In Re Pers. Restraint of Yung-Cheng Tsai

Opinion

This opinion was filed for record at 8:

~--p~ ~onald R. Carpe~ter Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) In the Matter of the Personal ) No. 88770-5 Restraint of ) (consolidated with ) No. 89992-4) YUNG-CHENG TSAI, ) ) Petitioner. ) _______________________) ENBANC ) In the Matter of the Personal ) Restraint of ) ) Filed: MAY 0 7 2015 MUHAMMADOU JAGANA, ) ) Petitioner. ) _______________________) YU, J.-As applied to Washington, the holding in Padilla v. Kentucky, 559

U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) is an affirmation of an old n1le

of state constitutional law- the duty to provide effective assistance of counsel

includes the duty to reasonably research and apply relevant statutes. However,

language in certain Washington appellate cases made it appear that this well- In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

established rule did not apply to RCW 10.40.200. In superseding those cases,

Padilla significantly changed state law.

Muhammadou Jagana raises a claim that would have been rejected before

Padilla based on those superseded appellate cases. We therefore reverse the Court

of Appeals' order dismissing Jagana's personal restraint petition (PRP) and remand

to the trial court for an evidentiary hearing. However, Yung-Cheng Tsai's claim

was available before Padilla, and Tsai did in fact raise his claim with the assistance

of an attorney in 2008. That motion was denied based on an issue of law not

affected by Padilla, and Tsai did not appeal. We therefore affirm the Court of

Appeals' order dismissing Tsai 's PRP.

FACTUAL AND PROCEDURAL HISTORY

A. Yung-Cheng Tsai

On July 27, 2006, Tsai pleaded guilty to one count of unlawful possession of

a controlled substance with intent to deliver (marijuana). On August 29, 2006, the

trial court sentenced him to 11 months in jail and 12 months of community

custody. Tsai did not appeal. On or about October 30, 2007, Tsai received a

notice to appear from the United States Immigration and Naturalization Services,

which informed him that he was subject to removal (also known as deportation)

based on his conviction.

2 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

On July 21, 2008, Tsai filed a motion to withdraw his guilty plea under CrR

7 .8, alleging that his attorney wrongfully advised him he would not be deportable

if he accepted the State's plea offer and that this erroneous advice was prejudicial.

The trial court denied Tsai' s motion as time barred. The motion was filed over one

year after Tsai pleaded guilty, and the trial court held that equitable tolling did not

apply. The trial court did not transfer Tsai' s motion to the Court of Appeals for

consideration as a PRP. Tsai did not appeal or otherwise pursue his 2008 motion.

On May 18, 2011, Tsai again moved to withdraw his guilty plea under CrR

7.8 based on his attorney's alleged erroneous advice. Tsai argued his motion was

exempt from the one-year time bar in RCW 10.73.090(1) under RCW 10.73.100(6)

because Padilla and State v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011)

(applying Padilla) effected a significant, material change in the law that applies

retroactively.

The trial court initially denied Tsai's 2011 motion, holding it was time

barred. On Tsai' s motion, the trial court vacated its holding and transferred the

motion to the Court of Appeals to be considered as a PRP. The Court of Appeals

denied Tsai's PRP as time barred, holding that Padilla and Sandoval do not apply

retroactively. We granted Tsai's motion for discretionary review and consolidated

his case with Jagana's. In re Pers. Restraint ofYung-Cheng Tsai, 180 Wn.2d

1014,327 P.3d 55 (2014).

3 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

B. Muhammadou Jagana

On June 7, 2006, Jagana pleaded guilty to one count of possession of a

controlled substance (cocaine). He was sentenced to three months of electronic

home monitoring. J agana did not appeal.

On November 4, 2010, Jagana moved to withdraw his guilty plea under CrR

7.8. Relying on Padilla, Jagana asserted that his attorney failed to investigate

Jagana's immigration status, did not advise him that his guilty plea could have

immigration consequences, and did not advise him to speak with an immigration

attorney. The trial court transferred Jagana's motion to the Court of Appeals to be

considered as a PRP.

The Court of Appeals initially filed a published opinion holding Jagana's

PRP was timely under RCW 10.73.100(6) and remanding the case to the trial court

for a reference hearing. In re Pers. Restraint ofJagana, 170 Wn. App. 32, 282

P.3d 1153 (2012). The Court of Appeals reasoned that Padilla was a significant,

material change in the law and that Padilla should apply retroactively because it

was not a new rule; it merely applied the standard analysis for ineffective

assistance of counsel to a new set of facts.

The State sought discretionary review, and we remanded to the Court of

Appeals for reconsideration in light of Chaidez v. United States, 568 U.S._, 133

S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013), which held Padilla did announce a

4 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

new rule that does not apply retroactively to matters on collateral review. In re

Pers. Restraint ofJagana, 177 Wn.2d 1027, 309 P.3d 1186 (2013). On

reconsideration, the Court of Appeals withdrew its opinion and dismissed Jagana's

PRP as time barred. We granted Jagana's motion for discretionary review and

consolidated his case with Tsai' s. In re Pers. Restraint ofJagana, 180 Wn.2d

1014,327 P.3d 55 (2014).

ISSUES

A. Are the PRPs exempt from the one-year time bar in RCW

10.73.090(1) under RCW 10.73.100(6)?

B. If the PRPs are not time barred, are the petitioners entitled to relief or

evidentiary hearings on the merits of their claims?

ANALYSIS

A. As applied to Washington, Padilla did not announce a new rule, but it did effect a significant change in the law under RCW 10.73.100(6)

1. The unreasonable failure to give any advice about the immigration consequences of a guilty plea was already deficient performance in Washington under the ordinary Strickland test

A criminal defendant's right to the assistance of counsel derives from the

Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution. Under these provisions, a criminal defense attorney has

the constitutional duty to provide assistance that is effective. Strickland v.

5 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of.Jagana, No. 89992-4

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Where

a defense attorney makes "errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment," the attorney's

performance is constitutionally deficient. !d. at 687. Where that deficiency

deprives the defendant of fair proceedings, the defendant has suffered prejudice

because there is "a breakdown in the adversary process that renders the result

unreliable." Id. Unreliable results caused by defense counsel's prejudicially

deficient performance are constitutionally intolerable.

When determining whether a defense attorney provided effective assistance,

the underlying test is always one of "reasonableness under prevailing professional

norms." Id. at 688. While simple to state in theory, this test can be complicated to

apply in practice. The court must engage in a fact-specific inquiry into the

reasonableness of an attorney's actions, measured against the applicable prevailing

professional norms in place at the time. Id. at 690. It is thus impossible to

"exhaustively define the obligations of counsel [ ]or form a checklist for judicial

evaluation of attorney performance." Id. at 688. Nevertheless, effective

representation "entails certain basic duties," such as

a duty of loyalty, a duty to avoid conflicts of interest[,] ... the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear

6 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4

such skill and knowledge as will render the trial a reliable adversarial testing process.

I d.

It is against this backdrop that we consider whether Padilla applies

retroactively under RCW 10.73.100(6) and Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060, 103 L. Ed. 2d 334 (1989). Under Teague, new constitutional rules of

criminal procedure usually apply only to matters on direct review, but old rules

apply to matters on both direct and collateral review. Whorton v. Bockting, 549

U.S. 406, 416, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). Because it is impossible to

exhaustively define a defense attorney's obligations under Strickland, cases that

merely apply the ordinary test for ineffective assistance of counsel to new facts do

not announce new rules for Teague purposes. Chaidez, 133 S. Ct. at 1107 (citing

Strickland, 466 U.S. 668). As applied to Washington law, Padilla is just such a

case.

In Chaidez, the Supreme Court held that Padilla did not merely apply the

ordinary test for ineffective assistance of counsel; it first considered the threshold

question of whether defense counsel has any constitutional duty to advise

noncitizen defendants about the immigration consequences of pleading guilty. I d.

at 1108. The notion that defense counsel has no such duty arose from a distinction

many courts have drawn between direct and collateral consequences. Padilla, 559

7 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

U.S. at 365 & n.9. Immigration consequences were usually considered collateral

and thus outside the scope of defense counsel's constitutional duty to advise. Id. at

364-65. Padilla did not fully reject the direct-versus-collateral distinction but held

it was not appropriate as applied to immigration consequences. Id. at 366.

This court first explicitly adopted the distinction between direct and

collateral consequences in a 1980 case holding that habitual criminal proceedings

were collateral consequences. State v. Barton, 93 Wn.2d 301,305, 609 P.2d 1353

(1980). Within three years of Barton, our legislature did what Padilla ultimately

did in 2010-it rejected the direct-versus~collateral distinction as applied to

immigration consequences, declaring that a noncitizen defendant must be warned

about immigration consequences before pleading guilty. 1 LAws OF 1983, ch. 199

§ 1(1), codified at RCW 10.40.200(1). To give effect to this statute, the standard

plea form in CrR 4.2 was promptly amended to include a statement warning

noncitizen defendants of possible immigration consequences. That warning

statement is not, itself, the required advice; it merely creates a rebuttable

1 Contrary to the dissent's suggestion, we are not holding that the legislature has the authority to define the scope of constitutionally effective counsel. Rather, we are giving effect to our own precedent, which holds that a defense attorney has a basic duty to know and apply relevant statutes and professional norms, and the unreasonable failure to fulfill that duty is constitutionally deficient. E.g., State v. Kyllo, 166 Wn.2d 856, 862,215 P.3d 177 (2009); see also Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (deficient performance where counsel failed to file a timely suppression motion because he did not engage in any pretrial discovery and therefore was not aware of the evidence to be presented).

8 In re Pers. Restraint o.fTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

presumption the defendant has been properly advised. RCW 10.40.200(2);

Sandoval, 171 Wn.2d at 173.

RCW 10.40.200's plain language gives noncitizen defendants the

unequivocal right to advice regarding immigration consequences and necessarily

imposes a correlative duty on defense counsel to ensure that advice is provided.

State v. Butler, 17 Wn. App. 666, 675, 564 P.2d 828 (1977) ("Beyond the

defendant's power oflmowledge and intelligence, the duty to protect the defendant

lies first and foremost with his attorney."). While defense counsel's duty to advise

regarding immigration consequences is imposed by statute, "[r]easonable conduct

for an attorney includes carrying out the duty to research the relevant law." State

v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at

690-91). In many cases 2 defense counsel's failure to fulfill his or her statutory

duty may be due to an unreasonable failure to research or apply RCW 10.40.200,

and there is no conceivable tactical or strategic purpose for such a failure.

Where an attorney unreasonably fails to research or apply relevant statutes

without any tactical purpose, that attorney's performance is constitutionally

deficient. See, e.g., id. at 865-69 (deficient performance where reasonably

2 There may be situations where defense counsel's failure to provide the advice required by RCW 10.40.200 is objectively reasonable and thus not deficient. See People v. Pozo, 746 P.2d 523, 529 (Colo. 1987). And of course, even if deficient, counsel's performance is not constitutionally ineffective unless it is also prejudicial. Kyllo, 166 Wn.2d at 862.

9 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4

adequate research would have shown that a former pattern jury instruction

misstated the law on self-defense); State v. Aha, 137 Wn.2d 736, 745-46, 975 P.2d

512 (1999) (deficient performance where reasonably adequate research would have

prevented the possibility of conviction based on acts predating the relevant

statute's effective date). Cf State v. Paredez, 2004-NMSC-036, 136 N.M. 533,

101 P.3d 799, 805 (holding that the failure to advise a noncitizen defendant about

immigration consequences as required by N.M. CODER. 5-303(E)(5) could be

ineffective assistance); RPC 1.1 cmt. 2 ("Perhaps the most fundamental legal skill

consists of determining what kind of legal problems a situation may involve, a skill

that necessarily transcends any particular specialized knowledge."). Indeed, "[a]n

attorney's ignorance of a point of law that is fundamental to his case combined

with his failure to perform basic research on that point is a quintessential example

of unreasonable performance under Strickland." Hinton v. Alabama, 571 U.S._,

134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014). The unreasonable failure to

research and apply RCW 10.40.200 is as constitutionally deficient as the

unreasonable failure to research and apply any relevant statute.

This resolves Padilla's threshold question as applied to Washington law.

Padilla thus becomes a "garden-variety application[ ] of the test in Strickland' that

simply refines the scope of defense counsel's constitutional duties as applied to a

specific fact pattern. Chaidez, 133 S. Ct. at 1107. Because Padilla did not

10 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

announce a new rule under Washington law, it applies retroactively to matters on

collateral review under Teague.

2. Padilla effected a significant change in Washington law

Whether a changed legal standard applies retroactively is a distinct inquiry

from whether there has been a significant change in the law. An old rule whose

new application significantly changes the law is unusual, but not impossible, as

this case demonstrates. Padilla's application of the old Strickland test significantly

changed state law by superseding Washington appellate cases that apparently

foreclosed the possibility that defense counsel's unreasonable and prejudicial

failure to fulfill his or her duties under RCW 10.40.200 could ever be

constitutionally ineffective.

(a) A "new" rule under Teague is not always the same as a "significant change" in the law under RCW 10.73.100(6)

There is unquestionably a substantial overlap between "new" Teague rules

and "significant changes" in state law, but they are two separate inquiries: "RCW

10. 73.1 00( 6) sets forth three conditions that must be met before a petitioner can

overcome the one-year time bar: (1) a [significant] change in the law (2) that is

material and (3) that applies retroactively." In re Pers. Restraint of Gentry, 179

Wn.2d 614, 625,316 P.3d 1020 (2014). While we have used the Teague analysis

and its definition of a "new" rule to determine whether a constitutional rule applies

11 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4

retroactively, id. at 626, we have never imported Teague's definition of a new rule

into our analysis of whether there has been a significant change in the law.

In fact, we have always defined the two phrases differently. A significant

change in state law occurs "where an intervening opinion has effectively

overturned a prior appellate decision that was originally determinative of a material

issue." In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000).

By comparison, new rules for Teague purposes "are those that 'break[] new

ground or impose[] a new obligation on the States or the Federal government

[or] if the result was not dictated by precedent existing at the time the defendant's

conviction became final."' State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627

(2005) (alterations in original) (quoting Teague, 489 U.S. at 301). "If before the

opinion is announced, reasonable jurists could disagree on the rule of law, the

opinion is new." !d. (citing Beard v. Banks, 542 U.S. 406, 411, 124 S. Ct. 2504,

159 L. Ed. 2d 494 (2004)).

Using different definitions for a "significant change" in state law and a

"new" rule under Teague is not only fully supported by the plain language ofRCW

10.73.100(6) and our own precedent, it also makes good sense in light ofthe

different purposes these phrases serve in our analysis. The "significant change"

language is intended to reduce procedural barriers to collateral relief in the

interests of fairness and justice. Greening, 141 Wn.2d at 697 ("While litigants

12 In re Pers. Restraint o.fTsai, No. 88770-5 In re Pers. Restraint o.f.Jagana, No. 89992-4

have a duty to raise available arguments in a timely fashion and may later be

procedurally penalized for failing to do so ... they should not be faulted for having

omitted arguments that were essentially unavailable at the time."). Meanwhile,

Teague's broad definition of "new" rules that usually do not apply retroactively is

intended to strengthen procedural barriers to collateral relief in the interests of

finality and comity. Danforth v. Minnesota, 552 U.S. 264,279-81, 128 S. Ct.

1029, 169 L. Ed. 2d 859 (2008).

A "significant change" in state law and a "new" constitutional rule of

criminal procedure are different phrases with different meanings that serve

different purposes. We will not conflate them. Gentry, 179 Wn.2d at 625; cf

Commonwealth v. Sylvain, 466 Mass. 422, 433-34, 995 N.E.2d 760 (2013)

(retaining the general Teague framework but declining to adopt the expanded

definition of a "new" rule that was articulated after Teague).

(b) Padilla significantly changed Washington law

It is true that in most cases simply applying the ordinary Strickland test to

new facts will announce neither new rules nor significant changes in the law. See

In re Pers. Restraint ofTuray, 150 Wn.2d 71, 83, 74 P.3d 1194 (2003) (Where an

opinion "simply applies settled law to new facts, it does not constitute a significant

change in the law."). However, Washington appellate cases issued before Padilla

apparently foreclosed any possibility that the unreasonable, prejudicial failure to

13 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

provide the advice required by RCW 10.40.200 could ever be ineffective assistance

of counsel. Padilla superseded these decisions, significantly changing state law.

The first appellate case to explicitly consider whether RCW 10.40.200 has

any implications on the constitutional effectiveness of defense counsel is State v.

Holley, 75 Wn. App. 191, 876 P.2d 973 (1994). In that case, the Court of Appeals

held that a reference hearing was required to determine whether the defendant's

guilty plea was entered in violation ofRCW 10.40.200. Id. at 200-01. Even

though it decided the case on statutory grounds, Holley chose to address the

constitutional implications ofRCW 10.40.200 and summarily stated in dictum that

there were none. ld. at 196-98. To support this proposition, Holley relied on State

v. Malik, 37 Wn. App. 414, 680 P.2d 770 (1984). Malik was based on facts

occurring before RCW 10.40.200's effective date and so did not consider the

impact of that statute on the duties of defense counsel. State v. Littlefair, 112 Wn.

App. 749, 767, 51 P.3d 116 (2002). As discussed above, with the enactment of

RCW 10.40.200, the unreasonable failure to research and apply that statute became

constitutionally deficient performance. Holley's dictum was thus erroneous.

The only decision of this court that touches on the issue presented here is In

re Personal Restraint ofYim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999).

However, Yim dealt with a claim that the defendant received incorrect advice,

rather than no advice, regarding immigration consequences. !d. Padilla is not

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limited to incorrect advice; it explicitly holds that providing no advice regarding

immigration consequences is also deficient. Padilla, 559 U.S. at 370. Further, Yim

discussed only the voluntariness of the defendant's plea without reference to the

standard for determining ineffective assistance of counsel, and Yim did not

consider RCW 10.40.200. Yim, 139 Wn.2d at 588-90 (citing State v. Ward, 123

Wn.2d 488, 512-13, 869 P.2d 1062 (1994); Malik, 37 Wn. App. at 416). Yim's

analysis does not address the issues presented where a noncitizen asserts his or her

attorney unreasonably failed to provide any advice about the immigration

consequences of pleading guilty as required by RCW 10.40.200.

Nevertheless, Washington appellate courts have routinely rejected the

possibility that such a failure could ever be ineffective assistance of counsel. Each

of those decisions relies on cases analyzing guilty pleas entered before the

effective date ofRCW 10.40.200, Holley's erroneous dictum, or Yim's

distinguishable analysis. See State v. Jamison, 105 Wn. App. 572, 591-92, 595, 20

P.3d 1010 (2001) (citing Yim, 139 Wn.2d at 588; Holley, 75 Wn. App. at 198);

State v. Martinez-Lazo, 100 Wn. App. 869, 876-77,999 P.2d 1275 (2000) (citing

Yim, 139 Wn.2d at 588; Holley, 75 Wn. App. at 197; In re Pers. Restraint of

Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988)), abrogation recognized by

Chaidez, 133 S. Ct. at 1109 n.8; Holley, 75 Wn. App. at 197-98 (citing Malik, 37

Wn. App. at 416-17); Peters, 50 Wn. App. at 705 (noting the guilty plea was

15 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint o.f.Jagana, No. 89992-4

entered before RCW 10.40.200's effective date); see generally Littlefair, 112 Wn.

App. at 766-69 (discussing the history ofRCW 10.40.200, Malik, and its progeny).

Padilla superseded the theory underlying these decisions--that "anything short of

an affirmative misrepresentation by counsel of the plea's deportation consequences

could not support the plea's withdrawal." Sandoval, 171 Wn.2d at 170 n.1. This

was a significant change in Washington law.

B. Jagana is entitled to an evidentiary hearing on the merits

A significant, material, retroactive change in the law exempts a PRP from

RCW 10.73.090(1)'s one-year time bar for collateral attacks. RCW 10.73.100(6).

However, in light of the arguments currently presented for our review, only Jagana

is entitled to an evidentiary hearing on the merits of his PRP.

J agana alleges that his trial attorney unreasonably failed to ascertain

Jagana's immigration status and did not provide him with any guidance as to any

possible immigration consequences of his guilty plea, and further alleges that these

failures rendered Jagana's plea involuntary. These allegations, if true, would

establish that Jagana did not receive effective assistance of counsel in deciding

whether to plead guilty. As discussed above, Washington courts would have

rejected Jagana's claim before Padilla was issued. Jagana's failure to raise this

apparently unavailable argument cannot render his PRP procedurally barred.

Greening, 141 Wn.2d at 697. He is entitled to an evidentiary hearing.

16 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

However, Washington courts have long recognized that where a defendant

relies on his or her attorney's incorrect advice about the immigration consequences

of pleading guilty, the defendant's plea may be rendered involuntary and

withdrawn. Yim, 139 Wn.2d at 588. With the assistance of an attorney, Tsai filed

a motion to withdraw his guilty plea in 2008, alleging his guilty plea was

involuntary because his attorney incorrectly advised him about the immigration

consequences. The trial court denied this motion, not because it was legally

unav·ailable on the merits, but because the trial court decided it was untimely and

not subject to equitable tolling. Perhaps the trial court erred in 2008, but Tsai did

not appeal that decision and neither Padilla nor Sandoval addresses equitable

tolling. Based on the arguments currently presented for our review, Tsai has not

shown he is entitled to an evidentiary hearing on the merits of his PRP. See RAP

16.4(d); Greening, 141 Wn.2d at 697.

CONCLUSION

This case is not a faceless one that bears no consequences. Numerous

noncitizen defendants have benefited from the clear statutory requirement that

defense counsel has a duty to advise them about the immigration consequences of

pleading guilty. However, numerous meritorious claims that defense counsel

unreasonably failed to fulfill this duty have been rejected based on the mistaken

belief that RCW 10.40.200 has no constitutional implications. Now that this

17 In re Pers. Restraint ofTsai, No. 88770-5 In re .Pers. Restraint of Jagana, No. 89992-4

mistaken belief has finally been corrected, holding such meritorious claims are

procedurally barred would deprive many others of the opportunity to have the

merits of their constitutional claims reviewed. In light of the legislature's long-

standing commitment to ensuring noncitizen defendants understand the

immigration consequences of conviction and this court's long-standing

commitment to ensuring criminal defendants receive effective assistance of

counsel, such an outcome would be unjust and fall short of the values underpinning

our state statutory framework.

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WE CONCUR:

19 In re Pers. Restraint ofTsai In re Pers. Restraint of Jagana

No. 88770-5 (consolidated with No. 89992-4)

OWENS, J. (dissenting) - In 1992, we adopted the United States Supreme

Court's method for determining when a constitutional rule that arises out of new case

law may apply retroactively. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326-

27, 823 P.2d 492 (1992). The Court's method comes from Teague v. Lane, 489 U.S.

288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and under that method only

settled constitutional rules apply retroactively. New constitutional rules of criminal

procedure do not apply retroactively. Id. In this case, both Tsai and Jagana ask that

we apply a constitutional rule that arose out of new case law-Padilla v. Kentucky,

559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)-retroactively to them.

In Padilla, the United States Supreme Court held that if a defendant's attorney

fails to advise the defendant of the immigration consequences of pleading guilty, it

violates the defendant's right to the effective assistance of counsel under the Sixth

Amendment to the United States Constitution. Id. at 374. Thus, the question under

our retroactivity framework is whether that holding constituted a new constitutional In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

rule in Washington. To determine that, we must assess whether our courts interpreted

the Sixth Amendment to require attorneys to advise their clients of the immigration

consequences of pleading guilty prior to Padilla.

As I explain below, our case law shows that prior to Padilla, Washington

courts had held that if an attorney failed to advise his or her client of the immigration

consequences of pleading guilty, it was not a violation of the defendant's Sixth

Amendment right to the effective assistance of counsel. Although some may disagree

with those holdings, that was the law in Washington prior to Padilla. Thus, Padilla

represented a new constitutional rule of criminal procedure in Washington. The

United States Supreme Court came to this same conclusion when it resolved this exact

question in the federal context. See Chaidez v. United States,_ U.S._, 133 S. Ct.

1103, 1113, 185 L. Ed. 2d 149 (2013). Because Padilla is a new constitutional rule of

criminal procedure, it cannot be applied retroactively to the petitioners.

The majority avoids this result by distorting the historical scope of Washington

constitutional law regarding ineffective assistance of counsel. The majority relies on

a Washington statute-RCW 10.40.200-to hold that Padilla represented a settled

constitutional rule in Washington, and that Padilla may therefore be applied

retroactively. That is mystifying, as Teague requires us to determine whether a

constitutional rule of criminal procedure is retroactive, not a statutory rule. RCW

10.40.200 tells us nothing about how the Sixth Amendment was interpreted in

2 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4 Owens, J., Dissenting

Washington prior to Padilla. Although the majority may believe that Washington

courts should have interpreted the Sixth Amendment to require attorneys to advise

their clients of the immigration consequences of pleading guilty because ofRCW

10.40.200, that was not the reality of Washington constitutional law prior to Padilla.

It is understandable why the majority wants to avoid this difficult result, but it

is compelled by our precedent adopting the Teague analysis. Unless and until we

overturn our adoption of the Teague analysis, we are bound by it. Padilla represented

a new constitutional rule of criminal procedure in Washington. Thus, it cannot be

applied retroactively to the petitioners under Teague. I respectfully dissent.

1. Under Teague, New Constitutional Rules of Criminal Procedure Do Not Apply Retroactively

Under Teague, "[u]nless they fall within an exception to the general rule, new

constitutional rules of criminal procedure will not be applicable to those cases which

have become final before the new rules are announced." 489 U.S. at 310. "Only

when we apply a settled rule may a person avail herself of the decision on collateral

review." Chaidez, 133 S. Ct. at 1107. A rule is new '"when it breaks new ground or

imposes a new obligation' on the government." Id. (quoting Teague, 489 U.S. at

301 ). Put differently, "a case announces a new rule if the result was not dictated by

precedent existing at the time the defendant's conviction became final." Teague, 489

U.S. at 301.

3 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

2. As the United States Supreme Court Has Held, Padilla Was a New Rule in Jurisdictions (Like Washington) That Previously Held That Advice about Immigration Consequences Was Categorically Removed from the Scope of the Sixth Amendment

Prior to Padilla, both federal courts and our courts had concluded that an

attorney's advice about the immigration consequences of pleading guilty was

categorically removed from the scope of the Sixth Amendment. As the United States

Supreme Court said, state and lower federal courts had "almost unanimously

concluded that the Sixth Amendment [did] not require attorneys to inform their clients

of a conviction's collateral consequences, including deportation." Chaidez, 133 S. Ct.

at 1109. Washington was one ofthose states. See State v. Martinez-Lazo, 100 Wn.

App. 869, 876-78, 999 P.2d 1275 (2000) (holding that Martinez-Lazo did not receive

ineffective assistance of counsel because "a defendant need not be advised of the

possibility of deportation," which is merely a collateral consequence). The United

States Supreme Court recently analyzed whether Padilla created a "'new rule"' under

Teague in Chaidez. 133 S. Ct. at 1107. Because our courts' interpretation of the

Sixth Amendment was the same as the federal courts, our Teague analysis should

mirror the United States Supreme Court's Teague analysis in Chaidez.

In Chaidez, Chaidez pleaded guilty to deportable offenses, but her attorney

failed to advise her ofthe immigration consequences of pleading guilty. !d. at 1106.

Her conviction became final in 2004. !d. In 2009, after immigration proceedings

4 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4 Owens, J., Dissenting

commenced against her, she filed a writ of coram nobis 1 in federal district court,

arguing ineffective assistance of counsel under the Sixth Amendment. !d. The Court

decided Padilla while Chaidez's petition was still pending, and the Court granted her

petition for certiorari to determine whether Padilla applied retroactively to her. Jd. at

1106-07.

In finding that Padilla created a new rule (and thus that it could not be applied

retroactively), the Court's analysis hinged on the distinction between defense

counsel's duty to inform clients about deportation consequences as a matter of

professional competence and defense counsel's requirements under the Sixth

Amendment. See id. at 1108. The Court noted that "had Padilla merely made clear

that a lawyer who neglects to inform a client about the risk of deportation is

professionally incompetent," then Padilla would not have created a new rule. !d.

Indeed, in Padilla, the Court noted that the plea form used by Kentucky trial courts

already "provides notice of possible immigration consequences" and that many other

states (including Washington) "require trial courts to advise defendants of possible

immigration consequences." 559 U.S. at 374 n.15. However, in Chaidez, the Court

1 Chaidez filed a writ of coram nobis instead of habeas relief because she was no longer "'in custody"' and therefore could not seek habeas relief. Chaidez, 133 S. Ct. at 1106 n.l (citing 28 U.S.C. §§ 2255, 2241). The Court assumed without deciding that nothing in the case turned "on the difference between a coram nobis petition and a habeas petition." !d.

5 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4 Owens, J., Dissenting

noted that "Padilla did something more." 133 S. Ct. at 1108. Padilla considered

whether "advice about deportation" was "'categorically removed' from the scope of

the Sixth Amendment right to counsel because it involved only a 'collateral

consequence' of a conviction, rather than a component of the criminal sentence." Id.

(quoting Padilla, 559 U.S. at 366). In other words, Padilla broke new ground by

determining that attorneys are required to inform their clients about the immigration

consequences of pleading guilty under the Sixth Amendment.

As discussed above, Washington courts, like the federal courts and many other

state courts prior to Padilla, "concluded that the Sixth Amendment [did] not require

attorneys to inform their clients of a conviction's collateral consequences, including

deportation." Id. at 1109; Martinez-Lazo, 100 Wn. App. at 876-78. Only Colorado

and New Mexico held that the Sixth Amendment required attorneys to inform their

clients of a conviction's collateral consequences. Chaidez, 133 S. Ct. at 1109 & n.9

(citing People v. Pozo, 746 P.2d 523, 527-29 (Colo. 1987); State v. Paredez, 2004-

NMSC-036, 136 N.M. 533, 539, 101 P.3d 799). Since our courts' interpretation of

the Sixth Amendment was the same as the federal courts, our Teague analysis here

should mirror the United States Supreme Court's Teague analysis in Chaidez. Thus,

like the Supreme Court, I would hold that Padilla created a new rule in Washington

and cannot be applied retroactively under Teague. The majority's conclusion to the

contrary is erroneously based on statutory authority, as explained below.

6 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

3. The Majority Fundamentally Errs by Conflating Statutory and Constitutional Authority

As discussed above, Washington has long required trial courts and attorneys to

inform defendants of the immigration consequences of pleading guilty as a matter of

practice and professional competence pursuant to a statute. However, we never

required that practice under the Sixth Amendment until we decided State v. Sandoval,

171 Wn.2d 163, 249 P.3d 1015 (2011), in light of Padilla. The majority

fundamentally errs by giving a statutory attorney practice standard the same legal

authority as a constitutional attorney practice standard for Teague retroactivity

purposes. That is simply not correct under Teague. To determine retroactivity under

Teague, we must assess whether a constitutional rule of criminal procedure is settled

or new, not whether a statutory rule is settled or new.

In 1983, our legislature passed a bill requiring that defendants be advised of

immigration consequences before pleading guilty. LAWS OF 1983, ch. 199, § 1(2)

(currently codified as RCW 10.40.200(2)). That being said, our courts have

consistently held "that a deportation proceeding that occurs subsequent to the entry of

a guilty plea is merely a collateral consequence of that plea." In re Pers. Restraint of

Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). Accordingly, before Padilla and

Sandoval, our courts had concluded that the Sixth Amendment did not require

attorneys to inform their clients of a conviction's collateral consequences, including

7 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

deportation. See Martinez-Lazo, 100 Wn. App. at 876-78 (holding that Martinez-Lazo

did not receive ineffective assistance of counsel because "a defendant need not be

advised of the possibility of deportation," which is merely a collateral consequence).

As discussed above, we did not recognize that the Sixth Amendment required

attorneys to give competent advice about deportation consequences until Sandoval, in

light of Padilla. See Sandoval, 171 Wn.2d at 169-71.

The majority fundamentally errs by asserting that in 1983, "our legislature did

what Padilla ultimately did in 201 0-it rejected the direct-versus-collateral distinction

as applied to immigration consequences, declaring that a noncitizen defendant must be

warned about immigration consequences before pleading guilty." Majority at 8. The

legislature did not reject the "direct-versus-collateral distinction" in enacting what is

now RCW 10.40.200 because it did not (and does not) have the constitutional

authority to declare what the Sixth Amendment means for determining what

constitutes ineffective assistance of counsel-that is our job. Marbury v. Madison, 5

U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803) ("It is, emphatically, the province and

duty of the judicial department, to say what the law is."). Although the legislature can

set practice standards for attorneys, only Washington courts can determine whether an

attorney's violation of a legislative standard constitutes ineffective assistance under

the Sixth Amendment. And in Washington, as discussed above, our courts had decided

that an attorney failing to give advice about immigration consequences (as required by

8 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

RCW 10.40.200) was categorically removed from the scope of the Sixth Amendment.

Martinez-Lazo, 100 Wn. App. at 876-78.

Despite the existence ofRCW 10.40.200(2), the Court of Appeals' decision in

Martinez-Lazo accurately reflected the scope of Washington constitutional law prior

to Padilla. Even Martinez-Lazo "acknowledge[ d) the general rule in Washington that

deportation is a collateral consequence"; instead, he argued that because "his

deportation [was] certain, [it was] therefore no longer a collateral consequence." !d.

at 87 6-77. Martinez-Lazo' s argument eschewing the distinction between direct and

collateral consequences in the deportation context was not recognized until Padilla

and Sandoval. Thus, although Washington statutory law provided that attorneys were

required to inform their clients of immigration consequences, it was not a

constitutional requirement under our state courts' interpretation of the Sixth

Amendment. That distinction should be dispositive of our Teague analysis-we are

determining whether a constitutional rule of criminal procedure is retroactive, not a

statutory rule.

It should be evident from the majority's own citations that it has no authority to

support its holding. The only pre-Padilla case the majority cites that actually held

that it was ineffective assistance of counsel for an attorney to fail to advise his or her

client of the immigration consequences of pleading guilty is from New Mexico.

Paredez, 136 N.M. 533. As noted above, that is one of the two states the United

9 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting

States Supreme Court discussed in Chaidez that did not consider deportation to be a

collateral consequence. 133 S. Ct. at 1109 & n.9.

Thus, I would conclude that Padilla created a new rule in Washington, and I

would therefore hold that the rule imposed by Padilla is not retroactive under Teague.

Accordingly, I would find the petitioners' personal restraint petitions time barred.

CONCLUSION

I recognize that "[t]his case is not a faceless one that bears no consequences."

Majority at 17. But we are a court of law, and we are required to faithfully apply our

precedent. Our cases have consistently applied the Teague analysis to decide whether

constitutional rules apply retroactively. Under a proper Teague analysis here, we do

not look to whether our courts should have been interpreting the Sixth Amendment to

require attorneys to inform their clients of the deportation consequences of pleading

guilty. Rather, we must assess how our courts actually interpreted the Sixth

Amendment and then decide whether Padilla broke new ground from our courts' prior

approach. Prior to Padilla, our courts had concluded that the Sixth Amendment did

not apply to an attorney's advice about the immigration consequences of pleading

guilty. Thus, Padilla created a new rule in Washington. I would therefore hold that

Padilla may not be applied retroactively under Teague. Accordingly, I would find

Tsai's and Jagana's personal restraint petitions time barred and affirm the Court of

Appeals.

10 In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4 Owens, J., Dissenting