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challenging a deferred judgment that has not been revoked.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.