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ADVANCE SHEET HEADNOTE
June 22, 2020
2020 CO 59
No. 18SC572, People v. Figueroa-Lemus—Matters Subject to Appeal—Immigration
Advisements
Both the People and Figueroa-Lemus petitioned for review of the court of
appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion
to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction
on the grounds that until the defendant is actually sentenced and judgment of
conviction enters, there can be no final judgment from which an appeal would lie.
The defendant challenges the appellate court’s ultimate conclusion on the merits
that he was not entitled to an advisement by his counsel to the effect that he would
be detained without bond during the pendency of any deportation proceedings
initiated against him by the federal government.
The supreme court vacates the court of appeals’ opinion. Because a guilty
plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and
sentence does not become a final, appealable judgment unless and until the
deferral is revoked, sentence is actually imposed, and judgment of conviction
enters, the defendant was without any immediate right to appeal the denial of his
Crim. P. 32(d) motion, and the court of appeals was therefore not authorized to
entertain the defendant’s claim. The supreme court chooses, nevertheless, to
exercise its original jurisdiction in this case, and finds that the defendant was
adequately advised concerning the deportation consequences of his plea, and
therefore the district court did not abuse its discretion in denying his motion to
withdraw.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 59
Supreme Court Case No. 18SC572
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA1181
Petitioner/Cross-Respondent:
The People of the State of Colorado,
v.
Respondent/Cross-Petitioner:
Eswin Ariel Figueroa-Lemus.
Judgment Vacated
en banc
June 22, 2020
Attorneys for Petitioner/Cross-Respondent:
Philip J. Weiser, Attorney General
William G. Kozeliski, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent/Cross-Petitioner:
Megan A. Ring, Public Defender
Mark Evans, Deputy Public Defender
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1 Both the People and Figueroa-Lemus petitioned for review of the court of
appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion
to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction
on the grounds that until the defendant is actually sentenced and judgment of
conviction enters, there can be no final judgment from which an appeal would lie.
The defendant challenges the appellate court’s ultimate conclusion on the merits
that he was not entitled to an advisement by his counsel to the effect that he would
be detained without bond during the pendency of any deportation proceedings
initiated against him by the federal government.
¶2 Because a guilty plea taken pursuant to a statutorily sanctioned stipulation
to defer judgment and sentence does not become a final, appealable judgment
unless and until the deferral is revoked, sentence is actually imposed, and
judgment of conviction enters, the defendant was without any immediate right to
appeal the denial of his Crim. P. 32(d) motion, and the court of appeals was
therefore not authorized to entertain the defendant’s claim. Choosing,
nevertheless, to exercise our original jurisdiction in this case, we find that the
district court did not abuse its discretion in denying the defendant’s motion.
¶3 The judgment of the court of appeals is therefore vacated, and the case is
returned to the district court for further proceedings consistent with this opinion.
2
I.
¶4 Eswin Ariel Figueroa-Lemus, a lawful permanent resident of the United
States, was arrested on October 28, 2012, and charged with one count each of
possession of a controlled substance (cocaine), possession of drug paraphernalia,
and driving under the influence. On May 6, 2013, he pled guilty to the controlled
substance count pursuant to a statutorily sanctioned stipulation with the district
attorney for the deferral of judgment for a period of two years, pending
satisfaction of the conditions of his deferral. At the providency hearing at which
his plea was taken, the defendant acknowledged his awareness that his plea could
make him deportable, and defense counsel affirmatively stated on the record that
he and the defendant had a lengthy conversation about immigration
consequences, after which the defendant understood that this drug offense would
render him deportable. When expressly asked by the trial court whether plea
counsel’s statement was true, the defendant responded affirmatively.
¶5 On August 6, 2013, the People moved to revoke the deferred judgment,
alleging that the defendant had been arrested by federal Immigration and
Customs Enforcement (“ICE”) officers and therefore could no longer comply with
the requirements of his deferred judgment. On October 10, 2013, the defendant
filed a motion pursuant to Crim. P. 32(d) to withdraw his guilty plea, alleging in
support that he had received constitutionally deficient assistance of counsel at the
3
plea hearing because his counsel failed to give him correct advice about the
immigration consequences of his plea. He asserted that counsel was obligated to,
but did not, properly advise him of, among other things, the fact that if he were to
be subjected to deportation proceedings, he would be detained without bond
throughout the pendency of those proceedings.
¶6 At the time his motion was heard, the defendant testified that if he had been
properly advised, he would have rejected the plea deal and insisted on going to
trial. His counsel testified that he affirmatively advised the defendant he would
eventually be deported, but he conceded that he never told the defendant directly
that he would be subjected to mandatory detention during the pendency of any
deportation proceedings. In addition, an immigration attorney to whom defense
counsel had referred the defendant before his plea, testified that he also informed
the defendant that accepting the plea would result in his deportation but did not
specify that accepting the plea would subject him to mandatory detention during
the pendency of any deportation proceedings.
¶7 On May 5, 2014, the trial court denied the motion to withdraw the
defendant’s guilty plea. The trial court found credible the testimony of the two
attorneys and further found that their advice that the defendant would be
deported if he accepted the plea was adequate advice concerning the deportation
consequences of the plea. The court also specifically found that mandatory
4
detention without bond was not a clear deportation consequence of the plea as to
which the defendant was entitled to an advisement, noting the absence of any
authority for that proposition.
¶8 Although the court of appeals acknowledged that a deferred judgment is
not a final judgment for purposes of appeal, a majority of the division nevertheless
concluded for a number of reasons that unless the defendant were entitled to an
immediate appeal of the denial of his motion to withdraw, he would be without
an adequate remedy. Characterizing our holding in Kazadi v. People, 2012 CO 73,
291 P.3d 16, as permitting a defendant to “challenge a deferred judgment under
Crim. P. 32(d),” People v. Figueroa-Lemus, 2018 COA 51, ¶ 9, __ P.3d __, the court of
appeals concluded that it was unlikely that we would provide a remedy in the
district court without allowing appellate review. Id. at ¶ 11. On the merits,
however, the majority affirmed the trial court’s denial of the defendant’s Crim. P.
32(d) motion, expressly rejecting his contention that defense counsel was obliged
to advise him he would be subject to mandatory detention during the pendency
of his deportation proceedings and instead concluding that he had been
adequately advised of the immigration consequences of his plea.
¶9 Both the People and the defendant then petitioned this court for a writ of
certiorari to the court of appeals.
5
II.
¶10 Answering the question whether a criminal defendant has a right of
immediate appeal from the denial of his motion to withdraw a guilty plea entered
pursuant to a deferred judgment stipulation does not require us to break new
ground.
¶11 We have a number of times in the past made abundantly clear that a
statutorily sanctioned deferred judgment and sentence is not a final judgment, and
therefore, unless and until revoked, it may not be subject to either direct appellate
review or postconviction relief. People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008);
see also People In Interest of J.D., 2020 CO 48, ¶ 14, __ P.3d __ (citing precedent
explaining that the entry of a deferred judgment is not a final appealable sentence);
Kazadi, ¶¶ 18–19, 291 P.3d at 22 (“[A] deferred judgment is not a final judgment,
and thus may not be subject to either Crim. P. 35 review or direct appellate review
until revoked.” (quoting Carbajal, 198 P.3d at 105)). Although the decisions and
rulings of a district court on motions made in the course of a criminal case are not,
in the absence of specific authority to the contrary provided by rule or statute,
appealable until a final judgment is reached, see C.A.R. 1(a), the court of appeals
reasoned that we would not have permitted a challenge to deferred judgments by
Crim. P. 32(d) in Kazadi had we not considered the denial of a motion to withdraw
sufficiently final to permit immediate appellate review. In combination, the
6
intermediate appellate court’s misunderstanding of the scope of Crim. P. 32(d), its
misreading of our opinion in Kazadi, and its mistaken presumptions about the
availability of review upon entry of a final judgment, all led it to this erroneous
conclusion.
¶12 In Kazadi we found the procedural vehicle of Crim. P. 32(d) available for the
withdrawal of those guilty pleas taken pursuant to a stipulation for deferred
judgment, just as it is for the withdrawal of pleas of guilt and nolo contendere
generally, precisely because a deferred judgment is not yet a final judgment subject
to review by a higher court. ¶¶ 18–20, 291 P.3d at 22–23. Unlike Crim. P. 35, which
provides for postconviction relief, Rule 32(d) does not authorize, or provide any
mechanism for, challenges to the validity—constitutional or otherwise—of guilty
pleas. Instead, it provides a vehicle for a pleading defendant to present the court
taking his plea with a fair and just reason for discretionarily permitting
withdrawal of that plea, rather than proceeding to sentencing and final judgment.
See Kazadi, ¶ 14, 291 P.3d at 21.
¶13 As we have only recently again made clear, while a demonstration of the
likelihood of a constitutional defect in the taking of a plea could certainly present
a fair and just reason for permitting its withdrawal, so too could a number of other
grounds not amounting to error at all. J.D., ¶ 13. The more flexible, discretionary
standard of Crim. P. 32(d) permits considerations of fairness and the avoidance of
7
error rather than a remedy for error. See People v. Chippewa, 751 P.2d 607, 611 n.6
(Colo. 1988) (declining to follow the court of appeals, which unnecessarily
addressed the constitutional validity of the defendant’s advisement concerning
mandatory sentencing, and instead merely finding an abuse of discretion where
the defendant’s Crim. P. 32(d) motion established a fair and just reason for
withdrawal of his plea).
¶14 Although section 16-12-101, C.R.S. (2019), grants every person convicted of
an offense under the statutes of this state the right of appeal to review the
proceedings resulting in his conviction, it expressly does so only according to the
applicable rules of the supreme court, a reference we have often construed to
include the final judgment requirement of the appellate rules. C.A.R. 1(a) (“An
appeal to the appellate court may be taken from . . . [a] final judgment of any
district . . . court . . . .”); see People v. Gabriesheski, 262 P.3d 653, 656–57 (Colo. 2011)
(appealable matters are subject to the final judgment requirement of C.A.R. 1). Our
statement in Kazadi to the effect that we will not overturn the denial of a motion to
withdraw absent an abuse of discretion implied nothing to the contrary, instead
merely articulating the standard of review of Crim. P. 32(d) motions without
implying anything about the timing of such a review, much less suggesting an
entitlement to immediate appellate review. And the suggestion of the court of
appeals that an appeal from the denial of a motion to withdraw would be time-
8
barred whenever the deferred judgment is not revoked within forty-nine days
following denial simply misreads C.A.R. 4(b), which measures time limitations for
appeal only from appealable orders.
¶15 The denial of Crim. P. 32(d) motions to withdraw guilty pleas are clearly
reviewable after sentencing and the entry of final judgments of conviction. See,
e.g., Chippewa, 751 P.2d at 608–09. Although the window for both filing and
seeking review of the denial of a Crim. P. 32(d) motion is typically narrow, in
Kazadi we found nothing on the face of the rule prohibiting a defendant stipulating
to a deferred judgment from also taking advantage of that rule, if he so chooses.
¶ 20, 291 P.3d at 22–23. By the same token, however, the fact that we have
construed the rule to entitle a defendant to move for the discretionary withdrawal
of his plea up until his deferred judgment is revoked and judgment enters in no
way implies that he also be entitled to bootstrap this advantage into a claim for
appellate review before judgment actually enters.
¶16 In any event, rarely will it be the case that a defendant will be substantially
disadvantaged by having to either fulfill or violate the conditions of his deferred
judgment stipulation before challenging the plea court’s exercise of discretion to
deny a motion to withdraw a guilty plea. However, in the limited situations in
which that may be the case, a defendant laboring under a deferred judgment
stipulation in this jurisdiction has a realistic opportunity for discretionary review
9
by this court. Paul v. People, 105 P.3d 628, 632–33 (Colo. 2005). As we have done
at times in the past, where the defendant’s assignment of error has been fully
briefed, the court of appeals has published its resolution of the matter, and our
determination that the defendant’s claim is not yet ripe for appeal would
otherwise result in unnecessary delay, see, e.g., id., we choose to exercise our
original jurisdiction and address the defendant’s claim.
¶17 The defendant asserts that he was denied the effective assistance of counsel
in entering into his deferred judgment stipulation because his counsel failed to
advise him that he would be detained during deportation proceedings by the
federal government, and had he been made aware of that fact, he would not have
entered into the agreement. In Padilla v. Kentucky, 559 U.S. 356, 365–66, 369 (2010),
the United States Supreme Court found that the virtually automatic deportation
mandate of existing federal immigration law was a unique consequence of which
counsel has an obligation to inform his client before pleading guilty. Where
immigration law is less than clear, the Court required counsel to advise his client
merely that there may be a risk of adverse immigration consequences, but where
the law is “succinct and straightforward,” it required counsel to provide correct
advice. Id. at 369. In Juarez v. People, 2020 CO 8, ¶¶ 17–18, 457 P.3d 560, 564, we
recently considered this requirement of Padilla, and interpreted it to be that where
federal law makes a person pleading guilty to a particular crime deportable, the
10
correct advice for counsel to give is to inform his client precisely that—that by
entering a guilty plea, federal law will make him deportable.
¶18 In denying the defendant’s Crim. P. 32(d) motion, the district court found
credible the testimony of his counsel that he not only advised his client that by
entering his guilty plea he would be deported, but that it was not a matter of “if”
but only of “when.” There is no assertion that the defendant was given any
additional, incorrect advice about the immigration consequences of his plea.
Nothing more concerning the immigration consequences of his plea was required
of his counsel. Since federal practice concerning detention during deportation
proceedings was not something of which the defendant was entitled to
advisement by either his counsel or the court, see Juarez, ¶¶ 17–18, 457 P.3d at 564,
there is no basis for finding that the district court abused its discretion in denying
the defendant’s motion to withdraw his guilty plea.
III.
¶19 The judgment of the court of appeals is therefore vacated, and the case is
returned to the district court for further proceedings consistent with this opinion.
11
v. Figueroa-Lemus
Combined Opinion