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                                                 ADVANCE SHEET HEADNOTE
                                                           February 10, 2020

                                    2020 CO 8

No. 17SC815, Juarez v. People—Criminal Law—Plea—Effective Assistance—
Immigration

      Juarez petitioned for review of the court of appeals’ judgment affirming the

denial of his motion for postconviction relief. With regard to his challenge to the

effectiveness of his counsel, the district court found both that defense counsel

adequately advised his client concerning the immigration consequences of his plea

of guilty to misdemeanor drug possession and that, in any event, there was no

reasonable probability Juarez would not have taken the plea. The intermediate

appellate court similarly found that counsel’s advice fell within the range of

competence demanded of attorneys in criminal cases, but as a result of that

finding, the appellate court considered it unnecessary to address the question

whether counsel’s performance prejudiced Juarez.

      The supreme court affirmed, ruling that because Juarez conceded he was

advised and understood that the misdemeanor offense to which he pleaded guilty

would make him “deportable,” defense counsel’s advice concerning the
immigration consequences of his plea correctly informed him of the controlling

law and therefore did not fall below the objective standard of reasonableness

required for effective assistance concerning immigration advice.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                  2020 CO 8

                     Supreme Court Case No. 17SC815
                   Certiorari to the Colorado Court of Appeals
                    Court of Appeals Case No. 13CA1296

                                  Petitioner:

                                Alfredo Juarez,

                                       v.

                                 Respondent:

                     The People of the State of Colorado.

                             Judgment Affirmed
                                   en banc
                              February 10, 2020



Attorneys for Petitioner:
Megan A. Ring, Public Defender
John Plimpton, Deputy Public Defender
      Denver, Colorado

Attorneys for Respondent:
Philip J. Weiser, Attorney General
Carmen Moraleda, Senior Assistant Attorney General
      Denver, Colorado


CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL concurs in the judgment, and JUSTICE MÁRQUEZ joins in
the concurrence in the judgment.
      Juarez petitioned for review of the court of appeals’ judgment affirming the

denial of his motion for postconviction relief. With regard to his challenge to the

effectiveness of his counsel, the district court found both that defense counsel

adequately advised his client concerning the immigration consequences of his plea

of guilty to misdemeanor drug possession and that, in any event, there was no

reasonable probability Juarez would not have taken the plea. The intermediate

appellate court similarly found that counsel’s advice fell within the range of

competence demanded of attorneys in criminal cases, but as a result of that

finding, the appellate court considered it unnecessary to address the question

whether counsel’s performance prejudiced Juarez.

      Because Juarez conceded he was advised and understood that the

misdemeanor offense to which he pleaded guilty would make him “deportable,”

defense counsel’s advice concerning the immigration consequences of his plea

correctly informed him of the controlling law and therefore did not fall below the

objective standard of reasonableness required for effective assistance concerning

immigration advice. The judgment of the court of appeals is therefore affirmed.

                                        I.

      In April 2012, Alfredo Juarez pleaded guilty to one class 1 misdemeanor

count of possessing a schedule V controlled substance, in exchange for the

dismissal of a charge of felony possession. As stipulated in the plea agreement, he

                                        2
received a sentence to two years of drug court probation. At the time of his offense

and plea, the defendant was a citizen of Mexico and a lawful permanent resident

of the United States.

      A month after his sentencing, the defendant violated the conditions of his

probation, received a suspended two-day jail sentence, and two weeks later, after

violating the conditions of that suspension, served those two days in jail. After he

received an additional three-day jail sentence for again violating his probation,

federal Immigration Customs and Enforcement (“ICE”) officers began removal

proceedings. The defendant was eventually deported to Mexico.

      In October 2012 and January 2013, the defendant filed motions for

postconviction relief, challenging the effectiveness of his plea counsel’s

representation and, as a result, the constitutional validity of his guilty plea. Over

a period of three days, the district court heard these motions, including the

testimony of the defendant, taken by video over the internet; the testimony of his

plea counsel; and the testimony of an immigration attorney retained by him in

2011, prior to his acceptance of the plea agreement. Following that hearing, the

court made findings and conclusions and denied the motions.            The hearing

revealed the following pertinent facts.

      The defendant was charged with a felony following the discovery of cocaine

on his person. After nearly a year of continuances, granted for the specific purpose

                                          3
of allowing him to address potential immigration issues prior to accepting any

plea agreement, the defendant finally agreed to plead guilty to class 1

misdemeanor possession of a controlled substance in exchange for the dismissal

of his felony charge. Prior to the court’s acceptance of the plea, defense counsel

made a record that he had spoken to two immigration attorneys, advised the

defendant to contact an immigration attorney himself after providing him with

several names, and clearly informed the defendant that the misdemeanor offered

by the prosecution was the equivalent of a felony under federal immigration law.

      At the postconviction hearing, defense counsel further testified that on a call

with him and the defendant, an immigration attorney explained that the plea offer

was not acceptable because it would likely get him deported, and that the

immigration attorney followed up the call with a letter, reiterating that the

proposed plea would probably result in deportation. Counsel further testified that

he consulted another immigration attorney who gave largely the same advice, and

that he communicated this response to the defendant, who understood that

deportation was the probable outcome of accepting the plea.

      The defendant himself also testified that in the process of renewing his

lawful permanent resident status, his own immigration counsel had informed him

that the plea could make him deportable. The defendant further testified that he

spoke to a second immigration attorney, who also informed him that the plea

                                         4
“would” make him deportable.          The defendant specifically conceded that

although no one told him that accepting the agreement and pleading guilty would

“automatically” make him deportable or that he actually “was going to get

deported,” nevertheless he understood that pleading guilty to the misdemeanor

“would” make him “deportable.”

      The district court reasoned that any distinction between being automatically

or mandatorily deportable and simply being deportable was illusory and in fact

that being so advised would have created a misleading impression of the

probability of deportation. Similarly, it found that the defendant regretted his plea

only after he violated his probation and was deported and therefore there was no

merit in his assertion that had he been told he would “automatically” be deported

he would not have accepted the plea agreement. After agreeing that the defendant

was adequately advised, the court of appeals found it unnecessary to opine

concerning the likelihood that but for inadequate advice, the defendant would

have rejected the plea offer.

                                         II.

      For the waiver of fundamental rights inherent in any guilty plea to be

effective, a pleading defendant must understand, among other things, the direct

consequences of his plea. Brady v. United States, 397 U.S. 742, 755 (1970) (for a

guilty plea to be voluntary it must, among other things, be entered by one “fully

                                         5
aware of the direct consequences”); People v. Birdsong, 958 P.2d 1124, 1128 (Colo.

1998) (“[T]he trial court must advise the defendant of the direct consequences of

the conviction to satisfy the due process concerns that a plea be made knowingly

and with a full understanding of the consequences thereof.”). In addition, before

pleading guilty to a crime, a defendant is entitled to advice from his counsel that

falls within the range of competence demanded of attorneys in criminal cases.

Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that two-part test from Strickland v.

Washington, 466 U.S. 668 (1984), applies to challenges to guilty pleas based on

ineffective assistance of counsel). Although it appears well settled that a trial court

is not required to advise a defendant sua sponte of potential federal deportation

consequences, People v. Pozo, 746 P.2d 523, 526 (Colo. 1987), defense counsel’s

obligations and the adequacy of his advice concerning the deportation

consequences of his client’s acceptance of a guilty plea have long been the subject

of debate in both state and federal law, compare People v. Soriano, 240 Cal. Rptr. 328,

333–36 (Cal. Ct. App. 1987) (determining that the defendant was denied effective

assistance of counsel because he was not adequately advised of the immigration

consequences of his plea), and People v. Pozo, 712 P.2d 1044, 1047 (Colo. App. 1985)

(determining that the defendant was denied effective assistance where defense

attorney did not research and advise the defendant with respect to deportation

consequences of guilty plea), rev’d, 746 P.2d 523 (Colo. 1987), and People v.

                                          6
Padilla, 502 N.E.2d 1182, 1186 (Ill. App. Ct. 1986) (determining that failure to advise

of    deportation     consequences       constitutes     ineffective    assistance      of

counsel), with Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972) (concluding that alien

defendant received effective assistance of counsel despite counsel’s failure to

advise of deportation consequences), and State v. Ginebra, 511 So. 2d 960, 962 (Fla.

1987) (determining that counsel’s failure to advise client of deportation

consequence does not constitute ineffective assistance of counsel), superseded by

rule as stated in State v. De Abreu, 613 So. 2d 453, 453 (Fla. 1993).

      More than thirty years ago, in Pozo, this court addressed a challenge to the

effectiveness of counsel for failing to advise of possible deportation consequences,

but unlike the intermediate appellate court considering the question before us, we

expressly declined to determine whether any such duty existed. 746 P.2d at 527.

Instead, relying heavily on then-existing federal law that permitted a sentencing

court to prevent deportation by recommending against it, we found that the

potential deportation consequences of guilty pleas in criminal proceedings

brought against alien defendants were material to critical phases of such

proceedings. Id. at 528–29. Rather than imposing a duty on counsel to advise

specifically of deportation consequences, we relied on the more fundamental

principle that attorneys must inform themselves of material legal principles that

may significantly impact the particular circumstances of their clients.              Id. at

                                            7
529–30. In the absence of an existing adequate record, we therefore remanded for

a determination whether defense counsel had reason to know of Pozo’s alien

status but nevertheless failed to conduct appropriate research into federal

immigration law. Id.

      Nearly   a   quarter   century   later,   emphasizing    that   the   “judicial

recommendation against deportation,” or “JRAD,” and the Attorney General’s

authority to grant discretionary relief from deportation had both been eliminated

from federal immigration law, the United States Supreme Court characterized that

law as now making removal “nearly an automatic result” and deportation as now

constituting an integral part of the penalty that may be imposed on noncitizen

defendants who plead guilty to specified crimes. Padilla v. Kentucky, 559 U.S. 356,

363–64, 366 (2010). Expressly finding the collateral versus direct distinction ill-

suited to evaluating a Strickland claim concerning the specific risk of deportation,

and noting that in any event the Supreme Court had never applied the distinction

between direct and collateral consequences to define the scope of constitutionally

reasonable professional assistance of counsel, the Court concluded simply that

advice regarding the unique consequence of deportation is not categorically

removed from the ambit of the Sixth Amendment right to counsel. Id. at 365–66.

      After considering various sources of professional responsibility, the Court

ultimately articulated counsel’s duty with regard to the first, or objective-

                                         8
standard-of-reasonableness, prong of the Strickland test in the context of this

unique kind of penalty, holding “that counsel must inform her client whether his

plea carries a risk of deportation.” Id. at 374. Acknowledging that immigration

law can be complex and that there will undoubtedly be cases in which the

deportation consequences of a particular plea will be unclear or uncertain, the

Court held that when “the law is not succinct and straightforward,” a defense

attorney need do no more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration consequences. Id. at 369. On the

other hand, when the deportation consequence is truly clear, the duty to give

correct advice is equally clear. Id. In Padilla itself, where federal law classified the

defendant’s particular crime as “deportable,” the Court considered “the terms of

the relevant immigration statute [to be] succinct, clear, and explicit in defining the

removal consequence for Padilla’s conviction.” Id. at 368.

                                          III.

      Whether or not our rationale in Pozo retains any force after the elimination

of judicial discretion as a means of affecting deportation, there can be little

question that counsel in the instant case went to substantial lengths to educate

himself and ensure that his client was fully informed of the immigration

consequences of taking the plea in question. The defendant’s counsel not only

secured a number of continuances for the very purpose of ensuring that his client

                                           9
was advised of and understood these consequences, but he also had the defendant

advised by an immigration attorney in his presence, and he personally advised the

defendant to seek further consultation with an immigration specialist, after

providing the defendant with a list of such specialists.

      From the record of the providency hearing, as well as the testimony of

defense counsel, the testimony of a separate immigration attorney who advised

him, and his own admissions, it was undisputed that the defendant was advised

and understood that the misdemeanor drug offense offered by the prosecution

would be treated as a felony conviction for purposes of federal immigration law;

that he could not afford to take the plea if he wanted to avoid deportation; and

that by taking the plea agreement he would in fact be made deportable. The

defendant has never asserted that he was affirmatively misinformed that he need

not worry about his immigration status, as was the defendant in Padilla, 559 U.S.

at 359, or that he was not advised that taking the plea in question would make him

deportable, just as would a plea to a felony. He testified only that he was never

advised that his plea would make him “automatically” deportable or that he

actually “was going to get deported.”

      The defendant now asserts that merely being advised that taking the plea in

question would make him deportable according to federal immigration law was

insufficient to satisfy the duty imposed upon defense counsel in Padilla to provide

                                         10
advice regarding the risk of deportation. Relying on specific terms used by the

Court in criticizing defense counsel’s erroneous advice in Padilla, the defendant

argues instead that adequate advice required counsel’s use of the terms “automatic

deportation” and “presumptively mandatory deportation,” and that advising him

he would probably be deported was in fact misleading.

      In articulating its holding (“we now hold”), the Padilla Court commanded

that “counsel must inform her client whether his plea carries a risk of deportation.”

Id. at 374. Drawing a distinction between immigration law that is not succinct and

straightforward in defining the removal consequence and immigration law that is

succinct and straightforward in defining the removal consequence, the Court

imposed a more limited duty of advice on defense counsel with regard to the

former than the latter. See id. at 369.       When “the law” is not succinct and

straightforward, counsel’s duty in this regard is limited to advising a noncitizen

client that pending charges may carry a risk of adverse immigration consequences,

but when the deportation consequence is truly clear, counsel has a duty to give

correct advice. Id.

      The “correct advice” that counsel has a duty to give therefore necessarily

refers to a correct explanation of “the law.” The immigration law at issue here is

the very law that the Supreme Court in Padilla found to be “truly clear,” for the

reason that it specified the deportation consequence for conviction of the crime to

                                         11
which Padilla was pleading guilty, by one of Padilla’s immigration status. That

consequence was that such an individual would be “deportable.” See 8 U.S.C.

§ 1227(a)(2)(B)(i) (2018) (“Any alien who at any time after admission has been

convicted of a violation of . . . 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.” (emphasis added)).      The “correct advice” concerning the legal

consequence of the defendant’s plea required in the instant case, just as it was in

Padilla, was that the alien defendant would, in the language of the statute, be

“deportable.” Id.; see also State v. Sanmartin Prado, 141 A.3d 99, 126, 128 (Md. 2016)

(holding defense counsel provided correct advice under Padilla by informing the

defendant    that    his   child   abuse      offense   is   “deportable”    because

8 U.S.C. § 1227(a)(2)(E)(i) defines it as such). That is precisely the advice the

defendant in the instant case was given.

      The term “presumptively mandatory” nowhere appears in the Court’s

opinion as a required advisement or as a description of the “correct advice”

required of clear statutes, but rather in an explanation why the advice given by

Padilla’s counsel was incorrect. See Padilla, 559 U.S. at 368–69. As the Court

indicated in its opinion, it was not hard to find counsel’s advice deficient for three

reasons: the consequences of Padilla’s plea could easily be determined from

                                         12
reading the removal statute, his deportation was presumptively mandatory, and

his counsel’s advice was incorrect. Id. Similarly, the Court never used the phrases

“automatic deportation” or “automatically deportable” in describing a required

advisement or “correct advice.” “Subject to automatic deportation” appears only

in an introductory passage of the opinion generally summarizing the Court’s

conclusion that defense counsel’s advice to the effect that the defendant need not

worry about his immigration status was deficient and that the question whether

the defendant would be entitled to relief for ineffective assistance of counsel would

therefore depend upon the second or prejudice prong of the Strickland standard, a

matter the Court for procedural reasons did not propose to address. Id. at 360.

The Court used the phrase “automatically deportable” only in the portion of its

opinion describing historical developments in federal immigration law. Id. at 362.

      In fact, the Padilla opinion does not again use the term “automatic

deportation” or suggest in the body of the analysis any requirement for counsel to

predict the likelihood that the law will actually be enforced and the defendant will

actually be deported. Besides undoubtedly being an accurate prediction, the

assessment by the defendant’s counsel, as well as that of the other immigration

specialists advising him, that if he took the offered plea agreement he would

probably be deported did not in any way detract from or minimize the “correct

advice,” which the defendant also received, that the legal consequence of his

                                         13
accepting the agreement would be to make him deportable. Quite the contrary,

being advised that one would probably be deported arguably implies that, as a

matter of law, he would at the very least be deportable.

      Whether such an advisement of probable consequences standing alone,

however, could demonstrate reasonable professional competence; whether, even

if so, prejudice could be established in the face of ignoring such an advisement; or

whether even correct advice concerning the legal consequence of such a plea might

nevertheless be deficient in light of other, contradictory advisements, are all

questions we need not answer. In the case before us, it is enough that the

defendant was correctly advised concerning both the legal consequence and the

practical implications of his plea.

                                        IV.

      Because Juarez conceded he was advised and understood that the

misdemeanor offense to which he pleaded guilty would make him “deportable,”

defense counsel’s advice concerning the immigration consequences of his plea

correctly informed him of the controlling law and therefore did not fall below the

objective standard of reasonableness required for effective assistance concerning

immigration advice. The judgment of the court of appeals is therefore affirmed.



JUSTICE GABRIEL concurs in the judgment, and JUSTICE MÁRQUEZ joins in
the concurrence in the judgment.
                                        14
JUSTICE GABRIEL, concurring in the judgment.

      The majority concludes that plea counsel’s advice to defendant Alfredo

Juarez regarding the immigration consequences of Juarez’s guilty plea to a class 1

misdemeanor drug possession count was correct and did not fall below the

objective standard of reasonableness required for effective assistance concerning

immigration advice. Maj. op. ¶ 22. In my view, however, counsel’s advice was

deficient under the standards set forth in Padilla v. Kentucky, 559 U.S. 356, 369

(2010), and People v. Pozo, 746 P.2d 523, 529 (Colo. 1987), because it did not

correctly convey the clear statutory deportation consequences of Juarez’s guilty

plea. Nonetheless, like the majority, I would affirm the judgment here because the

record does not support Juarez’s contention that but for counsel’s deficient advice,

he would not have pleaded guilty and instead would have proceeded to trial.

      Accordingly, I respectfully concur in the judgment only.

                             I. Factual Background

      No one disputes that under the applicable immigration statutes, Juarez’s

guilty plea in this case rendered him automatically deportable. See Padilla, 559 U.S.

at 363–64, 366 (noting that under contemporary law, if a noncitizen commits a

removable offense, then his or her removal is “practically inevitable” and that

“recent changes in our immigration law have made removal nearly an automatic

result for a broad class of noncitizen offenders”); United States v. Yansane,

                                         1
370 F. Supp. 3d 580, 586 (D. Md. 2019) (construing the immigration provision at

issue here as “automatically” rendering deportable defendants who are convicted

of any federal law or regulation relating to controlled substances). 1 Indeed, the

majority itself acknowledges the Supreme Court’s view that, under prevailing

immigration law, removal is now “nearly an automatic result” for noncitizen

offenders like Juarez, although the majority goes to some length to try to minimize

the import of the Court’s statement in that regard. Maj. op. ¶¶ 12, 19 (citing Padilla,

559 U.S. at 366).

      Plea counsel, however, did not advise Juarez of this applicable law. To the

contrary, counsel appears to have advised Juarez only that (1) his plea “could make

[him] deportable”; (2) if he took the plea offer, he would probably be deported; or

(3) if he took the plea offer, it “very likely [would] result in either deportation or

some type of exclusion from the United States.” (Emphases added.) In addition,

when, prior to accepting the plea offer, Juarez expressed his belief that a felony

might be viewed by immigration authorities as worse than a misdemeanor,

counsel did not correct Juarez’s misimpression, even though counsel knew that,




1 Although current law has changed the terminology from “deportation” to
“removal,” because counsel in this case advised Juarez in terms of “deportation,”
to avoid confusion, I, too, will generally use that term.

                                          2
from an immigration standpoint, Juarez’s plea to the misdemeanor would put him

in the same position as if he had been convicted of a felony. Instead, counsel told

Juarez, “[T]here’s a possibility over the next several years that maybe the law

might change, and if you’re looking at a misdemeanor versus a felony, might that

somehow benefit you [sic].”

      The matter proceeded to the providency hearing, and when the court asked

Juarez if he understood that his plea could affect his immigration status, Juarez

replied, “Yeah,” but indicated that he was willing to proceed because there was

nothing else that he could do. Specifically, Juarez made clear that he understood

that his counsel had tried to get a plea deal that would have avoided the possibility

of deportation but that the prosecutor would not make such an offer. Juarez thus

told the court, “[W]e got to go with what . . . we can do now,” and although an

immigration lawyer had told Juarez that the plea offer was unacceptable, Juarez

pleaded guilty.

                                   II. Analysis

      I begin by discussing the standards set forth in Padilla and Pozo. I then

address why I believe that plea counsel’s advice in this case was deficient. Last, I

turn to the question of prejudice, and I explain why I do not believe that counsel’s

deficient advice prejudiced Juarez on the facts presented here.




                                         3
                                A. Padilla and Pozo

        Addressing counsel’s obligations in a case like this, in Padilla, 559 U.S. at

368–69, the Supreme Court concluded that when “the terms of the relevant

immigration statute are succinct, clear, and explicit in defining the removal

consequence for [the defendant’s] conviction,” counsel must give “correct advice.”

In contrast, when the 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.” Id. at 369.

        In so concluding, the Supreme Court reached the same conclusion that we

had reached some twenty-three years earlier in Pozo, 746 P.2d at 529–30. See

People v. Hinojos, 2019 CO 60, ¶ 28, 444 P.3d 755, 761-62 (citing Pozo immediately

after   describing    defense   counsel’s       obligations   under   Padilla);   People v.

Chavez-Torres, 2019 CO 59, ¶ 26, 442 P.3d 843, 850 (same); Kazadi v. People, 2012 CO

73, ¶ 31, 291 P.3d 16, 25 (Bender, C.J., dissenting) (equating the obligations of

defense counsel set forth in Pozo, 746 P.2d at 529, with those set forth in Padilla,

559 U.S. at 374).

        Specifically, in Pozo, 746 P.2d at 529, we made clear that attorneys practicing

in Colorado who knew or had sufficient information to form a reasonable belief

that their client was a noncitizen had a duty to “investigate relevant immigration

law.” This duty, we said, stems “from the . . . fundamental principle that attorneys

                                            4
must inform themselves of material legal principles that may significantly impact

the particular circumstances of their clients.” Id. Moreover, we noted that in cases

involving noncitizen criminal defendants, “thorough knowledge of fundamental

principles of deportation law may have significant impact on a client’s decisions

concerning plea negotiations and defense strategies.”         Id.   Accordingly, we

remanded the case to determine, in light of the foregoing principles, whether

counsel’s failure to advise Pozo of the immigration consequences of his plea

constituted constitutionally ineffective assistance of counsel. Id. at 529–30.

                              B. Deficient Conduct

      Applying the foregoing principles here, I believe that plea counsel’s conduct

fell below the constitutionally mandated standards set forth in Padilla and Pozo.

      As noted above, in Padilla, 559 U.S. at 368–69, the Supreme Court concluded

that when “the terms of the relevant immigration statute are succinct, clear, and

explicit in defining the removal consequence for [the defendant’s] conviction,”

counsel must give “correct advice.” Here, as in Padilla, the consequences of

Juarez’s plea could “easily be determined from reading the removal statute.” Id.

at 369. Specifically, pursuant to applicable law, his plea made him automatically

deportable, such that his deportation was, in the words of the Padilla Court,

“practically inevitable.” See id. at 363–64, 366; Yansane, 370 F. Supp. 3d at 586.




                                          5
      Counsel, however, did not advise Juarez of this applicable law. Instead, he

told Juarez only that (1) his plea “could make [him] deportable”; (2) if he took the

plea offer, he would probably be deported; or (3) if he took the plea offer, it “very

likely [would] result in either deportation or some type of exclusion from the

United States.” (Emphases added.) Moreover, when Juarez expressed his belief

that a felony might be viewed by immigration authorities as worse than a

misdemeanor, counsel did not correct Juarez’s misimpression, even though

counsel knew that, from an immigration standpoint, Juarez’s plea to the

misdemeanor would put him in the same position as if he had been convicted of a

felony. Instead, counsel gave Juarez false hope that the law might change and that

a misdemeanor might be more beneficial than a felony.

      In my view, this was not the “correct advice” that Padilla and Pozo required

plea counsel to provide. As the majority correctly observes, those cases require

plea counsel to advise their clients correctly as to what the law is. Maj. op. ¶ 18.

Juarez’s counsel, however, did not so advise Juarez. Rather, he told Juarez, as a

factual matter, what he thought the likely outcome of Juarez’s plea would be. I do

not believe that this was sufficient under Padilla and Pozo.

      Nor do I agree with the majority’s apparent view that advising a defendant

that deportation is “probable” or “likely” is the same thing as advising the

defendant what the law is (here, that Juarez’s plea rendered him automatically


                                         6
deportable). Telling a defendant that deportation is probable or likely does not

tell him or her what the law is. It provides, instead, a factual prediction as to the

plea’s likely outcome.      Moreover, advising a defendant that deportation is

“probable” or “likely” tends to convey at least some possibility that deportation

might not occur. In my view, giving a defendant in a case like this such a false

sense of hope is contrary to what Padilla and Pozo require because misadvising a

defendant in this way interferes with his or her ability to make the voluntary,

intelligent, and knowing waiver of rights that must accompany a guilty plea.

      In contrast to advising a defendant that deportation is “probable” or

“likely,” advising defendants in cases like this that their pleas render them

automatically deportable provides the defendants with the correct statement of

the law that Padilla and Pozo mandate. And so advising a client does not tend to

convey false hope. Indeed, if anything, it tends to suggest a general lack of

discretion under the law.

      For these reasons, I would conclude that plea counsel’s advice in this case

was deficient. In my view, counsel’s advice understated the consequences of

Juarez’s guilty plea, and in endorsing such deficient advice, I believe that the

majority’s opinion substantially weakens the important safeguards that both

Padilla and Pozo have provided to noncitizen defendants who are considering

entering guilty pleas.


                                         7
                                    C. Prejudice

        The question for me thus becomes whether plea counsel’s deficient advice

prejudiced Juarez. On the facts of this case, I cannot say that it did.

        In the plea context, to establish the requisite prejudice, a defendant must

show a reasonable probability that but for counsel’s errors, the defendant would

not have pleaded guilty but instead would have insisted on going to trial. Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

        Here, the record establishes that in deciding whether to accept the plea offer,

Juarez was principally focused on the offer’s deportation consequences. The

record further shows that Juarez knew that his counsel had tried to get a plea offer

that would have avoided the possibility of deportation but that the prosecutor

would not make such an offer. And the record reveals that Juarez knew that if he

accepted the misdemeanor offer that was on the table, then he would probably be

deported. Notwithstanding all of the foregoing, and although an immigration

attorney had told him that the plea offer was unacceptable, Juarez chose to accept

that offer, telling the providency court, “[W]e got to go with what . . . we can do

now.”

        On these facts, I cannot say that but for plea counsel’s deficient conduct,

Juarez would probably have rejected the plea offer and would instead have

proceeded to trial. Although plea counsel did not properly advise Juarez as to the

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applicable law, as a factual matter, Juarez knew that his deportation was probable

or likely if he pleaded guilty to a misdemeanor, and against immigration counsel’s

advice, he pleaded guilty anyway. In such circumstances, I do not believe that the

record supports a finding that Juarez would have acted differently had he been

told that his plea rendered him automatically deportable, such that his removal

was practically inevitable.

        Accordingly, I would conclude that Juarez has not established the requisite

prejudice in this case.

                                 III. Conclusion

        For these reasons, although I believe that plea counsel provided deficient

advice regarding the immigration consequences of Juarez’s guilty plea, I do not

believe that Juarez has shown that he suffered any prejudice from that deficient

advice.

        Accordingly, like the majority, I would affirm the judgment below, but I

would do so on different grounds. I therefore respectfully concur in the judgment

only.

        I am authorized to state that JUSTICE MÁRQUEZ joins in this concurrence

in the judgment.




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