People v. Torres

2016 COA 169, 410 P.3d 690

• Court: Colorado Court of Appeals
• Decided: November 17, 2016
• Docket: 15CA1507
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2016COA169

Court of Appeals No. 15CA1507 Weld County District Court No. 96CR819 Honorable Carol Glowinsky, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Israel Chavez-Torres,

Defendant-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE DUNN Taubman and Casebolt*, JJ., concur

Announced November 17, 2016

Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016. ¶1 In People v. Martinez-Huerta, 2015 COA 69, ¶ 18, a division of

this court concluded that a defendant’s allegation that he pleaded

guilty based upon his counsel’s “affirmative and erroneous” advice

regarding the immigration consequences of such a plea warranted a

hearing to determine whether the defendant could establish

justifiable excuse or excusable neglect for his late postconviction

motion.

¶2 Relying on that case, the district court here summarily denied

the untimely Crim. P. 35(c) motion of defendant, Israel

Chavez-Torres, concluding as a matter of law that Martinez-Huerta

foreclosed a hearing to determine whether Chavez-Torres’

allegations, if true, would establish justifiable excuse or excusable

neglect.

¶3 Because we do not read Martinez-Huerta the same way, and

because we further conclude that Chavez-Torres alleged facts that,

if true, would establish justifiable excuse or excusable neglect, we

reverse and remand the case for further proceedings.

I. Background

¶4 Chavez-Torres is a citizen of Mexico who came to the United

States with his family when he was a child. While in high school,

1 Chavez-Torres pleaded guilty to first degree criminal trespass. The

trial court sentenced him to probation, which he successfully

completed.

¶5 Seventeen years after his criminal trespass conviction, the

United States Department of Homeland Security initiated removal

proceedings, alleging that Chavez-Torres was not legally present in

the United States and had been convicted of a crime involving moral

turpitude.

¶6 Chavez-Torres consulted with an immigration attorney who

advised him that because of his conviction, he was not eligible for

cancellation of removal from the United States. The immigration

attorney also advised him that his plea counsel may have been

ineffective in not advising him of the immigration consequences of

his guilty plea.

¶7 Chavez-Torres moved for postconviction relief from his

criminal trespass conviction under Crim. P. 35(c). He alleged that,

despite the fact that he had informed plea counsel that he was not a

citizen of the United States, counsel had advised him to accept the

plea agreement without telling him that the guilty plea carried a

risk of adverse immigration consequences. He claimed that, had

2 plea counsel properly advised him of this risk, he would have

rejected the plea offer and insisted on going to trial. As a result, he

asserted that his plea and conviction were constitutionally infirm.

¶8 Chavez-Torres acknowledged that his postconviction motion

was untimely. But he alleged that the untimeliness resulted from

circumstances amounting to justifiable excuse or excusable neglect

because he had no reason to question the constitutional validity of

his criminal trespass conviction until the initiation of the removal

proceedings. It was only then, he alleged, that he learned his

trespass conviction prevented him from remaining in the United

States and that his plea counsel may have rendered ineffective

assistance.

¶9 The district court summarily denied Chavez-Torres’ motion. It

found that (1) the motion was filed beyond the three-year deadline

for postconviction challenges; (2) given the passage of time, “the

prejudice to the state’s case would be great”; and (3) Chavez-Torres

had failed to assert facts “amounting to justifiable excuse or

excusable neglect.”

3 II. Justifiable Excuse or Excusable Neglect

¶ 10 Chavez-Torres contends that the district court erred in

summarily denying his postconviction motion based on the

statutory time bar because (1) he asserted facts that, if true, would

establish justifiable excuse or excusable neglect; and (2) the finding

that the State would suffer “great” prejudice has no record support.

We agree as to both.

A. Governing Standards

¶ 11 A defendant has three years to file a Crim. P. 35(c) motion

challenging a non-class-one felony conviction. § 16-5-402(1),

C.R.S. 2016. But the deadline may be extended if “the failure to

seek relief within the applicable time period was the result of

circumstances amounting to justifiable excuse or excusable

neglect.” § 16-5-402(2)(d).

¶ 12 To merit a hearing on the exception to the three-year deadline,

a defendant must allege facts that, if true, would establish

justifiable excuse or excusable neglect. Close v. People, 180 P.3d

1015, 1019 (Colo. 2008); People v. Wiedemer, 852 P.2d 424, 440

n.15 (Colo. 1993). The defendant need not set forth the evidentiary

support for his allegations. Close, 180 P.3d at 1019.

4 ¶ 13 In determining whether justifiable excuse or excusable neglect

exists, the district court must consider “the particular facts of [the]

case, so as to give effect to the overriding concern that defendants

have a meaningful opportunity to challenge their convictions as

required by due process.” Id. To facilitate such a case-specific

review, our supreme court has identified a list of non-exhaustive

factors that a district court must consider in addressing justifiable

excuse or excusable neglect. Wiedemer, 852 P.2d at 442. In

particular, the court must take into consideration whether

1. circumstances or outside influences existed that prevented a

challenge to the prior conviction;

2. a defendant having reason to question the constitutionality of

a conviction investigated its validity and took advantage of

relevant avenues of relief that were available;

3. a defendant had any previous need to challenge a conviction

and either knew that it was constitutionally infirm or had

reason to question its validity;

4. a defendant had other means of preventing the government’s

use of the conviction, so that a postconviction challenge was

previously unnecessary; and

5 5. the passage of time affects the State’s ability to defend against

the challenge.

Id. at 441-42.

¶ 14 Whether a defendant can ultimately establish justifiable

excuse or excusable neglect is a question of fact for the district

court. Id. at 443. But whether the defendant alleged facts that, if

true, would constitute justifiable excuse or excusable neglect, and

therefore merit a hearing on the issue, is a question that we review

de novo. Martinez-Huerta, ¶ 8; see Close, 180 P.3d at 1019, 1022.

B. The Postconviction Allegations

¶ 15 Chavez-Torres’ postconviction motion alleged that (1) he “told

[his counsel] that he was not a citizen of the United States”; (2) “[o]n

the advice of his attorney,” he accepted the plea offer; (3) his

attorney “did not advise him that the plea would prevent him from

becoming a lawful permanent resident” or “prevent him from

applying for cancel[l]ation of removal”; (4) he was “unaware” that

the plea would “prevent him from remaining in the United States”;

(5) he successfully completed his probation in 1998; and (6) he did

not learn that his conviction had adverse immigration consequences

until the removal proceedings were initiated. In support of his

6 postconviction motion, Chavez-Torres attached his plea agreement,

which — unlike some such agreements — contained no notice of

possible immigration consequences. And he attached his plea

transcript, which again did not refer to possible immigration

consequences.1

¶ 16 The prosecution did not respond to the postconviction motion.

¶ 17 Despite the uncontested allegations, the district court

summarily denied the postconviction motion. Specifically, relying

on Martinez-Huerta, the district court concluded, as a matter of law,

that an attorney’s failure to advise a client of adverse immigration

consequences “does not establish justifiable excuse or excusable

neglect.” And it concluded that the prejudice to the State’s case

“would be great.”

C. Martinez-Huerta

¶ 18 Martinez-Huerta did not address the issue presented here.

That is, it did not consider whether allegations that an attorney

1 The record also contains the district court’s disposition hearing checklist. Although the form has check marks next to several boxes related to Chavez-Torres’ plea, the box identified as “POZO advisement” is not checked. See People v. Pozo, 746 P.2d 523, 529 (Colo. 1987) (recognizing that counsel has a duty to investigate the immigration consequences for a known non-citizen client).

7 affirmatively advised her non-citizen client to accept a plea, without

also advising the client of related possible immigration

consequences, are sufficient to warrant a hearing on justifiable

excuse or excusable neglect. Rather, Martinez-Huerta concluded

that the defendant’s allegation there — that his counsel gave him

“affirmative and erroneous” advice — was sufficient to warrant a

justifiable excuse or excusable neglect. Id. at ¶ 18. We thus do not

agree with the district court that Martinez-Huerta stands for the

general proposition that an attorney’s mere failure to advise a client

of adverse immigration consequences, under the circumstances

alleged here, is insufficient, as a matter of law, to establish

justifiable excuse or excusable neglect.

¶ 19 To be sure, and as the People stress, Martinez-Huerta observed

that “[g]enerally, the absence of, or failure to give, advice does not

establish justifiable excuse or excusable neglect.” Id. at ¶ 17. But

the cases Martinez-Huerta relied on for this unremarkable

proposition — People v. Alexander, 129 P.3d 1051 (Colo. App.

2005), and People v. Slusher, 43 P.3d 647 (Colo. App. 2001) — are

not immigration consequence cases. And neither involved

8 situations — like this one — where an attorney has a legal duty to

advise a known, non-citizen client of possible immigration

consequences related to a guilty plea. See People v. Pozo, 746 P.2d

523, 526 (Colo. 1987) (holding that attorneys have an affirmative

duty to research relevant immigration law for their non-citizen

clients, and when the law is clear, to advise their clients regarding

the immigration consequences of a guilty plea); accord People v.

Kazadi, 284 P.3d 70, 73 (Colo. App. 2011), aff’d, 2012 CO 73; see

also Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (recognizing that

prevailing norms support “the view that counsel must advise her

client regarding the risk of deportation”).

¶ 20 In fact, Alexander held that appellate counsel has no duty to

advise a defendant of the time limitations for seeking postconviction

relief. 129 P.3d at 1056. As a result, it concluded that the absence

of such advice was not a justifiable excuse and did not excuse the

defendant’s neglect. Id. And Slusher concluded that, under the

circumstances there, an attorney’s failure to advise a defendant of

his rights under the Uniform Mandatory Disposition of Detainers

Act (UMDDA) did not constitute justifiable excuse because the

defendant did not explain why he failed to include his UMDDA

9 claim in a prior postconviction proceeding in which he was

represented by counsel. 43 P.3d at 651. We thus do not agree that

Alexander or Slusher created a per se rule that an allegation that an

attorney failed to give advice — which the attorney has an

affirmative legal duty to give — is insufficient to warrant a hearing

to determine whether a defendant can demonstrate justifiable

excuse or excusable neglect.

¶ 21 The People next argue that Chavez-Torres’ “ignorance of the

law” should not excuse his failure to file a timely postconviction

motion. In so arguing, the People rely on People v. White, 981 P.2d

624, 626 (Colo. App. 1998), and People v. Vigil, 955 P.2d 589, 591-

92 (Colo. App. 1997). But White and Vigil are unhelpful for the

same reason that Alexander and Slusher are not helpful. These

cases do not involve counsel’s affirmative legal duty to advise a

client regarding the risk of immigration consequences. Instead,

they recognize the principle that a defendant’s ignorance regarding

the postconviction time bar cannot constitute justifiable excuse or

excusable neglect. White, 981 P.2d at 626; see Vigil, 955 P.2d at

591-92.

10 ¶ 22 But Chavez-Torrez has not alleged he should be excused

simply because he was unaware of a statutory deadline. He alleged

that his plea counsel advised him to plead guilty to criminal

trespass, knowing he was not a citizen and without satisfying her

legal duty to advise him of the related immigration consequences.

And until he became aware of plea counsel’s alleged failure to fulfill

her legal duty, he asserts that he had no reason to question the

constitutionality of his conviction. Chavez-Torres thus alleged facts

directly implicating two Wiedemer factors. See Wiedemer, 852 P.2d

at 441 (whether and when the defendant had reason to question the

constitutionality of his conviction). Such particular facts are the

type our supreme court cautioned “must” be considered “so as to

give effect to the overriding concern that defendants have a

meaningful opportunity to challenge their convictions as required

by due process.” Close, 180 P.3d at 1019.

¶ 23 Under these circumstances and in light of Chavez-Torres’

Crim. P. 35(c) allegations, we do not agree that Martinez-Huerta

forecloses a hearing to determine whether Chavez-Torres can

establish justifiable excuse or excusable neglect for his otherwise

untimely postconviction motion.

11 D. The Remaining Factors

¶ 24 As a second basis for summarily denying Chavez-Torres’

postconviction motion, the district court found that “the prejudice

to the state’s case would be great” due to the passage of time. The

record, however, does not support this factual finding.

¶ 25 Whether relevant files and witnesses exist is a factual

inquiry that must be determined on a case-by-case basis. See

Wiedemer, 852 P.2d at 441; Martinez-Huerta, ¶ 13. The answer will

not always be the same.

¶ 26 Although it appears that Chavez-Torres’ postconviction motion

was sent to the district attorney’s office, the prosecution did not

object or respond. Nor did the district court seek or require a

response. And — as Chavez-Torres points out — the record here

includes the plea agreement and the transcripts of the providency

hearing and sentencing proceedings. He also alleged that plea

counsel is still a practicing Colorado attorney. Absent a response

from the prosecution, we cannot say whether this record is

sufficient for the prosecution to defend the postconviction motion.

At any rate, the existing record does not support the district court’s

finding that the State will suffer “great” prejudice.

12 ¶ 27 Finally, other than the passage of time, it is unclear whether

the district court considered and weighed the remaining Wiedemer

factors. See Wiedemer, 852 P.2d at 442 n.20 (“[T]he best approach

for determining whether a defendant satisfies the justifiable excuse

or excusable neglect standard under § 16-5-402(2)(d) is a weighing

of the various interests at stake.”). Specifically, Chavez-Torres

alleged that having followed his counsel’s advice to accept the plea

offer, without discussion of the immigration consequences, he had

no reason to question the constitutional validity of his guilty plea

until he consulted with an immigration attorney about his removal

proceedings. Chavez-Torres thus alleged facts that implicate the

second and third Wiedemer factors (whether and when he had

reason to question the constitutionality of his conviction). But the

record is silent with respect to whether the district court considered

and weighed these factors. Cf. People v. Cordova, 199 P.3d 1, 5

(Colo. App. 2007) (concluding “the trial court appropriately

considered all the Wiedemer factors to determine justifiable excuse

or excusable neglect, and that the court’s findings are supported by

the record”). For this reason too, a remand is needed.

13 ¶ 28 Given all this, and under these circumstances, we are

“reluctant to conclude, as a matter of law, that justifiable excuse or

excusable neglect did not exist.” People v. Clouse, 74 P.3d 336, 341

(Colo. App. 2002); accord Martinez-Huerta, ¶ 24. And we are

persuaded that Chavez-Torres has “pleaded facts that warrant a

hearing on justifiable excuse or excusable neglect.”

Martinez-Huerta, ¶ 7.

III. Ineffective Assistance of Counsel

¶ 29 Even accepting that the allegations could warrant a hearing on

justifiable excuse or excusable neglect, the People urge us to affirm

the district court’s denial of Chavez-Torres’ postconviction motion

on the alternative basis that he has failed to prove the prejudice

prong of his ineffective assistance of counsel claim. Although we

may affirm a district court’s order on any basis supported by the

record, we are not persuaded to do so here.

¶ 30 The denial of a claim of ineffective assistance of counsel

without a hearing is justified if, but only if, the existing record

establishes that the defendant’s allegations, even if proven true,

would fail to establish either constitutionally deficient performance

or prejudice. Strickland v. Washington, 466 U.S. 668, 690 (1984);

14 Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). To demonstrate

prejudice in the context of a guilty plea, a defendant must show a

reasonable probability that, but for counsel’s deficient performance,

he would have rejected the plea offer and insisted on going to trial.

See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. Morones-

Quinonez, 2015 COA 161, ¶ 7. In an immigration consequences

case, such a showing requires an allegation that rejecting the plea

“would have been rational under the circumstances.” Padilla, 559

U.S. at 372.

¶ 31 Chavez-Torres alleged in his postconviction motion that

rejecting the plea offer would have been rational under the

circumstances because his entire immediate family lived in the

United States and he had no family in, or connections to, Mexico.

These unrebutted allegations sufficiently assert Strickland

prejudice. See id.; Morones-Quinonez, ¶ 12 (“[I]n the context of a

decision to forgo a guilty plea based on immigration considerations,

the defendant need only make some showing that the decision

would have been rational.”); see also Kazadi, 284 P.3d at 75 (The

defendant’s “alleged personal circumstances and lack of ties to the

Congo support[ed] his assertion that he would not have pleaded

15 guilty had he received the advice that he was constitutionally

entitled to receive.”).

¶ 32 Because Chavez-Torres has alleged facts that support his

contention that it would have been “rational under the

circumstances” to reject the plea offer had he been properly advised

of the immigration consequences, we cannot, on this record,

conclude otherwise as a matter of law.

IV. Conclusion

¶ 33 The order denying the postconviction motion is reversed, and

the case is remanded to the district court. On remand, the court

shall hold a hearing to determine whether Chavez-Torres has

established justifiable excuse or excusable neglect for his untimely

postconviction motion. If he can, the court must then consider the

merits of his postconviction motion.

JUDGE TAUBMAN and JUDGE CASEBOLT concur.