Tafoya v. State

500 P.2d 247, 1972 Alas. LEXIS 239

• Court: Alaska Supreme Court
• Decided: August 11, 1972
• Docket: 1429
• Status: Published

Opinions

OPINION

BONEY, Chief Justice.

Francisco Tafoya appeals from the denial of his motion to withdraw his guilty plea.

On December 30, 1965, Tafoya, together with his codefendant Alberto Castro, pleaded not guilty to charges of kidnap and rape. Almost a year later, as a result of plea bargaining, they were permitted to withdraw their pleas. The kidnap charge was then dismissed, and they pleaded guilty to rape. The court followed the prosecutor’s recommendation that Ta-foya be sentenced to three years, suspended, and that he serve two years on probation.

Tafoya is an alien, a Mexican citizen. He is thus deportable for conviction of a crime involving moral turpitude under 8 U.S.C. § 1251(a) (4).¹ However, such a conviction will not furnish grounds for deportation if the sentencing court, at the time of sentencing or within 30 days thereof, makes a recommendation to the Attorney General of the United States that the alien not be deported²

From the record it is apparent that the attorneys then representing Tafoya and Castro knew that their clients were aliens. A recommendation against deportation was not sought either during plea bargaining or at the time that the guilty pleas were entered apparently neither attorney was aware either of the possibility of deportation or of the means to forestall such a possibility. Counsel for Castro was first informed of the threat of deportation by Castro and Tafoya on December 1, 1966, twenty-seven days after they had pleaded guilty.

Counsel for Castro immediately moved to amend the judgments to include a recommendation that neither Castro nor Ta-foya be deported.³ The superior court denied the motion to amend the sentences of Tafoya and his codefendant. In so ruling, the court specifically declined to recommend either that Tafoya be deported or that he not be deported. Approximately two months later, Tafoya, through his own attorney, again sought to amend the sentence by having the trial court make a recommendation to the Attorney General against deportation. Contrary to the state’s earlier position, on this occasion it did not oppose Tafoya’s motion. Apparently, because of the lack of opposition the superior court granted Tafoya’s motion to amend the sentence.⁴

Tafoya’s two-year probationary period expired in November 1968, at which time the Division of Corrections recommended that his probation be terminated. The recommendation that probation be terminated was approved by the sentencing judge. One year later, when Tafoya’s three-year suspended sentence was completed, he moved to withdraw his plea of guilty and to vacate the sentence he had fully served.⁵ The reasons advanced for taking this action were that he had been ordered to leave the United Stats as a result of his conviction of the crime of rape and that he would not have pleaded guilty had he known of the possibility of deportation. After the hearing, Tafoya’s petition for post-conviction relief was denied. Tafoya brings this appeal from the superior court’s denial of his application for post-conviction relief.

Tafoya argues first that his unawareness of all of the consequences of a guilty plea renders his plea involuntary and that therefore he must be allowed to withdraw it.

Alaska Rule of Criminal Procedure 11 provides in pertinent part that:

A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.

Unlike Federal Rule of Criminal Procedure 11, the federal counterpart to our rule, Alaska Rule of Criminal Procedure 11 does not explicitly require that the trial court first address the defendant personally to determine whether the plea is made voluntarily and with understanding of the nature of the charge and “the consequences of the plea.” ⁶ In Ingram v. State 7 this court construed Alaska’s Rule 11 in a manner which in effect brought our Rule 11 into conformity with the provision found in Federal Rule 11, which conditions the voluntariness of .a guilty plea on the accused’s understanding of the nature of the charge and the consequences of the plea. As we stated in Ingram:

We need not explore here the scope of the term ‘consequences’. Suffice it to say that an ‘understanding of the nature of the charge’, within the meaning of Criminal Rule 11, encompasses an awareness of the consequences of a guilty plea, that one of the consequences an accused must have knowledge of, gained either from his counsel or the court, is not only the maximum sentence that might be imposed, but the mandatory minimum sentence as well. . . .⁸

In reaching this interpretation in Ingram, we relied in part on Kercheval v. United States, where the Court said:

Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.⁹

We are thus faced with the necessity of exploring the scope of the term “consequences,” as used in this court’s interpretation in Ingram, of Alaska Rule of Criminal Procedure 11 in order to reach the ultimate question whether Tafoya has made a sufficient showing of manifest injustice under Rule 32(d) to warrant relief.¹⁰ As in Ingram, we turn to federal law.

In United States v. Carióla,¹¹ which we cited in Ingram, the defendant discovered, sixteen years after entering his guilty plea, that his conviction disenfranchised him in a state to which he had moved. The court rejected his application to withdraw his plea, stating that:

[Unsolicited advice concerning the collateral consequences of a plea which necessitates judicial clairvoyance of a superhuman kind can be neither expected nor required.¹²

Federal judicial precedent, in line with Carióla, has established that an accused need not be informed about every conceivable collateral effect the conviction might have prior to the acceptance of a plea of guilty.¹³ The leading federal case concerning deportation as a consequence of a guilty plea is United States v. Parrino.¹⁴ Like Tafoya, Parrino had fully served his sentence and was faced with deportation as a result of his conviction when he attempted to -Withdraw his guilty plea. The court denied Parrino’s request, holding that the possibility of deportation was a collateral consequence.¹⁵

The Parrino rule has been consistently followed in the federal courts.¹⁶ In Joseph v. Esperdy¹⁷ the defendant argued that the federal court should vacate his state conviction because the failure of the state judge to advise him that his conviction would subject him to deportation made his plea involuntary. The court denied him relief, explaining its reliance on the direct-collateral consequences dichotomy as follows:

[E]ven in this Court, where it is mandated that the full range of consequences he set out [citation to Federal Rule of Criminal Procedure 11] it seems onerous and absurd to expect a judge to explain to each and every defendant who pleads guilty the full range of collateral consequences of his plea and, indeed, to anticipate what those collateral consequences are.¹⁸

We agree. It would indeed be onerous and absurd to require the trial judge to delve into all the peculiarities of each defendant’s birth, nationality, occupation, and other circumstances, and to apprise him of all the collateral consequences possibly flowing therefrom. That burden should properly fall on the defendant and his counsel.

We therefore hold that the possibility of deportation is a collateral consequence of conviction, Tafoya’s ignorance of which did not render his plea involuntary.

Having concluded that the burden of advising a defendant of collateral con-

sequences falls not on the court, but on the defendant’s counsel, we must now consider Tafoya’s argument that he was denied adequate assistance of counsel. The essence of his argument is that the failure of his counsel to advise him of the possibility of deportation constituted a deprivation of the effective assistance of counsel as guaranteed him by the United States¹⁹ and Alaska Constitutions.²⁰

The standard employed in Alaska to test the competency of counsel is well settled. As we stated in White v. State:

The criterion employed is that if the conduct of counsel was so incompetent as to deprive his client of a trial in any genuine sense — making that trial a mockery and a farce — then the defendant is entitled to a new trial .... The ‘mockery and farce’ test is a relatively stringent one. . . . [W]emust consider the entire proceedings and the whole record to decide whether counsel’s conduct fell short of the mark. The only workable standard is to determine whether the proceedings as a whole have judicial character. Particular errors or claimed errors of counsel are not enough. The proceedings must be so tainted that there was an absence of a genuine trial in any reasonable sense.²¹

The standard was further elaborated upon by this court in .Dimmick v. State:

The right to the effective assistance of counsel requires only that counsel be conscientious and diligent in assisting a defendant in having a genuine trial in a reasonable sense. . . . ²²

The same “mockery and farce” standard applies to counsel representing a defendant entering a guilty plea.²³

We thus must determine if Tafoya was provided genuine proceedings in a reasonable sense and if those proceedings were of a judicial character. Indirectly, the dichotomy between direct and collateral consequences again enters into our consideration. Our focus in examining the proceedings below must be on those facets intrinsic to the proceedings themselves. Thus if counsel had failed to warn Tafoya of certain direct consequences of his plea, we would not only have concluded above that his plea was involuntary, but we would also conclude now that he had not been provided with a genuine proceeding and therefore that he had been denied the effective assistance of counsel. However, error on counsel’s part with regard to collateral consequences cannot be said to have infected the proceedings to such an extent as to have prevented their being either genuine or of a judicial character. We therefore agree with the federal courts²⁴ that failure of counsel to inform of the possibility of deportation does not constitute denial of the right to the effective assistance of counsel.

Superficially, there may appear to be an anomaly in holding both that defense counsel has the burden of informing his client of collateral consequences and that failure to inform of such consequences does not constitute denial of the effective assistance of counsel. The appearance of anomaly results from the collateral character of the consequence of deportation. Not every error by counsel constitutes incompetent representation. While we may sympathize with Tafoya, we cannot accept either of his arguments discussed above.²⁵

The decision of the superior court denying Tafoya’s application for post-conviction relief is affirmed.

BOOCHEVER, J., not participating.

1 . 8 U.S.C. § 1251(a) (4) provides:

(a) Any alien in the United States . . . shall, upon the order of the

Attorney General, be deported who—

(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial ....

2 . 8 U.S.C. § 1251(b) provides:

The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the [Immigration and Naturalization Service], and prosecution authorities, who shall be granted an opportunity to make representations in the matter. The provisions of this subsection shall not apply in the case of any alien who is charged with being de-portable from the United States under subsection (a) (11) of this section.

3 .Counsel for Castro represented both men because counsel for Tafoya was then out of town.

4 . The amended judgment reads in part as follows :

IT IS FURTHER RECOMMENDED BY THE COURT to the Attorney General of the United States of America that the above-named defendant, who is an alien, not be deported from the United States of America, such recommendation being made by the Court pursuant to the provisions of Title 8, U.S.C., Section 1251(a) (4) and (b).

IT IS FURTHER ORDERED AND ADJUDGED that the foregoing amendment provisions shall be considered for all purposes as having been included in the original Judgment and Order of Probation rendered and entered in the above-entitled case.

From the record it is unclear what effect this nunc pro tune recommendation has for purposes of 8 U.S.C. § 1251(b). Since Tafoya’s deportation is still being sought, we assume that the nunc pro tunc recommendation against deportation was not given any consideration by the Attorney General of the United States.

5 . Tafoya’s motion to withdraw his guilty plea was made under Alaska R.Crim.P. 35(b) which provides generally for post-conviction relief rather than under Alaska R.Crim.P. 32(d) which provides as follows for the withdrawal of guilty pleas:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea.

We decline, however, to dispose of this appeal on the basis of this procedural error. We recognize that Tafoya’s present counsel could reasonably have read Nichols v. State, 425 P.2d 247 (Alaska 1967), and Thompson v. State, 412 P.2d 628 (Alaska 1966), as approving the use of Rule 35(b) as a vehicle for the post-conviction withdrawal of a guilty plea.

In future cases, when a defendant wishes to withdraw a plea of guilty or of nolo contendere after the imposition of sen-fence, he should seek his relief under Alaska R.Crim.P. 32(d). Alaska R.Crim. P. 35(b) is not to be used as a substitute for Alaska R.Crim.P. 32(d).

6 . At the time Tafoya withdrew his not guilty plea and entered his plea of guilty, the trial court made what was at best only a perfunctory inquiry as to whether Tafoya’s plea was made “voluntarily with understanding of the nature of the charge.”

7 . 450 P.2d 161 (Alaska 1969).

8 . Id. at 165 (footnotes omitted).

9 . 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.E'd. 1009, 1012 (1927).

10 . AVright states that “[a]lthough somewhat different considerations may be involved, the factors relevant on a motion to withdraw a plea of guilty are closely related to those the court must examine before accepting such a plea in the first instance.” 2 C. Wright, Federal Practice and Procedure § 537, at 465 (1969) (footnote omitted). Kadwell v. United States, 315 F.2d 667, 669 n. 6 (9th Cir. 1963) ; United States v. Mack, 249 F.2d 421 (7th Cir. 1957).

11 . 323 F.2d 180 (3d Cir. 1963).

12 . Id. at 186. The distinction between collateral and direct consequences for the purposes of Fed.R.Crim.P. 11 has been implicitly recognized by the United States Supreme Court. See Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747, 760 (1970).

13 . See, e. g., Meaton v. United States, 328 F.2d 379 (5th Cir. 1964), cert, denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965) (conviction might result in loss of voting rights and right to travel abroad) ; Redwine v. Zuckert, 115 U.S. App.D.C. 130, 317 F.2d 336 (1963) (conviction might result in an undesirable dis-

14 . 212 F.2d 919 (2d Cir. 1954). charge from the Air Force).

15 . Parrino presents a situation even more sympathetic than the instant case. Par-rino’s counsel specifically, but erroneously, informed him that his conviction would not lead to deportation. Tafoya’s counsel offered no such misinformation.

16 . B. rj. United States v. Sambro, 454 F.2d 918 (D.C.Cir. 1971) ; United States ex rel. Durante v. Holton, 22S If .2d 827 (7th Cir.), cert, denied, 351 U.S. 963, 76 S.Ct. 1027, 100 L.Ed. 1484 (1956) ; Joseph v. Esperdy, 267 E.Supp. 492 (S.D. N.Y.1966) ; cf. United States v. Briscoe, 139 U.S.App.D.C. 289, 432 F.2d 1351 (1970).

17 . .267 F.Supp. 492 (S.D.N.Y.1966).

18 . Id. at 494 (emphasis in original).

19 . Amends. YI, XIY.

20 . Art. I, § 11.

21 .457 P.2d 650, 653 (Alaska 1969) ; accord, Condon v. State, Op.No. 802, 498 P.2d 276 (Alaska 1972) ; Thessen v. State, 454 P.2d 341, 352 (Alaska 1969), cert, denied, 396 U.S. 1029, 90 S.Ct. 588, 24 L.Ed.2d 525 (1970) ; Mead v. State, 445 P.2d 229, 233 (Alaska 1968) ; Anderson v. State, 438 P.2d 228, 230-231 (Alaska 1968). See also Johnson v. State, 486 P.2d 379, 380 (Alaska 1971) ; Dim-mick v. State, 473 P.2d 616, 618 (Alaska 1970) ; Lewis v. State, 469 P.2d 689, 692 n. 3 (Alaska 1970).

22 . 473 P.2d 616, 618 (Alaska 1970) (footnote omitted).

23 . United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert, denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950).

24 . United States v. Sambro, 454 F.2d 918 (D.C.Cir. 1971) ; United States v. Bris-coe, 139 U.S.App.D.C. 289, 432 F.2d 1351 (1970) ; United States v. Parrino, 212 F.2d 919 (2d Cir. 1954).

25 . We do not discuss, for we consider unfounded, Tafoya’s third argument, that he was deprived of due process by virtue of the superior court’s refusal to determine whether or not he should be deported. 8 U.S.C. § 1251(b) allows, but does not require, the sentencing court to recommend either for or against deportation. Moreover, here the superior court considered the motion to add a recommendation to the judgment. In denying that motion, the superior court judge stated that he thought that the possibility of deportation was an appropriate element of judgment and that the court would liave been more comfortable with the light sentence imposed had the judge known deportation was a possibility.