves a deferred

judgment that is still in effect. We conclude that we do because the

supreme court in Kazadi v. People, 2012 CO 73, 291 P.3d 16,

expressly provided that a defendant may challenge such a plea

under Crim. P. 32(d). In doing so, we decline to follow People v.

Sosa, 2016 COA 92, 395 P.3d 1144. Next, we consider the merits

and reject Figueroa-Lemus’s argument that counsel were

constitutionally ineffective for failing to advise him of the

immigration consequences of his plea. Accordingly, we affirm the

district court’s order.

I. Background

¶2 Figueroa-Lemus pleaded guilty to possession of a schedule II

controlled substance and driving under the influence (DUI). The

parties stipulated to a two-year deferred judgment on the

possession count and probation on the DUI count. The court

accepted the deferred judgment and sentenced Figueroa-Lemus to

two years of probation.

1
¶3 About five months later, Figueroa-Lemus filed a Crim. P. 32(d)

motion to withdraw his guilty plea to the possession count. He

argued that defense counsel (Ed Ferszt) and the immigration

attorney Ferszt had him speak with (Samuel Escamilla) were

constitutionally ineffective for failing to advise him of the clear

immigration consequences of the plea. Specifically, he alleged that

counsel failed to investigate, research, and advise him that the plea

would (1) result in mandatory deportation; (2) destroy the defense of

cancellation of removal; (3) result in mandatory lifetime

inadmissibility to the United States; and (4) result in mandatory

immigration detention without bond. He also alleged that, if he had

been properly advised, it would have been rational for him to reject

the plea offer because it gave him no benefit from an immigration

perspective.

¶4 After an evidentiary hearing, the district court denied the

motion.

II. Jurisdiction

¶5 The People filed a motion to dismiss the appeal, arguing that

we do not have jurisdiction to review the order denying the Crim. P.

32(d) motion. They contend that the order is not final and

2
 appealable because the motion challenged a deferred judgment (a

non-final judgment), which had not been revoked when the court

entered the order or when Figueroa-Lemus filed the notice of

appeal.

¶6 Every court has the authority to decide the question of its own

jurisdiction. See In re Water Rights of Elk Dance Colo., LLC, 139

P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial

appellate jurisdiction over final judgments entered by a district

court. See § 13-4-102(1), C.R.S. 2017; C.A.R. 1(a)(1). A final

judgment is “one that ends the particular action in which it is

entered, leaving nothing further for the court pronouncing it to do

in order to completely determine the rights of the parties involved in

the proceedings.” People v. Guatney, 214 P.3d 1049, 1051 (Colo.

2009). In a criminal case, a final judgment is entered when a

defendant is acquitted, has the charges dismissed, or is convicted

and sentenced. See id.

¶7 A deferred judgment is not a final judgment. See People v.

Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, a deferred

judgment may not be subjected to either Crim. P. 35 or direct

review while it is still in effect. See Kazadi, ¶ 10, 291 P.3d at 19.

3
¶8 Nevertheless, a defendant may challenge a deferred judgment

under Crim. P. 32(d). See id. at ¶ 10, 291 P.3d at 19-20. In

Kazadi, the parties argued for the first time in the supreme court

that the defendant should be allowed to pursue a Crim. P. 32(d)

motion to withdraw his guilty plea. See id. at ¶ 9, 291 P.3d at 19.

The supreme court agreed, concluding that the rule “allows a

defendant to move for withdrawal of a guilty plea before sentence is

imposed or imposition of sentence is suspended.” Id. at ¶ 10, 291

P.3d at 20; cf. People v. Corrales-Castro, 2017 CO 60, ¶ 3, 395 P.3d

778, 779 (concluding that Crim. P. 32(d) did not provide a remedy

for a defendant who sought to withdraw his guilty plea after he had

completed the terms of the deferred judgment, the plea had been

withdrawn, and the case had been dismissed because Crim. P. 32(d)

requires that a plea exist in order for it to be withdrawn). The

supreme court then set forth the standards applicable to a Crim. P.

32(d) motion, including the standard of appellate review. See

Kazadi, ¶¶ 14-15, 291 P.3d at 21.

¶9 Like the defendant in Kazadi, Figueroa-Lemus pleaded guilty

to a drug felony and stipulated to a deferred judgment on that

count. The deferred judgment remains in effect, and he has not yet

4
 been sentenced on that count. Thus, we conclude that Crim. P.

32(d) provided him with a mechanism to challenge the guilty plea in

the district court.

¶ 10 We further conclude that we may review the district court’s

order denying the Crim. P. 32(d) motion. It is inconceivable that the

supreme court would provide a remedy in the district court without

allowing appellate review of the district court’s decision. See Colo.

Const. art. II, § 6 (guaranteeing every person a right of access to

courts of justice); Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269

U.S. 459, 472 (1926) (“Equity will not suffer a wrong without a

remedy.”). Indeed, Kazadi expressly overruled People v. Anderson,

703 P.2d 650 (Colo. App. 1985). See Kazadi, ¶ 20, 291 P.3d at 22-

23. In Anderson, a division of this court had concluded that a

deferred judgment was the equivalent of a suspension of sentence

(making the Crim. P. 32(d) motion untimely) and the order denying

a Crim. P. 32(d) motion was not a final, appealable order under

C.A.R. 1(a)(1). See Anderson, 703 P.2d at 652.

¶ 11 We recognize that Figueroa-Lemus might be able to otherwise

obtain appellate relief under C.A.R. 21(a)(1). However, relief under

that rule is discretionary and is only available in extraordinary

5
 circumstances. Even if Figueroa-Lemus were afforded relief under

that rule, it would not necessarily provide relief in other similarly

situated cases.

¶ 12 Finally, we are cognizant that another division of this court

has concluded that we do not have jurisdiction to review an order

denying a Crim. P. 32(d) motion in these circumstances and has

suggested that Kazadi did not discuss the appealability of such an

order. See Sosa, ¶ 16, 395 P.3d at 1147. In Sosa, the division

lamented that the defendant could not appeal the trial court’s

denial of his plea withdrawal motion, concluding that it lacked

jurisdiction to hear his appeal. See id. at ¶¶ 1, 18, 395 P.3d at

1145, 1147. We decline to follow Sosa because under the holding

in that case, a defendant whose potentially meritorious motion to

withdraw a plea is denied by a district court would have no viable

judicial remedy. See People v. Juarez, 2017 COA 127, ¶ 15, ___

P.3d ___, ___ (stating that one division of the court of appeals is not

bound by the decision of another division in a different case).

III. Crim. P. 32(d) Motion

¶ 13 Figueroa-Lemus argues that his guilty plea was not made

knowingly, voluntarily, and intelligently because Ferszt never

6
 informed him of the clear immigration consequences of the plea. He

contends that Ferszt failed to advise him that pleading guilty to the

crime of possession of a schedule II controlled substance would (1)

render him permanently inadmissible to the United States; (2)

subject him to mandatory detention during immigration

proceedings; (3) render him ineligible for the defense of cancellation

of removal; and (4) subject him to mandatory deportation from the

United States. We disagree.

A. Standard of Review

¶ 14 We review the district court’s denial of a Crim. P. 32(d) motion

for an abuse of discretion. See Kazadi, ¶ 15, 291 P.3d at 21. The

court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair, see People v. Finley, 141 P.3d 911, 913

(Colo. App. 2006), or when its decision is based on an erroneous

view of the law or facts. See People v. Segovia, 196 P.3d 1126, 1129

(Colo. 2008).

B. Crim. P. 32(d) Standards

¶ 15 A defendant does not have an absolute right to withdraw a

guilty plea. See Kazadi, ¶ 14, 291 P.3d at 21. However, a court

may allow a defendant to do so if he has shown a fair and just

7
 reason for the withdrawal — in other words, if denial of the request

would subvert justice. See id.

¶ 16 The defendant has the burden of establishing that there is a

fair and just reason to withdraw the guilty plea. See Crumb v.

People, 230 P.3d 726, 730 (Colo. 2010). A defendant can do so by

showing that the plea was made involuntarily. See id. A plea may

be made involuntarily if a defendant does not completely

understand the consequences of the plea and it is not the result of

a free and rational choice. See People v. Kyler, 991 P.2d 810, 816

(Colo. 1999).

¶ 17 The ineffective assistance of counsel may also constitute a fair

and just reason to withdraw the plea. See Kazadi, ¶ 21, 291 P.3d

at 23. To prevail on a Crim. P. 32(d) motion based on the ineffective

assistance of counsel, a defendant “must meet the standards both

for ineffective assistance of counsel and for withdrawal of a guilty

plea.” People v. Madera, 112 P.3d 688, 692 (Colo. 2005).

C. Ineffective Assistance of Counsel Standards

¶ 18 An ineffective assistance of counsel claim presents mixed

questions of law and fact. See Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). Thus, we defer to the district court’s findings of

8
 fact when they are supported by the record but review de novo its

legal conclusions. See id.

¶ 19 To prove a claim of ineffective assistance of counsel during the

plea process, “a defendant must show (1) counsel’s representation

fell below an objective standard of reasonableness and (2) a

reasonable probability exists that but for counsel’s errors, he or she

‘would not have pleaded guilty and would have insisted on going to

trial.’” People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011) (quoting

Hill v. Lockhart, 474 U.S. 52, 59 (1985)), aff’d, 2012 CO 73, 291

P.3d 16. “Because a defendant must show both deficient

performance and prejudice, a court may resolve the claim solely on

the basis that the defendant has failed in either regard.” People v.

Karpierz, 165 P.3d 753, 759 (Colo. App. 2006).

¶ 20 Plea counsel’s performance falls below an objective standard of

reasonableness — in other words, is deficient — when he or she

fails to present the defendant with the opportunity to make a

reasonably informed decision about whether to accept a plea offer.

See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009). Thus, a

defendant is entitled to assume that his or her counsel will provide

“sufficiently accurate advice” to enable him or her “to fully

9
 understand and assess the serious legal proceedings in which he

[or she] is involved.” People v. Pozo, 746 P.2d 523, 526 (Colo. 1987).

¶ 21 Defense counsel in a criminal case has a duty to investigate

relevant immigration law when he or she is aware that the client is

a noncitizen. See id. at 529. When the immigration law is not

succinct and straightforward, “a criminal defense attorney need do

no more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration consequences.”

Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Counsel must advise

a defendant of the risk of deportation when that consequence is

clear. See id. at 368 (concluding that the terms of the relevant

immigration statute were “succinct, clear, and explicit” where

defense counsel “could have easily determined that [the defendant’s]

plea would make him eligible for deportation simply from reading

the text of the statute”). However, Padilla does not require counsel

to “use specific words to communicate” those consequences.

Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013).

D. Federal Immigration Consequences

¶ 22 A noncitizen who is convicted of violating any law relating to a

controlled substance (other than a single offense involving

10
 possession of thirty grams or less of marijuana) is deportable. See

8 U.S.C. § 1227(a)(2)(B)(i) (2012). If the defendant is already in the

United States, he or she is subject to removal on the order of the

Attorney General. See 8 U.S.C. § 1227(a). The Attorney General is

required to take a noncitizen with such a conviction into custody,

and the noncitizen generally may not be released from custody.

See 8 U.S.C. § 1226(c)(1)(B), (c)(2) (2012).

¶ 23 Such a conviction also (1) stops the accrual of the seven-year

period of continued residence needed for a lawful permanent

resident to seek cancellation of removal, see 8 U.S.C. § 1229b(a)(2),

(d)(1) (2012); and (2) makes a noncitizen inadmissible and, thus,

ineligible to be admitted into the United States. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) (2012). Also, a conviction for purposes of federal

immigration law includes a deferred judgment and sentence. See 8

U.S.C. § 1101(a)(48)(A) (2012) (defining a conviction as a guilty plea

where “the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty to be imposed”).

E. Crim. P. 32(d) Hearing

¶ 24 During the Crim. P. 32(d) hearing, Ferszt testified that

11
 as evidenced by his notes, he learned that Figueroa-

Lemus was a permanent resident during the initial

intake;

 he explained to Figueroa-Lemus that if he pleaded guilty,

he would eventually be picked up and deported and it

was not a question of if, but when;

 although not reflected in a written note, he talked about

the deportation issue in every conversation he had with

Figueroa-Lemus;

 he understood that a guilty plea to the drug charge would

make Figueroa-Lemus mandatorily deportable and

mandatorily inadmissible, and that the defense of

cancellation of removal would not apply;

 he did not use “terms of art” but tended to use “a little

more colorful language” by telling Figueroa-Lemus that if

he pleaded guilty, “you’re gone,” he would lose his

residency and eventually be deported, there was no way

around it, and there was “no way to come and ask for

forgiveness or a waiver or a pardon”;

12
 he did not talk to Figueroa-Lemus about cancellation of

removal because, by telling him he would be deported, it

encompassed saying that there was no opportunity for

cancellation of removal;

 they initialed next to the paragraph about immigration

consequences on the Crim. P. 11 advisement to

“document that the issue was again brought up and

discussed in the conference room right outside of court,”

but the paragraph did not encapsulate all they

discussed;

 he advised Figueroa-Lemus numerous times that the

deferred judgment “would confer no benefit to him

whatsoever, other than avoiding the state felony

conviction,” and “for purposes of immigration, it was the

same as if he was pleading guilty straight up” and the

admission would be “permanent and binding”; and

 he pleaded with Figueroa-Lemus numerous times to talk

to an immigration lawyer and, when he failed to do so,

Ferszt referred Figueroa-Lemus to Escamilla.

13
¶ 25 Escamilla then testified that, as evidenced by his notes, he

advised Figueroa-Lemus that if he pleaded guilty he would be

deported. He also explained that the only drug conviction he could

have on his record was possession of thirty grams or less of

marijuana and told him that immigration officials would treat the

deferred judgment as a plea of guilty, which would stay on his

record forever for immigration purposes.

¶ 26 In contrast, Figueroa-Lemus testified that

 Ferszt never explained anything about the immigration

consequences of the plea but told him that, if he

successfully completed the deferred judgment, he “would

have no problem with [i]mmigration and could move on to

seek[] citizenship” — Ferszt never told him that he would

be deported;

 Escamilla advised him that “probably these cases could

be deportable,” but they could possibly delay the

proceedings so he could become a citizen before he

pleaded guilty;

14
  Escamilla advised him that if he complied with the

probation on the deferred judgment, it would be erased

from his record; and

 he was not telling the truth when he told the court

during the providency hearing that he understood the

Crim. P. 11 advisement.

¶ 27 The district court denied the Crim. P. 32(d) motion. It found

that neither Ferszt’s nor Escamilla’s performance fell below an

objective standard of reasonableness because (1) both told

Figueroa-Lemus “numerous times that he would be deported if he

plead[ed] guilty to a drug charge, and left with no defense”; and (2)

Ferszt advised Figueroa-Lemus that he would be permanently

inadmissible “with no pardon.” The court also concluded that

counsel were not required to advise Figueroa-Lemus that he would

be subject to mandatory detention without bond because it was not

a clear consequence of the guilty plea and Figueroa-Lemus had not

cited to (and it was not aware of) any authority to support that

position.

F. Application

15
¶ 28 Here, the immigration consequences of pleading guilty to a

felony drug offense involving a schedule II controlled substance

(including mandatory deportation, ineligibility for the cancellation of

removal defense, and permanent inadmissibility) were clear because

those consequences could be discerned from the face of the federal

statutes. See, e.g., People v. Campos-Corona, 2013 COA 23, ¶ 13,

343 P.3d 983, 986 (concluding that the mandatory removal

consequence in the statute for a controlled substance offense was

“succinct and straightforward”). Therefore, counsel was required to

advise Figueroa-Lemus of those consequences. See Padilla, 559

U.S. at 369.

¶ 29 We conclude that counsel adequately advised Figueroa-Lemus.

Because it is supported by the record, we defer to the district

court’s finding that both Ferszt and Escamilla told Figueroa-Lemus

on multiple occasions that a guilty plea to a drug felony would

result in deportation. Escamilla testified that he told Figueroa-

Lemus that he would be deported if he pleaded guilty. That

testimony was supported by a note that Escamilla made when he

gave Figueroa-Lemus the advisement.

16
¶ 30 And, Ferszt’s testimony that he told Figueroa-Lemus that if he

pleaded guilty, “you’re gone,” he would lose his residency and

eventually be deported, there was no way around it, and there was

“no way to come and ask for forgiveness or a waiver or a pardon”

sufficiently communicated that Figueroa-Lemus would be deported

if he pleaded guilty. That language, along with Ferszt’s advisement

that the admission would be permanent and binding for

immigration purposes, was also sufficient to convey to Figueroa-

Lemus that he was not eligible for the defense of cancellation of

removal and would be inadmissible — that is, would not be able to

return to the United States.

¶ 31 Although Figueroa-Lemus testified that counsel did not tell

him that he would be deported (but only that he could be deported),

it was for the district court (as the fact finder) to determine the

credibility of the testimony, weigh the evidence, and resolve

conflicts, inconsistencies, and disputes in the evidence. See People

v. Bertrand, 2014 COA 142, ¶ 8, 342 P.3d 582, 584. In the end, the

court found that Figueroa-Lemus’s testimony was not credible and

directly conflicted with notes from Ferszt’s file, emails between

17
 Ferszt and the prosecutor, the Crim. P. 11 petition, and the record

from the providency hearing.

¶ 32 Finally, we reject Figueroa-Lemus’s argument that counsel

should have advised him that he would be held in custody during

the removal proceeding (mandatory detention). Figueroa-Lemus

cites to no authority, and we have found none, that would require

counsel to give this advice. Counsel admitted during the Crim. P.

32(d) hearing that he did not have any case law to support the

argument. Although he cites to an American Bar Association

standard that states counsel should advise a client of all potential

adverse immigration consequences and includes immigration

detention in the list of those consequences, see Am. Bar Ass’n,

Fourth Edition of the Criminal Justice Standards for the Defense

Function 4-5.5(c) (Feb. 2015), https://perma.cc/PTU3-9WZQ, those

standards are not binding precedent. See People v. Aleem, 149 P.3d

765, 774 (Colo. 2007). In any event, we note that Figueroa-Lemus

fails to explain how such an advisement would have affected his

decision to accept the plea offer if he had been advised that he

would be detained before he was deported.

18
¶ 33 Under these circumstances, counsel’s performance was not

deficient. Because counsel’s performance was not deficient, we

need not consider whether Figueroa-Lemus was prejudiced. See

Karpierz, 165 P.3d at 759. We therefore conclude that the district

court did not abuse its discretion when it denied the Crim. P. 32(d)

motion. See Kazadi, ¶ 15, 291 P.3d at 21.

IV. Conclusion

¶ 34 The order is affirmed.

JUDGE RICHMAN concurs.

JUDGE FURMAN dissents.

19
 JUDGE FURMAN, dissenting.

¶ 35 Because I agree with the division in People v. Sosa, 2016 COA

92, and believe that we do not have jurisdiction to review the order

denying the Crim. P. 32(d) motion, I respectfully dissent.

¶ 36 Every court has the authority to decide the question of its own

jurisdiction. See Sosa, ¶ 8. As conferred by statute, we have initial

appellate jurisdiction over final judgments entered by a district

court. See § 13-4-102(1), C.R.S. 2017; Sosa, ¶ 8. In a criminal

case, a final judgment is entered when a defendant is acquitted, has

the charges dismissed, or is convicted and sentenced. See Sosa,

¶ 9.

¶ 37 But, a deferred judgment is not a final judgment. See People

v. Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, I believe that we

lack jurisdiction to review an order denying a Crim. P. 32(d) motion

to withdraw a guilty plea involving a deferred judgment if the

deferred judgment has not been revoked. See Sosa, ¶ 14.

¶ 38 Figueroa-Lemus sought to withdraw his guilty plea to the

possession count while the deferred judgment was still in place.

Although the prosecution filed a motion to revoke the deferred

judgment, the district court has not yet ruled on the motion. Under

20
 these circumstances, which are substantially similar to Sosa, I

would conclude that we lack jurisdiction to consider this appeal.

See id. I would therefore dismiss the appeal without prejudice for

lack of jurisdiction. See id. at ¶ 15.

¶ 39 While I agree with the majority that a defendant may challenge

a deferred judgment under Crim. P. 32(d), I disagree with the

majority’s conclusion that Kazadi v. People, 2012 CO 73, authorizes

appellate courts to review Crim. P. 32(d) motions that are denied by

the district court. Indeed, the Kazadi court reviewed the legal

standards generally applicable to Crim. P. 32(d) motions, including

that an appellate court would not overturn the denial of that motion

absent an abuse of discretion. Id. at ¶¶ 14-15. But, as the division

in Sosa noted, Kazadi did not address the appealability of an order

denying a Crim. P. 32(d) motion while a defendant’s deferred

judgment is still pending and judgment is not yet final. Sosa, ¶ 16.

¶ 40 There are certainly circumstances where an appellate court

would have jurisdiction to review the denial of a Crim. P. 32(d)

motion. For example, where a defendant’s Crim. P. 32(d) motion is

denied and judgment is subsequently entered against him, such a

judgment would be final and thus reviewable by an appellate court.

21
The standards of review laid out in Kazadi would be applicable to

that review. But, this is not such a case. Accordingly, I respectfully

dissent.

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