FILED DECEMBER 29, 2020 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STATE OF WASHINGTON, ) No. 37056-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DAVID MERAZ GUTIERREZ, ) ) Appellant. )
PENNELL, C.J. — David Meraz Gutierrez filed a motion for post-conviction relief
in the trial court, arguing he was denied effective assistance of counsel because his
attorney failed to provide adequate immigration advice prior to entry of a plea to
possession of a controlled substance. We agree with Mr. Gutierrez’s claim for relief
and reverse the trial court’s order to the contrary.
FACTS
Mr. Gutierrez is a citizen and national of Mexico. He has lived in the United
States since childhood and graduated high school in Kennewick, Washington in 2007.
In 2009, Mr. Gutierrez became a lawful permanent resident of the United States.
In 2014, Mr. Gutierrez was charged with one count of unlawful possession of
a controlled substance, methamphetamine. He was represented by an attorney named
Ryan Swinburnson. Originally, Mr. Gutierrez was released from custody pending trial. No. 37056-9-III State v. Gutierrez
But after he failed to appear for an omnibus hearing, a bench warrant was issued and he
was arrested. Mr. Gutierrez then pleaded guilty as charged on October 9, 2014. His
standard sentencing range was 0 to 6 months. The court imposed 30 days’ confinement.
Mr. Gutierrez did not appeal.
Roughly three years after his plea and conviction, Mr. Gutierrez was deported to
Mexico. In January 2019, Mr. Gutierrez filed a motion to vacate his sentence and
withdraw his guilty plea. The basis for the motion was that he had not been provided
adequate advice about the immigration consequences of his guilty plea.
Both Mr. Gutierrez and Mr. Swinburnson provided information relevant to
Mr. Gutierrez’s motion; they differ in their accounts. According to Mr. Gutierrez,
Mr. Swinburnson never discussed anything about immigration consequences.
Mr. Swinburnson disagreed. While he had no specific recollection of the details of
Mr. Gutierrez’s case, Mr. Swinburnson claimed his general practice was to ask clients
about whether they had any immigration concerns. If so, he would offer to put them in
contact with an immigration attorney. Mr. Swinburnson could not find any record that he
had contacted an attorney for Mr. Gutierrez. In Mr. Swinburnson’s experience, most of
his clients were more concerned about getting out of jail than immigration consequences.
Mr. Swinburnson knew that a drug possession conviction could have immigration
2 No. 37056-9-III State v. Gutierrez
repercussions. However, Mr. Swinburnson was not able to differentiate the consequences
that might be faced by a defendant with “no status at all . . . as opposed to someone who
was a legal permanent resident.” Report of Proceedings (Apr. 16, 2019) at 10.
At the evidentiary hearing on Mr. Gutierrez’s motion for post-conviction relief, the
trial court received testimony from Mr. Swinburnson and credited his account of the
interactions with Mr. Gutierrez. 1 The court found Mr. Swinburnson
advised [David] Meraz Gutierrez regarding potential immigration consequences of his plea including that his plea of guilty could have very serious negative immigration consequences to him including deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.
Clerk’s Papers at 127.
The trial court found Mr. Swinburnson’s advice legally accurate and sufficient.
The court noted immigration law is complex and Mr. Gutierrez’s “situation is not one
where the law is ‘truly clear’ that the offense of unlawful possession of a controlled
substance is clearly deportable.” Id. at 128. The court reasoned that, even with a
conviction for unlawful possession of a controlled substance, Mr. Gutierrez could have
been eligible for relief from deportation through cancellation of removal. Given this
1 Because he was deported to Mexico, Mr. Gutierrez was not available to testify at the hearing.
3 No. 37056-9-III State v. Gutierrez
circumstance, the court found Mr. Gutierrez was accurately advised that deportation
was uncertain and therefore counsel’s representation was not deficient.
The trial court went on to find that Mr. Gutierrez would have exercised his right
to trial had he been advised his offense would render him deportable. Nevertheless,
because the court found Mr. Gutierrez had not received inadequate advice, it denied
Mr. Gutierrez’s motion for relief.
Mr. Gutierrez now appeals.
ANALYSIS
The state and federal constitutions guarantee effective assistance of counsel to
individuals charged with crimes. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.
This right to extends to guilty pleas. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d
1015 (2011). When a noncitizen enters a plea, the right to effective assistance of counsel
includes the right to advice regarding potential immigration consequences. Padilla v.
Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
An individual seeking relief from conviction based on ineffective immigration
advice bears the burden of proving grounds for relief. This involves showing two
elements: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668,
4 No. 37056-9-III State v. Gutierrez
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to meet either element precludes
relief. Id. at 700.
Deficiency of performance
Defense counsel’s constitutional obligation to provide immigration advice is
significant, but not onerous. The case law recognizes “[i]mmigration law can be
complex.” Padilla, 559 U.S. at 369. If the law governing a particular case is unclear, an
attorney need do no more than provide a general warning regarding the “risk of adverse
immigration consequences.” Id. But when the law is “truly clear” defense counsel must
do more. Id. If the law is clear that an offense “is deportable,” defense counsel is obliged
to provide the client correct advice. Sandoval, 171 Wn.2d at 170.
The question here is what level of specificity was required of Mr. Swinburnson.
This inquiry turns on whether, at the time of Mr. Gutierrez’s plea, relevant law made clear
Mr. Gutierrez’s drug offense would render him deportable. It was. It is black letter law
that all noncitizens convicted of a controlled substance offense are deportable. 8 U.S.C.
§ 1227(a)(2)(B)(i). 2 Although there are many areas of immigration law that are complex
2 “Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).
5 No. 37056-9-III State v. Gutierrez
and unpredictable, this is not one of them. Given the clarity of the law regarding
controlled substance offenses, it is was incumbent on Mr.
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FILED DECEMBER 29, 2020 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. 37056-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DAVID MERAZ GUTIERREZ, ) ) Appellant. )
PENNELL, C.J. — David Meraz Gutierrez filed a motion for post-conviction relief
in the trial court, arguing he was denied effective assistance of counsel because his
attorney failed to provide adequate immigration advice prior to entry of a plea to
possession of a controlled substance. We agree with Mr. Gutierrez’s claim for relief
and reverse the trial court’s order to the contrary.
FACTS
Mr. Gutierrez is a citizen and national of Mexico. He has lived in the United
States since childhood and graduated high school in Kennewick, Washington in 2007.
In 2009, Mr. Gutierrez became a lawful permanent resident of the United States.
In 2014, Mr. Gutierrez was charged with one count of unlawful possession of
a controlled substance, methamphetamine. He was represented by an attorney named
Ryan Swinburnson. Originally, Mr. Gutierrez was released from custody pending trial. No. 37056-9-III State v. Gutierrez
But after he failed to appear for an omnibus hearing, a bench warrant was issued and he
was arrested. Mr. Gutierrez then pleaded guilty as charged on October 9, 2014. His
standard sentencing range was 0 to 6 months. The court imposed 30 days’ confinement.
Mr. Gutierrez did not appeal.
Roughly three years after his plea and conviction, Mr. Gutierrez was deported to
Mexico. In January 2019, Mr. Gutierrez filed a motion to vacate his sentence and
withdraw his guilty plea. The basis for the motion was that he had not been provided
adequate advice about the immigration consequences of his guilty plea.
Both Mr. Gutierrez and Mr. Swinburnson provided information relevant to
Mr. Gutierrez’s motion; they differ in their accounts. According to Mr. Gutierrez,
Mr. Swinburnson never discussed anything about immigration consequences.
Mr. Swinburnson disagreed. While he had no specific recollection of the details of
Mr. Gutierrez’s case, Mr. Swinburnson claimed his general practice was to ask clients
about whether they had any immigration concerns. If so, he would offer to put them in
contact with an immigration attorney. Mr. Swinburnson could not find any record that he
had contacted an attorney for Mr. Gutierrez. In Mr. Swinburnson’s experience, most of
his clients were more concerned about getting out of jail than immigration consequences.
Mr. Swinburnson knew that a drug possession conviction could have immigration
2 No. 37056-9-III State v. Gutierrez
repercussions. However, Mr. Swinburnson was not able to differentiate the consequences
that might be faced by a defendant with “no status at all . . . as opposed to someone who
was a legal permanent resident.” Report of Proceedings (Apr. 16, 2019) at 10.
At the evidentiary hearing on Mr. Gutierrez’s motion for post-conviction relief, the
trial court received testimony from Mr. Swinburnson and credited his account of the
interactions with Mr. Gutierrez. 1 The court found Mr. Swinburnson
advised [David] Meraz Gutierrez regarding potential immigration consequences of his plea including that his plea of guilty could have very serious negative immigration consequences to him including deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.
Clerk’s Papers at 127.
The trial court found Mr. Swinburnson’s advice legally accurate and sufficient.
The court noted immigration law is complex and Mr. Gutierrez’s “situation is not one
where the law is ‘truly clear’ that the offense of unlawful possession of a controlled
substance is clearly deportable.” Id. at 128. The court reasoned that, even with a
conviction for unlawful possession of a controlled substance, Mr. Gutierrez could have
been eligible for relief from deportation through cancellation of removal. Given this
1 Because he was deported to Mexico, Mr. Gutierrez was not available to testify at the hearing.
3 No. 37056-9-III State v. Gutierrez
circumstance, the court found Mr. Gutierrez was accurately advised that deportation
was uncertain and therefore counsel’s representation was not deficient.
The trial court went on to find that Mr. Gutierrez would have exercised his right
to trial had he been advised his offense would render him deportable. Nevertheless,
because the court found Mr. Gutierrez had not received inadequate advice, it denied
Mr. Gutierrez’s motion for relief.
Mr. Gutierrez now appeals.
ANALYSIS
The state and federal constitutions guarantee effective assistance of counsel to
individuals charged with crimes. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.
This right to extends to guilty pleas. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d
1015 (2011). When a noncitizen enters a plea, the right to effective assistance of counsel
includes the right to advice regarding potential immigration consequences. Padilla v.
Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
An individual seeking relief from conviction based on ineffective immigration
advice bears the burden of proving grounds for relief. This involves showing two
elements: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668,
4 No. 37056-9-III State v. Gutierrez
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure to meet either element precludes
relief. Id. at 700.
Deficiency of performance
Defense counsel’s constitutional obligation to provide immigration advice is
significant, but not onerous. The case law recognizes “[i]mmigration law can be
complex.” Padilla, 559 U.S. at 369. If the law governing a particular case is unclear, an
attorney need do no more than provide a general warning regarding the “risk of adverse
immigration consequences.” Id. But when the law is “truly clear” defense counsel must
do more. Id. If the law is clear that an offense “is deportable,” defense counsel is obliged
to provide the client correct advice. Sandoval, 171 Wn.2d at 170.
The question here is what level of specificity was required of Mr. Swinburnson.
This inquiry turns on whether, at the time of Mr. Gutierrez’s plea, relevant law made clear
Mr. Gutierrez’s drug offense would render him deportable. It was. It is black letter law
that all noncitizens convicted of a controlled substance offense are deportable. 8 U.S.C.
§ 1227(a)(2)(B)(i). 2 Although there are many areas of immigration law that are complex
2 “Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).
5 No. 37056-9-III State v. Gutierrez
and unpredictable, this is not one of them. Given the clarity of the law regarding
controlled substance offenses, it is was incumbent on Mr. Swinburnson to provide
Mr. Gutierrez legal advice that went beyond mere generalities.
It is undisputed that Mr. Swinburnson never provided Mr. Gutierrez specific
advice regarding deportability. Nevertheless, the trial court excused defense counsel’s
conduct, reasoning Mr. Gutierrez might have been able to avoid deportation by obtaining
cancellation of removal. Had Mr. Gutierrez obtained cancellation of removal, he would
not have been deported. Given this circumstance, the court reasoned defense counsel’s
general advice about the potential for deportation was accurate.
The trial court’s analysis conflated deportability with relief from deportation.
At the time of his plea, Mr. Gutierrez was a legal permanent resident. This status meant
he was not a deportable alien. But once Mr. Gutierrez entered his guilty plea, things
changed. The plea and conviction authorized United States Immigration and Customs
Enforcement to arrest Mr. Gutierrez and place him in removal proceedings. Once in
proceedings, it might have been possible for Mr. Gutierrez to apply for discretionary
relief from deportation, such as cancellation of removal. However, the potential for relief
from deportation did not change the fact that Mr. Gutierrez was deportable, a status he did
not have prior to his plea.
6 No. 37056-9-III State v. Gutierrez
At the time of his plea, Mr. Gutierrez was entitled to clear advice that his
conviction would change his protected status in the United States and render him eligible
for deportation. 3 Unfortunately, this critical information was never relayed to Mr.
Gutierrez. Defense counsel’s conduct was therefore constitutionally deficient.
Prejudice
Because Mr. Gutierrez has shown deficient performance, the final step in the
analysis turns on whether he has shown prejudice. Prejudice in this context requires
a defendant to show that, “‘but for counsel’s errors, [they] would not have pleaded
guilty and would have insisted on going to trial.’” Sandoval, 171 Wn.2d at 175 (quoting
In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863 P.2d 554 (1993)). We agree
with the trial court here that this burden has been met.
The record shows Mr. Gutierrez pleaded guilty to the State’s information as
charged. His standard sentencing range would have been the same regardless of whether
he entered a plea or took his case to trial. Given the significance of retaining lawful
permanent resident status and the limited value of the terms of his plea, it is probable
Mr. Gutierrez would have exercised his right to trial had he been accurately advised of
3 It is doubtful Mr. Swinburnson was obliged to go further and discuss potential defenses, such as cancellation of removal. Mitigation advice is often confusing and can detract from the key advice regarding deportability. Sandoval, 171 Wn.2d at 173.
7 No. 37056-9-III State v. Gutierrez
immigration consequences. Mr. Gutierrez has therefore shown he was prejudiced by
counsel’s deficient immigration advice.
CONCLUSION
The trial court’s order denying Mr. Gutierrez’s motion to vacate his conviction
and withdraw his guilty plea is reversed. This matter is remanded for further proceedings
consistent with this opinion.
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.
_________________________________ Pennell, C.J.
WE CONCUR:
______________________________ Korsmo, J.
______________________________ Fearing, J.