State v. Gonzalez

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellant, 4 v. NO. 31,116 5 JESUS GONZALES,, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 8 Drew D. Tatum, District Judge 9 Gary K. King, Attorney General 10 William Lazar, Assistant Attorney General 11 Santa Fe, NM 12 for Appellant 13 Albert J. Costales 14 Truth or Consequences, NM 15 for Appellee 16 MEMORANDUM OPINION 17 FRY, Judge. 18 The State of New Mexico appeals the district court’s grant of Defendant Jesus 19 Gonzales’s motion to vacate his plea of no contest to child abuse. Defendant titled his 20 request for relief a “Petition for Writ of Coram Nobis, or in the Alternative a Rule [1- 1 060(B) NMRA] Motion to Set Aside a Void Judgment.” “Because the common law 2 writ of coram nobis was abolished and subsumed into Rule 1-060,” we address the 3 request under Rule 1-060(B). State v. Barraza, 2011-NMCA-111, ¶ 4, ___N.M.___, 4 267 P.3d 815; see State v. Tran, 2009-NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537. 5 On September 3, 2008, Defendant pleaded no contest to child abuse in violation 6 of NMSA 1978, Section 30-6-1(D) (2005) (amended 2009), a third degree felony. 7 Conviction for this offense makes it virtually certain that Defendant, who is not a 8 United States citizen, will be deported to Mexico. Under State v. Paredez, 2004- 9 NMSC-036, ¶ 25, 136 N.M. 533, 101 P.3d 799, Defendant’s counsel was obligated 10 to advise him of the specific consequences his plea would have on his immigration 11 status. The parties do not dispute that Defendant’s counsel failed to meet this 12 requirement, having advised him only that he faced possible deportation. Defendant 13 argues that he received ineffective assistance of counsel in agreeing to enter the plea 14 and should therefore be allowed to withdraw it. The district court agreed, and the 15 State appeals. 16 In considering claims of ineffective assistance, we apply the two-pronged 17 Strickland test. “‘A convicted defendant’s claim that counsel’s assistance was so 18 defective as to require reversal of a conviction . . . has two components. First, the 2 1 defendant must show that counsel’s performance was deficient. . . . Second, the 2 defendant must show that the deficient performance prejudiced the defense.’” Lytle 3 v. Jordan, 2001-NMSC-016, ¶ 25, 130 N.M. 198, 22 P.3d 666 (quoting Strickland v. 4 Washington, 466 U.S. 668, 687 (1984). Counsel’s failure to advise Defendant of the 5 specific consequences to his immigration status satisfies the deficient performance 6 prong of the ineffective assistance analysis. Paredez, 2004-NMSC-036, ¶ 19. Thus, 7 we need only address the second prong of Strickland. 8 “[T]he prejudice prong of the test is different for defendants convicted at trial 9 than for defendants whose convictions rest on pleas.” Patterson v. LeMaster, 10 2001-NMSC-013, ¶ 18, 130 N.M. 179, 21 P.3d 1032. “[I]n the plea bargain context 11 a defendant must establish that his counsel’s performance was objectively 12 unreasonable and that but for counsel’s errors, he would not have pleaded guilty and 13 instead gone to trial.” Id. (internal quotation marks and citation omitted). “A 14 defendant who was convicted on a plea is not required to prove that a trial would have 15 resulted in acquittal. The question is whether there is a reasonable probability that the 16 defendant would have gone to trial instead of pleading guilty or no contest had 17 counsel not acted unreasonably.” Id. (internal quotation marks and citation omitted). 18 “[A] defendant seeking to establish that there is a reasonable probability that he or she 19 would have gone to trial generally must introduce evidence beyond self-serving 3 1 statements.” State v. Edwards, 2007-NMCA-043, ¶ 35, 141 N.M. 491, 157 P.3d 56. 2 “Such evidence may include pre-conviction statements or actions indicating the 3 defendant’s preference to plead or to go to trial.” Id. “[C]ourts can look to the 4 strength of the evidence against the defendant in determining whether there is a 5 reasonable probability that the defendant would have elected to go to trial because the 6 evidence against a defendant informs his or her decision about whether to challenge 7 the charges at trial.” Id. (internal quotation marks and citation omitted). “There is a 8 direct relationship between the strength of the case against a defendant and the 9 likelihood that he or she will plead guilty or no contest.” Id. (internal quotation marks 10 and citation omitted). 11 In its decision letter following the hearing on Defendant’s Rule 1-060(B) 12 motion, the district court found that Defendant had presented evidence that he would 13 not have entered the plea agreement had he known he would be deported. The 14 decision letter did not identify the specific evidence the district court was relying on, 15 stating only, “The evidence presented by . . . Defendant to prove he would not have 16 entered into this plea agreement if he had not relied upon the advice of his attorney 17 [has] merit.” Our own review of the record, however, reveals that the district court 18 had evidence before it to support its decision in addition to Defendant’s testimony at 19 the plea withdrawal hearing. 4 1 We first recognize, as our Supreme Court did in Paredez, that “[d]eportation 2 can often be the harshest consequence of a non-citizen criminal defendant’s guilty 3 plea, so that in many misdemeanor and low-level felony cases . . . [he or she] is 4 usually much more concerned about immigration consequences than about the term 5 of imprisonment.” Id. ¶ 18 (alteration in original) (internal quotation marks and 6 citation omitted). Defendant’s circumstances in the present case suggest that 7 deportation would be a harsh outcome for him because he had left Mexico as a child 8 and legally lived in the United States for almost fifteen years; his mother, brother, and 9 wife–whose five children he was helping her raise–live in the United States; he owned 10 a house and vehicles with his wife; and he had no life in Mexico. 11 At the time Defendant entered his no contest plea and for some time thereafter, 12 the parties appear to have believed that if Defendant were granted a conditional 13 discharge for the offense, that outcome would not have counted as a conviction for 14 purposes of federal immigration law, and Defendant would not be deported. In his 15 closing argument at the sentencing hearing, for example, defense counsel argued for 16 a conditional discharge in order to avoid a felony conviction that would lead to 17 deportation and thus break up Defendant’s family. However, as the State realized 18 after filing its brief in chief in the present appeal, if a defendant admits sufficient facts 5 1 to warrant a finding of guilt, it counts as a conviction for immigration purposes even 2 if the trial court withholds an adjudication of guilt.1 3 In deciding how to plead, Defendant was confronted with two possible negative 4 outcomes: incarceration and deportation. Under the terms of the plea agreement, the 5 no contest plea could result in a conditional discharge, which Defendant and the 6 parties believed would mean no incarceration and no deportation. The other 7 possibility under the no contest plea was conviction, which would mean—as 8 Defendant was incorrectly told—possible deportation and possible incarceration. If 9 instead Defendant had gone to trial, he might be found not guilty and thus faced 10 neither deportation nor incarceration. If he were found guilty, he faced—he was 11 incorrectly told—possible deportation and likely longer incarceration than if he were 12 convicted under a no-contest plea. Thus, Defendant was incorrectly advised on two 13 levels: he was told that deportation was possible rather than virtually certain, and he 14 was told that a conditional discharge would not count as a conviction under 15 immigration law. As Defendant understood his options, the best outcome was the no 16 contest plea because the worst-case scenario there likely meant less incarceration than 1 16 8 U.S.C. 1101(a)(48)(A) (2010): “The term ‘conviction’ means, with respect 17 to an alien, a formal judgment of guilt of the alien entered by a court or, if 18 adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien 19 guilty or the alien has entered a plea of guilty or nolo contendere[,] or has admitted 20 sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form 21 of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 6 1 if he were found guilty after trial. As discussed above, the reality of his choices was 2 quite different: the no contest plea would result in virtually certain deportation. 3 Stated another way, given the reality of his choices as opposed to what he was told, 4 not only was there a “reasonable probability” that he would have elected to go to trial, 5 it simply made no sense for him to enter the no contest plea. Edwards, 6 2007-NMCA-043, ¶ 35. 7 Finally, although there was graphic evidence against Defendant in the form of 8 photographs of the victim’s bruises, if Defendant had correctly understood his options, 9 he had at least some incentive to take his chances at trial because a jury might have 10 accepted his argument that he believed he was defending his mother from the victim. 11 CONCLUSION 12 We conclude that but for the incorrect advice Defendant’s counsel provided, 13 there was a reasonable probability that Defendant would have elected to go to trial, 14 and he thus incurred prejudice under the second prong of Strickland. 15 For the reasons stated above, we affirm the district court and remand for further 16 proceedings consistent with this Opinion. 7 1 IT IS SO ORDERED. 2 3 CYNTHIA A. FRY, Judge 4 WE CONCUR: 5 6 RODERICK T. KENNEDY, Judge 7 8 LINDA M. VANZI, Judge 8