State v. Tarango

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-35443 5 DANIEL TARANGO, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean, Jr., District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Christin K. Kennedy 15 Albuquerque, NM

16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge.

1 {1} Defendant Daniel Tarango appeals the district court’s denial of his motion to 2 withdraw and vacate his guilty plea. Defendant argues that he was denied effective 3 assistance of counsel when he entered a guilty plea for possession of a controlled 4 substance because his defense counsel failed to advise him of the specific immigration 5 consequences of pleading guilty. Unpersuaded, we affirm the district court. 6 I. BACKGROUND 7 {2} On July 6, 1996, Defendant was stopped for a vehicle registration violation. 8 After failing to provide identification and giving a false name during the stop, 9 Defendant was arrested for concealing his identity. During a search of Defendant’s 10 person, the arresting officer found a substance he believed was methamphetamine, but 11 later tested positive as cocaine and a small amount of marijuana. Defendant was 12 ultimately charged with possession of cocaine, possession of an ounce or less of 13 marijuana, concealing identity, driving with a suspended or revoked license, and 14 failing to exhibit evidence of vehicle registration. On June 17, 1997, the State filed a 15 supplemental information alleging that Defendant was convicted of possession of a 16 controlled substance in 1992. Because of this prior felony, the State requested a one- 17 year habitual offender sentence enhancement in the event of a conviction. On the same 18 day, Defendant pled guilty to possession of a controlled substance (cocaine), and in 19 exchange for his plea the State agreed to dismiss the remaining four counts.

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1 {3} At the change of plea hearing, the district court realized that there was no 2 interpreter present. Defendant’s counsel suggested that Carmen Baca (Baca), who had 3 served as an interpreter for Defendant in prior proceedings and was available, interpret 4 for Defendant.1 Defense counsel added that Defendant “knows [Baca] and trust[s] 5 her.” The district court stated that if Defendant states on the record that he is okay 6 with Baca translating for Defendant, then the court will grant the request. The district 7 court placed Baca under oath and asked to swear or affirm that she would interpret 8 English to Spanish and Spanish to English to the best of her ability, whether she 9 conversed with Defendant and that she understood him and he understood her. Baca 10 replied in the affirmative. The district court asked Defendant whether he understood 11 Baca and if he wished to have her interpret for him, to which he responded in the 12 affirmative. 13 {4} Prior to the district court conducting its colloquy, the State informed the court 14 of the supplemental information regarding Defendant’s prior conviction. The district 15 court asked Defendant if he was Daniel Tarango who read and signed the plea and 16 disposition agreement and guilty plea proceeding document. Defendant replied, “yes,” 17 to both questions. The district court then asked Defendant whether he (1) had an

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18 Defendant argued in his brief in chief that Baca was not a certified court 19 interpreter. Beyond this, he never developed his argument. We therefore do not 20 address the matter. See Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 21 (“This Court has no duty to review an argument that is not adequately developed.”).

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1 adequate opportunity to go over the plea with his attorney and did his attorney explain 2 it to him, and (2) if he felt like he understood what he was doing, and Defendant 3 replied, “yes” to both questions. The district court asked Defendant to tell the court, 4 in his own words, what the agreement was. There was some discussion about where 5 Defendant would serve his time, and the district court let Defendant know that there 6 was no guarantee, based on his plea where he would serve his time, and asked if he 7 understood, to which he replied, “yes.” The district court asked Defendant if he 8 understood that under this plea he could be doing two and one-half years in the state 9 penitentiary and Defendant stated that he understood. The district court continued to 10 ask Defendant if he understood that by entering into this plea and the court accepts the 11 plea, there would be no trial by jury and Defendant stated that he understood. The 12 district court then asked Defendant if he was giving up his right to confront witnesses, 13 which the court described to Defendant, meant the witnesses would testify in front of 14 Defendant and he would get to cross-examine the witnesses, and that he is also giving 15 up his right to remain silent, and Defendant responded, “yes.” The district court asked 16 Defendant if he wished to give up those rights and enter the plea, and Defendant 17 responded, “yes.” The district court asked Defendant if he understood that if he 18 entered this guilty plea these rights would be waived, and Defendant stated that he 19 understood. The court further stated that there would be no trial because he would

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1 already be considered guilty. In its inquiry into the factual basis of Defendant’s guilty 2 plea, the district court asked Defendant whether he had possession of cocaine on July 3 6, 1996, whether he knew that it was cocaine and that it was illegal. Defendant replied, 4 “yes” to all three questions. The district court then asked Defendant whether anyone 5 was forcing or threatening him to enter into this plea, whether he had been promised 6 anything in exchange for the plea that was not included in the plea agreement, 7 Defendant responded, “no.” 8 {5} The district court then asked defense counsel whether he had made an 9 independent investigation as to whether a factual basis existed for the plea. 10 Defendant’s attorney replied that there was a factual basis and he even had the 11 substance independently tested. In response to the district court’s inquiry into 12 Defendant’s immigration status, Defense counsel stated that, as far as he knew 13 Defendant was a legal immigrant. The court noted that the plea may or may not affect 14 his immigration status. The district court specifically found the plea had been entered 15 into knowingly and voluntarily. By the court accepting the plea, Defendant was 16 adjudicated as guilty of possession of a controlled substance. The district court then 17 addressed the supplemental information that Defendant was convicted of possession 18 of a controlled substance in Lea County in March 1992. Defense counsel stated that 19 he had also investigated this allegation and determined that it was accurate and his

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1 client would admit the prior conviction. The district court accepted the admission of 2 the prior conviction. The district court delayed sentencing so that a pre-sentence report 3 could be prepared and scheduled sentencing for July 22, 1997. On July 10, 1997, 4 Defendant was deported. As a result, he failed to appear for sentencing. At some 5 point, Defendant returned to Farmington to get his family. On June 25, 1998, the 6 family held a garage sale where Defendant’s neighbor, a police officer, saw him and 7 called law enforcement. Defendant was eventually arrested. 8 {6} At the July 2, 1998 sentencing, the district court noted on the record that 9 because Defendant would be deported, it proposed to impose the sentence 10 recommended in the plea agreement. Defense counsel requested to use Baca as 11 Defendant’s interpreter again. The court asked if Defendant understood the interpreter 12 and whether Baca understood Defendant. They both replied, “yes.” The court then 13 placed Baca under oath and asked her to swear or affirm that she would translate 14 English to Spanish and Spanish to English to the best of her ability, which she stated 15 that she would. The court announced that it was proposing a sentence as outlined in 16 the plea agreement—one year in the penitentiary for the underlying habitual offender 17 enchancement and Defendant would then be on unsupervised probation for eighteen 18 months, because the court assumed he would be deported. At that point, Defendant 19 asked to speak. Defendant, through Baca, told the district court that “he came [to

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1 Farmington] for his family and now all he wants to do is return back to Mexico” with 2 his family. The district court explained that the habitual offender enhancement was 3 mandatory and it was therefore required to impose a one year prison sentence. 4 Defendant stated that he understood. Defendant was sentenced, pursuant to the guilty 5 plea, to two and one-half years in the department of corrections. Eighteen months of 6 the sentence were suspended in favor of unsupervised probation, leaving the 7 mandatory habitual offender enhancement of one year of incarceration followed by 8 one year of parole to run concurrent with the unsupervised probation. 9 {7} Seventeen years later, Defendant filed a motion to withdraw and vacate his 10 guilty plea. In his motion, Defendant stated that he was in the process of applying to 11 become a legal permanent resident. Defendant also alleged that his attorney in 1997 12 never told him that by pleading guilty to one count of possession of a controlled 13 substance it would affect his immigration status, his ability to apply for legal 14 permanent residence, or that he would be deported. Defendant further claimed that 15 because a drug conviction is a crime of moral turpitude that makes him ineligible for 16 legal permanent residency in general. 17 {8} The motion’s hearing was initially scheduled for November 6, 2015, but was 18 rescheduled because Defendant was in federal custody. At that setting, Defendant’s 19 unopposed request to admit his plea attorney’s affidavit as Defendant’s Exhibit A, was

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1 granted by the district court.2 The motion’s hearing was eventually held on December 2 1, 2015. Defendant was the only witness to testify at the hearing. He testified that his 3 attorney did not speak Spanish and only spoke with Defendant when he was in court. 4 He also testified that his attorney never advised him that accepting a plea would affect 5 his immigration status, that he would lose his residency and that he would be 6 deported. Defendant further testified that his attorney did not inform him that he had 7 the right to a jury trial and had he known a plea would affect his immigration status, 8 he would have asked for a trial. Finding Defendant’s testimony as self-serving and 9 that defense counsel did not provide ineffective assistance for purposes of the plea, the 10 district court denied Defendant’s motion to have his plea withdrawn and vacated. The 11 district court entered findings of fact and conclusions of law. Defendant appeals the 12 district court’s denial. 13 II. DISCUSSION 14 {9} Defendant claims that the district court abused its discretion in denying his 15 motion to withdraw and vacate his guilty plea because his plea counsel failed to advise

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18 We caution Defendant’s appellate counsel to abide by the rules of appellate 19 procedure. The proposed affidavit should have been designated as an exhibit for the 20 appellate record and not attached to the brief in chief. See Rule 12-212(A) NMRA 21 (requiring appellant to designate exhibits); Rule 12-213(F)(4) NMRA (current version 22 at Rule 12-318 NMRA, effective Dec. 31, 2016) (prohibiting attachments to briefs). 23 Because there is no objection from the State and because the district court relied on 24 the affidavit in its ruling on Defendant’s motion, we will consider it.

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1 him of specific immigration consequences, as required by State v. Paredez, 2004- 2 NMSC-036, 136 N.M. 533, 101 P.3d 799, and his right to a jury trial, therefore his 3 plea was unknowing and involuntary. We review a motion to withdraw and vacate a 4 guilty plea based on a claim of ineffective assistance of counsel, under a mixed 5 standard of review. See State v. Gutierrez, 2016-NMCA-077, ¶ 33, 380 P.3d 872. This 6 Court “view[s] the factual record in the light most favorable to the [district] court’s 7 ruling but deciding de novo whether counsel was ineffective as a matter of law.” Id. 8 We therefore defer to the district court’s findings of fact if they are supported by 9 substantial evidence in the record. See State v. Barrera, 2001-NMSC-014, ¶ 12, 130 10 N.M. 227, 22 P.3d 1177 (noting that the appellate court “resolves all disputed facts 11 and draws all reasonable inferences in favor of the [prevailing] party and disregards 12 all evidence and inferences to the contrary, viewing the evidence in the light most 13 favorable to the [district] court’s decision”). It is Defendant’s burden to provide 14 sufficient evidence to demonstrate that his plea should be withdrawn. See State v. 15 Clark, 1989-NMSC-010, ¶ 9, 108 N.M. 288, 772 P.2d 322 (holding that the defendant 16 must show that the trial court abused its discretion by denying withdrawal of the plea). 17 {10} Under the Sixth Amendment of the United States Constitution, the defendants 18 in criminal cases have the right to effective assistance of counsel. See Strickland v. 19 Washington, 466 U.S. 668, 686 (1984); Patterson v. LeMaster, 2001-NMSC-013,

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1 ¶ 16, 130 N.M. 179, 21 P.3d 1032. “This right extends to plea negotiations.” State v. 2 Gallegos-Delgado, 2017-NMCA-031, ¶ 11, 392 P.3d 200. For a guilty plea to be 3 valid, it “must be voluntary and intelligent.” Id. “If a defendant pleads guilty based on 4 the advice of his or her attorney, whether the plea was voluntary and intelligent 5 depends on whether the attorney’s assistance in counseling the guilty plea was 6 ineffective.” Id. “The district court abuses its discretion . . . when the undisputed facts 7 establish that the plea was not knowingly and voluntarily given.” Paredez, 2004- 8 NMSC-036, ¶ 5 (internal quotation marks and citation omitted). 9 {11} “To evaluate a claim of ineffective assistance of counsel, we apply the 10 two-prong test in [Strickland, 466 U.S. at 687].” State v. Dylan J., 2009-NMCA-027, 11 ¶ 36, 145 N.M.719, 204 P.3d 44. “That test places the burden on the defendant to 12 show that his counsel’s performance was deficient and that the deficient performance 13 prejudiced his defense.” Id.; see Paredez, 2004-NMSC-036, ¶ 13. Defendant must 14 satisfy both of these requirements to prove his plea was not knowingly and voluntarily 15 given. See State v. Tejeiro, 2015-NMCA-029, ¶ 6, 345 P.3d 1074. If the defendant is 16 prejudiced by the deficient advice, the attorney’s representation was ineffective, and 17 the defendant may withdraw the guilty plea. See Paredez, 2004-NMSC-036, ¶ 19. 18 {12} A specific attack shall be made on any finding, otherwise such finding will be 19 deemed conclusive. See Rule 12-318(A)(4) (“A contention that a . . . finding of fact

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1 is not supported by substantial evidence shall be deemed waived unless the argument 2 identifies with particularity the fact or facts that are not supported by substantial 3 evidence[.]); MPC Ltd. v. N.M. Taxation & Revenue Dep’t, 2003-NMCA-021, ¶ 11, 4 133 N.M. 217, 62 P.3d 308 (“Findings that are not directly attacked are deemed 5 conclusive and are binding on appeal.”). Defendant does not make a specific attack 6 as to any of the district court’s findings. Instead, Defendant generally argues whether 7 the evidence supported the findings and appears to focus his argument on the court’s 8 conclusions of law. 9 A. Paredez 10 {13} Paredez obligates the defendant’s counsel “to determine the immigration status 11 of their clients.” 2004-NMSC-036, ¶ 19. If their client is not a citizen, counsel is then 12 required to advise their client of specific immigration consequences associated with 13 entering a guilty plea, “including whether deportation would be virtually certain.” Id. 14 This Court has held that generally advising a client of the immigration consequences 15 of pleading guilty and the possibility of deportation falls short of meeting the 16 requirements of Paredez. See State v. Carlos, 2006-NMCA-141, ¶¶ 15,16, 140 N.M. 17 688, 147 P.3d 897. This Court reads Paredez “to require at a minimum that the 18 attorney advise the defendant of the specific federal statutes which apply to the 19 specific charges contained in the proposed plea agreement and of consequences, as

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1 shown in the statutes, that will flow from a plea of guilty.” Carlos, 2006-NMCA-141, 2 ¶ 15. Any failure to abide with the requirements of Paredez renders an attorney’s 3 performance deficient, which satisfies the first prong of Strickland. See Paredez, 4 2004-NMSC-036, ¶ 19. 5 B. Deficient Performance 6 {14} Defendant contends that his defense counsel was deficient because he was not 7 advised of the specific immigration consequences or his right to a jury trial. Defense 8 counsel’s advice on the specific immigration consequences requires an individualized 9 analysis of any apparent immigration consequences for his client, beyond deportation. 10 See Carlos, 2006-NMCA-141, ¶ 15. Our Supreme Court has held that defense 11 counsel’s advice that a defendant “could” or “might” be deported is “incomplete and 12 therefore inaccurate” because “stating that a person ‘may’ be subject to deportation 13 implies there is some chance, potentially a good chance, that the person will not be 14 deported.” Paredez, 2004-NMSC-036, ¶ 15 (alteration, internal quotation marks, and 15 citation omitted); see State v. Ramirez, 2012-NMCA-057, ¶ 17, 278 P.3d 569 16 (“Misadvice, no advice, and general advice all fail to provide the defendant with 17 information sufficient to make an informed decision to plead guilty.” (internal 18 quotation marks and citation omitted)), aff’d sub nom. 2014-NMSC-023, 333 P.3d 19 240.

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1 {15} This Court has held that more is required than a mere discussion of possible 2 deportation consequences. See Carlos, 2006-NMCA-141, ¶ 15. In Carlos, the only 3 evidence presented was that the defendant’s counsel “generally advised clients of the 4 range of different . . . deportation proceedings, advised [the d]efendant . . . about the 5 possible consequences of pleading guilty, and advised [the d]efendant of the utility of 6 retaining counsel specifically to deal with the immigration issue.” Id. This Court held 7 that this level of advice was insufficient under the Paredez standards, because there 8 was not a sufficient discussion about the crime he was charged with, and a discussion 9 about the specific immigration consequences because of those crimes. See Carlos, 10 2006-NMCA-141, ¶ 16 (holding that the attorney should have discussed the specific 11 elements of the crimes he was charged with, and should have indicated how these 12 would have affected his immigration status). 13 {16} In support of his motion, Defendant submitted an affidavit from his plea 14 counsel and Defendant testified. The affidavit explained that it was defense counsel’s 15 general practice to advise clients of the immigration consequences of a plea, but due 16 to the age of the case could not recall whether he knew Mr. Tarango’s immigration 17 status would be affected by the plea, or whether he would be deported if he accepted 18 the plea. There is nothing in the affidavit addressing the substance or lack of substance 19 of discussions between plea counsel and Defendant and his right to a jury trial. The

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1 State argues that we weigh plea counsel’s general advice against Defendant because 2 of the age of the case, and because the affidavit indicates that defense counsel advised 3 Defendant about the specific immigration consequences. We agree with the State’s 4 contention that evidence of plea counsel’s inability to recall this particular case is not 5 evidence that he failed to properly advise Defendant. The record reflects that the only 6 thing defense counsel stated in open court about Defendant’s immigration status was 7 that as far as he knew Defendant was a legal immigrant. It was the district court, not 8 plea counsel, that noted that the plea may or may not affect Defendant’s immigration 9 status. There is no evidence in the record to indicate this was the only conversation 10 Defendant and plea counsel had regarding the specific immigration consequences. The 11 only evidence we do have about any immigration consequences is the guilty plea 12 proceeding document. Defendant confirmed his identity in open court as the person 13 who initialed and signed the guilty plea proceeding document. Specifically, Defendant 14 initialed paragraph nine that states: “That [D]efendant understands that a conviction 15 may have an effect upon [D]efendant’s immigration or naturalization status.” He also 16 certified “that the judge personally advised me of the matters noted above, that I 17 understand the constitutional rights that I am giving up by pleading guilty and that I 18 desire to plead guilty to the charges stated.” Defendant’s plea counsel also certified

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1 “that he has conferred with his client with reference to the execution of this affidavit 2 and that he has explained in detail its contents.” 3 {17} Except for four responses, Defendant’s testimony in support of his motion 4 consisted of one word answers to his attorney’s leading questions. Defendant testified 5 that his plea counsel did not communicate well and only spoke to him when he was 6 in court. Defendant also testified that “they” never informed him that he would lose 7 his residency. In response to his attorney’s question if he had known that accepting 8 the plea would have affected his immigration status, whether he would have accepted 9 the plea or gone to trial and Defendant stated that he “would have asked for a trial.” 10 Defendant testified on cross-examination that he has four children in the United 11 States, who are American citizens. He has no children or family in Mexico. The 12 district court did not find Defendant’s testimony credible. Appellate courts 13 “recogniz[e] that the district court has the best vantage from which to . . . evaluate 14 witness credibility.” State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 15 57. “[T]his Court cannot judge the credibility of witnesses, reweigh the evidence, or 16 make its own findings of fact.” Gallegos v. City of Albuquerque, 1993-NMCA-050, 17 ¶ 11, 115 N.M. 461, 853 P.2d 163. 18 {18} Defendant argues that plea counsel did not do an independent investigation to 19 determine whether the plea would actually affect Defendant’s immigration status, nor

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1 did he consult an immigration attorney. Defendant also argues that this conviction 2 alone caused him to lose his permanent residency and he will be unable to become a 3 legal permanent resident again. There is nothing in the record to verify exactly what 4 plea counsel did or did not do as far as counseling Defendant on his immigration 5 consequences. The very general affidavit from plea counsel proved nothing, other than 6 plea counsel could not remember the specifics of this seventeen year old case. 7 Defendant also had a 1992 conviction for possession. There is nothing in the record, 8 other than defense counsel’s statements, to indicate why Defendant was 9 deported—whether it was the 1992 conviction, the 1997 conviction, or some other 10 reason. See State v. Cochran, 1991-NMCA-051, ¶ 8, 112 N.M. 190, 812 P.2d 1338 11 (“Argument of counsel is not evidence.”). 12 {19} During the June 1997 colloquy Defendant told the district court that he 13 understood the trial process; that he understood that by entering the guilty plea he 14 would be waiving his right to trial, including questioning witnesses on direct and 15 cross-examination; that he had the right to remain silent; that he would be waiving his 16 right to trial and remain silent; that there would be no trial because he would be 17 considered guilty. At his sentencing hearing in July 1998 the district court stated in 18 open court that it assumed Defendant would be deported so the court was proposing 19 the sentence outlined in the plea agreement. It was immediately after this statement

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1 by the court that Defendant asked to address the court. He told the court, through 2 Baca, that “he came for his family and now all he wants to do is return back to 3 Mexico.” Notably, Defendant did not raise the issue at sentencing that he was unaware 4 that he would be deported as a result of his guilty plea, rather he declared that he 5 wanted to return to Mexico. We agree with the district court that Defendant’s 6 testimony, that he did not know he was going to be deported, that his plea counsel 7 never told him he had the right to a jury trial, nor that the guilty plea to possession of 8 a controlled substance would affect his immigration status is self-serving. 9 {20} Since Paredez, our courts are hesitant “to rely solely on the self-serving 10 statements of [a] defendant.” Patterson, 2001-NMSC-013, ¶ 29. Rather, a defendant 11 is required to provide additional evidence to prove that there was a reasonable 12 probability that he would have gone to trial. See id. ¶ 31 (stating that the Supreme 13 Court also looked to extrinsic evidence that the defendant had been steadfast in 14 maintaining his innocence, and the strength of the evidence against him to more 15 objectively assess his veracity when stating that he would have taken his chances at 16 trial). In this case, there was no extrinsic evidence presented to the district court. 17 Defendant has failed to make a prima facie showing that plea counsel was ineffective. 18 {21} We conclude that there was substantial evidence to support the district court’s 19 findings of fact, and it did not abuse its discretion in denying Defendant’s motion. See

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1 id. ¶ 29 (“Because [appellate] courts are reluctant to rely solely on the self-serving 2 statements of [the] defendants, which are often made after they have been convicted 3 and sentenced, a defendant is generally required to adduce additional evidence to 4 prove that there is a reasonable probability that he . . . would have gone to trial.”). 5 C. Prejudice 6 {22} Because Defendant has failed to prove that his plea counsel’s performance was 7 deficient under the first requirement of Paredez, we need not address the second 8 requirement of prejudice. See Tejeiro, 2015-NMCA-029, ¶ 6 (stating that both 9 requirements must be satisfied for a defendant to prove “his plea was not knowing and 10 voluntary and should be set aside”). 11 CONCLUSION 12 {23} We conclude that the district court did not abuse its discretion in denying 13 Defendant’s motion. We therefore affirm the district court’s order denying 14 Defendant’s motion to withdraw and vacate his guilty plea. 15 {24} IT IS SO ORDERED.

16 _______________________________ 17 M. MONICA ZAMORA, Judge

18 WE CONCUR:

19 ___________________________

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1 MICHAEL E. VIGIL, Judge

2 ___________________________ 3 STEPHEN G. FRENCH, Judge