FILED
MARCH 9, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33432-5-111
Respondent, ) (consolidated with 33052-4-111)
)
V. )
)
MARIA I. MANZO, )
) UNPUBLISHED OPINION
Appellant. )
)
)
In the Matter of the Personal Restraint of )
)
MARIA I. MANZO )
FEARING, C.J. - In 2004, Maria Manzo pied guilty to conspiracy to possess
cocaine with the intent to deliver. She now argues that she received ineffective assistance
of counsel because her trial counsel failed to inform her of the full immigration
consequences of her plea or he affirmatively misadvised her of the immigration
consequences. We disagree.
FACTS
Maria Isabel Manzo came to the United States in 1996 at the age of twelve years
old. On November 12, 2003, following a search of her home, the State of Washington
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charged Maria Manzo with possession of marijuana with intent to deliver, possession of
cocaine with intent to deliver, possession of stolen property in the first degree, and alien
in possession of a firearm. Attorney Adolfo Banda represented Manzo.
On January 12, 2004, Maria Manzo pied guilty to the amended charge of
conspiracy to possess cocaine with the intent to deliver. The State recommended time
served and restitution. Defense counsel Adolfo Banda checked a box allowing the court
to "review the police reports and/or a statement of probable cause supplied by the
prosecution to establish a factual basis for the plea." Clerk's Papers (CP) at 12.
After accepting the plea, the trial court, on January 12, 2004, heard argument
regarding sentencing. Adolfo Banda commented:
My client has-actually I know my client has an immigration hold
and she'll be deported. She'll be joined by her infants in Mexico once she
gets to Mexico. The deportation in itself is punishment. She won't be able
to come back to this country and she won't be able to acquire legal status in
this country as the law stands right now. Therefore, in the interests of
justice, we ask the court to accept the State's recommendation.
CP at 51. Victor Guzman interpreted the English words of Banda into Spanish for Maria
Manzo. When the court asked if Manzo wished to comment, Manzo replied: "I just want
to be reunited with my children." CP at 51.
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During the 2004 plea hearing, neither the trial court nor counsel informed Maria
Manzo of her right to appeal the sentence. Neither the trial court nor counsel informed
Manzo of the right to collateral attack of the judgment or a time limit for collateral attack.
PROCEDURE
On November 29, 2011, Maria Manzo filed, with the trial court, a motion to
withdraw her guilty plea. In support of her motion, Manzo filed two declarations and two
declarations from Adolfo Banda.
In Maria Manzo's first declaration, she averred:
Mr. Banda never told me anything specific about what would happen
at immigration. The only things that were told to me were in the papers
that I signed. It was my understanding from these papers that when I
pleaded guilty that I would still have some chance to argue to stay here in
the United States. I had been here for a long time and I had two children
and one of them needed to see doctors .
. . . I also found out from my immigration lawyer that my lawyer for
this case should have warned me that by signing these papers that I
wouldn't have any chances at all to stay in the United States. If that had
been explained to me clearly[,] I would have not just agreed to be deported.
I didn't have anything to do with drugs and I would have testified in court
about this.
CP at 41.
In her second declaration, Maria Manzo stated:
I remember now that Mr. Banda told me that it would give a better
chance of the court going along with the agreement he made with the
prosecutors if he also said that I would be deported. I was very concerned
about this, but then he also told me that he wasn't an immigration lawyer so
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he actually didn't know whether or not I would be deported. He said that it
meant just that I was being sent for deportation. He said that this would be
up to the immigration court. I remember now after having it read to me
how he also talked about my children to the judge.
CP at 42.
In his first declaration, Adolfo Banda declared:
It was always my general practice to go over all the sections of a
client's guilty plea with my client. This would include the general
immigration warnings that are part of the State of Washington Statement of
Defendant on Plea of Guilty.
CP at 36. He also averred that he recommended to Maria Manzo to employ an Alford
plea for immigration reasons.
In Adolfo Banda's second declaration, he avowed:
As previously stated, I was not certain that Ms. Manzo would
actually be deported as a result of this conviction. It seemed likely to me
that Ms. Manzo would be sent for deportation proceedings after the case
had ended. It was my intention in bringing up the issue of deportation to
the court to make the court mindful of the fact that if she was going to be
deported that any additional conditions that the court might add as to drug
treatment would be impossible for Ms. Manzo to fulfill.
CP at 54.
Maria Manzo also filed an affidavit of immigration attorney, Drew White. White
declared that he recently interviewed Manzo, who informed him that she lacked
knowledge that her guilty plea precluded her from obtaining legal status in the United
States. White further averred that Manzo's crime prevented her from legal status in this
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country. White faults Adolfo Banda for failing to inform Manzo of the direct deportation
consequences of her plea.
On January 9, 2015, the trial court transferred the motion to withdraw the guilty
plea to this court to be considered as a personal restraint petition. When transferring the
case, the trial court found that Adolfo Banda did not affirmatively misadvise Maria
Manzo regarding the immigration consequences of her plea.
On May 27, 2015, Maria Manzo appealed the trial court's January 12, 2004
acceptance of her guilty plea and finding of guilt. Our court commissioner ruled the
appeal to be timely given Manzo's lack of notice regarding a right to appeal.
Commissioner's Ruling, State v. Manzo, No. 33432-5-111 (Wash. Ct. App. July 8, 2015).
We consolidated the direct appeal with the personal restraint petition.
LAW AND ANALYSIS
In both her personal restraint petition and her direct appeal, Maria Manzo argues
that she received ineffective assistance of counsel because Adolfo Banda misadvised her
of the full immigration consequences of her guilty plea. Therefore, according to Manzo,
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) compels
vacation of her plea. The State responds, in part, that attorney Banda warned Manzo of
the full legal consequences. We agree with the State.
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Because we review Maria Manzo's personal restraint petition, we may consider
affidavits filed by Manzo in support of her motion to vacate. In re Personal Restraint of
Ramos, 181 Wn. App. 743, 749, 326 P.3d 826 (2014), review granted, 181 Wn.2d 1029
(2015). Because we also review this case on direct appeal, Manzo receives the benefit of
the changes in law since her 2004 plea. In re Ramos, 181 Wn. App. at 749. Anyway, our
state high court held that Padilla v. Kentucky did not announce a new rule as applied in
Washington and therefore the benefits of Padilla apply retroactively to defendants in
collateral review. In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 103,351
P.3d 138 (2015).
A strong public interest encourages the enforcement of a plea agreement when an
accused voluntarily and intelligently enters the plea. In re Detention ofScott, 150 Wn.
App. 414,426, 208 P.3d 1211 (2009). Nevertheless, the court may allow a defendant to
withdraw his guilty plea when the withdrawal is necessary to correct a manifest injustice.
In re Detention of Scott, 150 Wn. App. at 426. The defendant bears the burden of
proving manifest injustice, defined as "' obvious, directly observable, overt, not
obscure.'" In re Detention ofScott, 150 Wn. App. at 426-27 (internal quotation marks
omitted) (quoting State v. Ross, 129 Wn.2d 279, 283-84, 916 P.2d 405 (1996)). For
purposes of withdrawing a guilty plea, a manifest injustice exists under four per se
nonexclusive instances: (1) the defendant did not ratify the plea, (2) the plea was not
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· State v. Manzo;PRP of Manzo
voluntary, (3) the defendant received ineffective assistance of counsel, or (4) the plea
agreement was not kept. State v. Wakefield, 130 Wn.2d 464,472, 925 P.2d 183 (1996);
State v. Wilson, 162 Wn. App. 409, 414-15, 253 P.3d 1143 (2011). Maria Manzo relies
only on ineffective assistance of counsel.
To establish ineffective assistance of counsel, a defendant must satisfy a two-part
test (1) that his or her counsel's assistance was objectively unreasonable and (2) that as a
result of counsel's deficient assistance, he or she suffered prejudice. Strickland v.
Washington, 466 U.S. 668,690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
demonstrate the first prong, deficient performance, a reviewing court adjudges the
reasonableness of counsel's challenged conduct on the facts of the particular case, viewed
as of the time of counsel's conduct. Strickland, 466 U.S. at 690. The appellate court
presumes counsel's effectiveness. State v. Gomez Cervantes, 169 Wn. App. 428,434,
282 P.3d 98 (2012).
The Sixth Amendment right to effective assistance of counsel encompasses the
plea process. McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d
763 (1970); State v. S(?ndoval, 171 Wn.2d 163, 168-69, 249 P.3d 1015 (2011). Faulty
advice of counsel may render the defendant's guilty plea involuntary or unintelligent.
Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); State v.
Sandoval, 171 Wn.2d at 169. To establish that the plea was involuntary or unintelligent
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due to counsel's inadequate advice, the defendant must show under the test in Strickland
that his attorney's performance was objectively unreasonable and that he was prejudiced
by the deficiency. Sandoval, 171 Wn.2d at 169.
Prior to Padilla v. Kentucky, 559 U.S. 356 (2010), Washington law considered
deportation a collateral consequence of a conviction and anything short of an affirmative
misrepresentation by counsel of the plea's deportation consequences could not support a
plea withdrawal. State v. Sandoval, 171 Wn.2d at 170 n.1; In re Personal Restraint of
Yim, 139 Wn.2d 581, 587-89, 989 P.2d 512 (1999). Padilla explicitly rejected the
proposition that only affirmative erroneous advice about deportation consequences of the
plea, and not failure to give such advice, could constitute ineffective assistance of
counsel. Padilla also emphasized that, for at least the past fifteen years, professional
norms imposed an obligation on counsel to provide advice on the deportation
consequences of a client's plea.
Dicta in Padilla suggests that its holding also applies to undocumented noncitizens
who would become ineligible to apply for relief.
[W]e have recognized that "preserving the possibility of'
discretionary relief from deportation ... "would have been one of the
principal benefits sought by defendants deciding whether to accept a plea
offer or instead to proceed to trial."
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Padilla, 559 U.S. at 368 (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S. Ct. 2271, 150
L. Ed. 2d 347 (2001)). This court applied a full Padilla analysis when an undocumented
defendant argued that counsel failed to advise him that his offense constituted a
commission of a crime involving moral turpitude, which automatically made him
ineligible to remain in the United States. In re Ramos, 181 Wn. App. at 754.
Maria Manzo relies on State v. Little/air, 112 Wn. App. 749, 51 P.3d 116 (2002).
In Little/air, the defendant did not receive immigration warnings because his attorney
struck them from the written plea of guilty. Counsel subjectively believed that his client
was a United States citizen. The trial court vacated the guilty plea, and this court
affirmed. This court noted that when Littlefair pled, he did not know the likelihood of
deportation. His lack of knowledge was not due to any fault or omission on his part.
Littlefair did not consider the stricken subsections applied to him, so he did not read
them. The sentencing court failed to ascertain whether counsel properly advised
Littlefair of possible deportation consequences.
State v. Little/air lacks any relevance to this appeal. Contrary to the argument of
Maria Manzo, her trial counsel specifically warned that she would be deported and not be
eligible to return to the United States. During the January 12, 2004, hearing, Adolfo
Banda declared: "[A]ctually I know my client has an immigration hold and she'll be
deported. She'll be joined by her infants in Mexico once she gets to Mexico." CP at 51.
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Banda added: "She won't be able to come back to this country and she won't be able to
acquire legal status in this country as the law stands right now." CP at 51.
Maria Manzo protests that she did not understand she could not return to the
United States. Nevertheless, her counsel specifically stated otherwise during the plea
hearing. We recognize that Manzo probably does not understand English. Nevertheless,
an interpreter repeated, in Spanish, her counsel's clarion warning. She does not allege
any faulty translation. Manzo does not aver that Adolfo Banda advised her contrary to
his court comments or that Banda later recanted his comments.
CONCLUSION
We affirm Maria Manzo 2004's guilty plea. We dismiss her personal restraint
petition and deny her appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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State of Washington v. Maria I. Manzo
Combined Opinion