                                                                 I attest to the accuracy and
                                                                  integrity of this document
                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'04- 13:51:36 2016.10.03

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:2016-NMCA-077

Filing Date: June 27, 2016

Docket No. 33,165

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

MAYRA GUTIERREZ,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Jennifer E. DeLaney, District Judge

Hector H. Balderas, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Nicole S. Murray, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                       OPINION

BUSTAMANTE, Judge.

{1}      Defendant, who is not a United States citizen, pled guilty to a drug offense. The
district court then granted Defendant’s motion to withdraw her guilty plea and vacated her
conviction on grounds that defense counsel did not advise Defendant of the immigration
consequences associated with the plea as required by our Supreme Court in State v. Paredez,
2004-NMSC-036, 136 N.M. 533, 103 P.3d 799. We affirm.

I.     BACKGROUND

                                            1
{2}     On November 7, 2010, Defendant was arrested after entering the United States
through the Port of Entry at Columbus, New Mexico with nineteen bricks of marijuana
weighing more than twenty-one pounds concealed in her vehicle. At the time of her arrest,
Defendant was subjected to an immigration hold. Defendant is a citizen of Mexico, but her
father is a United States citizen, and she has two children that are United States citizens as
well. Defendant does not speak English and all communications in court took place through
an interpreter. Defendant was released after posting bond in the magistrate court and the
magistrate judge noted that the “parents will deal with immigration hold.”

{3}     After waiving a preliminary hearing, a criminal information was filed in the Luna
County District Court charging Defendant with distribution of marijuana (100 pounds or
less). The Honorable Gary Jeffreys presided over the proceedings from arraignment through
sentencing. At her arraignment on January 27, 2011, Defendant told the district court
through an interpreter that the United States Immigration and Customs Enforcement (ICE)
was “holding her papers” and asked for assistance in getting her green card released.
Defendant’s attorney said he would “work with [Defendant] on that.” The bond posted in the
magistrate court was continued, and Defendant’s conditions of release were amended to
allow her to travel outside of Luna County to receive obstetrical care due to problems with
her pregnancy.

{4}     Trial was set for May 26, 2011. However, the day before the scheduled trial, the
parties entered into a plea and disposition agreement in which Defendant agreed to plead
guilty to possession of eight ounces or more of marijuana, knowing that it was marijuana.
In addition, the parties agreed to an eighteen-month suspended sentence to be served on
supervised probation.

{5}     During the plea hearing, as the district court sought to ensure that the record
indicated a knowing and voluntary plea, there was a discussion between the district court,
counsel, and Defendant concerning Defendant’s immigration status. When asked by Judge
Jeffreys at the plea hearing about the “possibility [of] being deported,” Defendant (as
translated) responded: “[Defense counsel] advised me that with respect to this case there was
a possibility that I might be deported but it is up to the Immigration and Naturalization
Department if I am deported or not.” Defense counsel added:

       She understands there’s a high likelihood that she will be deported. At least
       with these charges that she’s pleading to, she will get a hearing before the
       court. Her other children are [United States] citizens and she has some—at
       least a remote chance—of staying. She understands it’s not a great chance.

{6}    In response to the district court’s question if there was an immigration hold on
Defendant, the prosecutor reported that ICE was aware of the plea hearing, but it was not
taking Defendant into custody at that time and would summon her to a hearing instead.
Defendant was eight months pregnant and ICE was concerned about liability issues
associated with a detainee having a baby while in custody. Defense counsel said that ICE

                                              2
technically had a hold on Defendant and that it was relying on the bond posted in the
magistrate court to secure her appearance. The district court found that Defendant’s guilty
plea was freely and voluntarily made, but reserved approving the plea and disposition
agreement. At Defendant’s request, sentencing was postponed until July 11, 2011.

{7}      Defendant’s July 11, 2011, sentencing date was continued to July 14, 2011, then to
August 15, 2011. When the parties appeared for sentencing on August 15, 2011, Defendant
asked for a further continuance because her immigration attorney needed more time “to get
her citizenship straightened out.” Defense counsel explained that Defendant was eligible for
citizenship because her father was a United States citizen, but her citizenship had not yet
been formalized. Defendant told the district court that her immigration attorney had told her
the resolution of her immigration status might take “one day or a year.” The State opposed
a further continuance because the plea agreement specifically addressed Defendant’s lack
of citizenship and that Defendant would suffer adverse immigration consequences as a result
of her crime.

{8}     The district court remarked that resolution of Defendant’s citizenship status was
material to approval of the plea and disposition agreement because if Defendant was not a
United States citizen, it would remand Defendant to ICE for removal and not impose the
agreed-upon suspended sentence. The district court agreed to continue sentencing for an
additional thirty days and made it clear that if Defendant’s citizenship was not resolved by
that time, or if Defendant was not a United States citizen, it would reject the plea and
disposition agreement unless Defendant agreed to be remanded to ICE.

{9}      At the sentencing hearing on September 15, 2011, Defendant’s attorney told the
district court that Defendant’s immigration attorney advised him that as long as Defendant
was not sentenced to a term of incarceration, Defendant’s conviction should not have a
negative impact on her immigration case, but that Defendant needed to understand “there are
no guarantees.” When asked, Defendant told the district court that she understood what her
attorney had said and that she understood there were no guarantees that she would not be
deported. The district court thereupon imposed the suspended sentence agreed upon in the
plea agreement, adding that if Defendant was deported, supervised probation would revert
to unsupervised probation with the sole condition that Defendant not reenter the United
States illegally. The judgment and sentence was filed on October 3, 2011.

{10} Almost nineteen months later, after Defendant had completely served her sentence
of probation, she was detained by ICE in El Paso, Texas facing deportation as a result of her
conviction. Defendant filed a “motion for relief from judgment and to withdraw plea and
request for evidentiary hearing.” Defendant asserted that her trial counsel was ineffective
because counsel had not adequately advised her of the immigration consequences of her
plea, and as a consequence, her guilty plea was not knowingly, intelligently, and voluntarily
made. In pertinent part, Defendant alleged that (1) she only recalled being told that she could
possibly be deported as a result of the plea; (2) when the district court asked her if she was
aware of the consequences of her guilty plea, she responded that she was told she could

                                              3
possibly face deportation; (3) she did not recall any conversation in which she was informed
“with exactitude” that if she entered into the plea agreement and was convicted, she would
be removed from the United States and denied discretionary relief during the removal
process; (4) her attorney did not recall specifically informing Defendant that she would
surely be deported as a result of the guilty plea; and (5) had she known the immigration
consequence of her plea agreement, “she would not have entered into the plea agreement.”

{11} Judge Jeffreys having retired, the motion was heard and ruled upon by the Honorable
Jennifer DeLaney. In addition, Defendant was represented by new counsel. Hereinafter, we
refer to the lawyer who represented Defendant in connection with entry of the plea
agreement as “trial counsel” and to Judge Delaney as the “district court.”

{12} At the hearing on Defendant’s motion to withdraw the plea on July 15, 2013, trial
counsel testified that he remembered that Defendant and her father were in the process of
formalizing Defendant’s citizenship status, and that he met with Defendant’s immigration
attorney but he could not remember when. In regard to advising a client about immigration
consequences of a guilty plea, trial counsel testified that his practice was to try to be as
thorough as possible, but he could not recall specifics of his conversation with Defendant.
He could not “recall a specific conversation” in which he advised Defendant “with
exactitude that she would be deported, lose her discretionary rights, . . . not be able to bond
out, [and] not be able to come back to the United States.”

{13} Defendant testified she was being held by ICE at the detention center in El Paso and
that an immigration judge told her she was being deported because of her conviction in this
case. She remembered going before Judge Jeffreys to plead guilty and a few months later for
sentencing. She also remembered speaking to her immigration attorney after pleading guilty
because she was told she could become a United States citizen. Defendant testified that she
did not recall talking with trial counsel about her immigration status before pleading guilty.
However, when asked if trial counsel told her she was going to be deported if she pled guilty,
Defendant answered, “absolutely not.”

{14} Defendant argued that case law requires it must be shown on the record “that a
defendant is aware, with exactitude, of all immigration consequences which [she will] face,
prior to entering into a plea, or the plea is not knowing[ly], intelligently, and voluntarily
given.” The State argued that trial counsel’s lack of memory of specifically what happened
and when was not sufficient to establish ineffective assistance of counsel, and in any event,
Defendant had not testified that, but for the advice given to her by trial counsel, she would
not have pled guilty. The district court delayed its ruling on the motion to review the record
of Defendant’s plea and sentencing hearings and to review case law.

{15} Four days later, the district court announced its decision at a hearing. Agreeing with
defense counsel that the operative date to consider whether adequate advice was given was
the date of the plea hearing, the district court ruled:


                                              4
       It is my finding that [trial counsel] through the statements made to the court
       on the May 25th 2013 plea date was effective . . . and adequately advised his
       client of the high probability of deportation. And the fact that she would be
       able to have a hearing before the immigration court to determine whether that
       was going to happen. And based on that, I find the motion asking for the plea
       to be withdrawn is denied.

{16} Defendant immediately asked the district court to reconsider, asserting that it could
consider what transpired at the sentencing hearing as well as the plea hearing. In response,
the district court stated, “I did have major concerns with the way in which the sentencing
hearing took place[, b]ecause it was a complete reversal of what was indicated[,]” even
though Judge Jeffreys had indicated “that there were no guarantees[.]” The district court then
reversed its initial ruling and granted Defendant’s motion. The State appeals.

II.    DISCUSSION

A.     Jurisdictional Issues

{17} We must determine at the outset whether we have jurisdiction over the State’s appeal.
See State v. Favela, 2013-NMCA-102, ¶ 6, 311 P.3d 1213, aff’d on other grounds by 2015-
NMSC-005, ¶ 2, 343 P.3d 178. Our review of the jurisdictional question is de novo. Id. ¶ 6.

{18} We are faced with two jurisdictional questions. The first is whether Defendant’s
motion to withdraw her plea was timely. The State contends that, since Defendant’s motion
was not a timely motion to withdraw the guilty plea under NMSA 1978, Section 39-1-1
(1917) or Rule 5-304 NMRA, the district court did not have jurisdiction to hear it, and its
order granting the motion is a nullity. Defendant counters that her motion was filed pursuant
to Rule 1-060(B)(4) NMRA, not Section 39-1-1 or Rule 5-304, and therefore was timely.

{19} The second jurisdictional issue is whether the district court’s order withdrawing the
plea is a final, appealable order. Defendant argues that it is not because the district court
order simply allowed Defendant to withdraw her plea and the case must still be tried. The
State responds by asserting that it has a “constitutionally[]guaranteed and
statutorily[]recognized right to appeal from [an] order [granted under Rule 1-060(B)(4)].”

{20} We begin with the first issue. The district court ruled that it had jurisdiction over this
matter pursuant to State v. Tran, 2009-NMCA-010, 145 N.M. 487, 200 P.3d 537, and Rule
1-060(B)(4), which provides for relief from a judgment when it is void. In Tran, the
defendant, who had been discharged from his sentences, 2009-NMCA-010, ¶¶ 8, 10, sought
to set aside his convictions on the ground that he was inadequately advised of the
immigration consequences of his guilty pleas. Id. ¶¶ 11-12. His motion was denied and the
defendant appealed. Id. Although the defendant styled his motion as a petition for a writ of
coram nobis, this Court considered the defendant’s motion as falling under Rule 1-
060(B)(4). Tran, 2009-NMCA-010, ¶ 17. We also noted that “there is no limitation of time

                                              5
within which a motion must be filed under the provisions of Rule [1-060(B)(4)].” Tran,
2009-NMCA-010, ¶ 16 (internal quotation marks and citation omitted); In re Estate of Baca,
1980-NMSC-135, ¶ 10, 95 N.M. 294, 621 P.2d 511 (“A judgment which is void is subject
to direct or collateral attack at any time.”). Here, like in Tran, after completing her sentence,
Defendant sought to set aside her conviction due to her attorney’s failure to advise her of the
immigration consequences of a guilty plea. We conclude that the district court properly
considered Defendant’s motion under Rule 1-060(B)(4), that the motion was timely, and that
the district court’s order is not a nullity. See State v. Lucero, 1977-NMCA-021, ¶ 4, 90 N.M.
342, 563 P.2d 605 (“Although Rule [1-0]60[(B)]) is a civil rule, State v. Romero, [1966-
NMSC-126, 76 N.M. 449, 415 P.2d 837,] . . . held that where a prisoner had served his
sentence and had been released, this civil rule could be utilized to seek relief from a criminal
[judgment] claimed to be void.”).

{21} We turn to the second issue: whether the district court’s order granting the Rule 1-
060(B)(4) motion to withdraw Defendant’s plea is a final order from which the State may
appeal. “As a general rule, an order or judgment is not considered final unless it resolves all
of the factual and legal issues before the court and completely disposes of the case.” State
v. Heinsen, 2005-NMSC-035, ¶ 14, 138 N.M. 441, 121 P.3d 1040. The doctrine of “practical
finality” is an exception to the general principle of finality that is applied sparingly to permit
review in certain cases. For instance, the appellate courts “will review a court’s decision
when an order effectively disposes of the issues in a case, even though supplementary
proceedings are necessary to enforce the order[, and] where . . . the issue raised on appeal
will not be available for review if the state is deprived of an immediate appeal.” Id. ¶ 15
(citation omitted).

{22} Because Rule 1-060 is silent as to who may appeal and how and when an appeal is
taken, we must rely on other sources for our analysis. In a case similar to that here, this Court
held that the district court’s order permitting withdrawal of a plea “create[d] no finality in
that the charges against [the d]efendant . . . [were] not . . . dismissed. If anything, all cases
[were] reinstated and set for trial on the merits.” State v. Griego, 2004-NMCA-107, ¶ 17,
136 N.M. 272, 96 P.3d 1192. We rejected the state’s arguments for an exception to the
finality rule based on practical finality because “[n]ot to limit the doctrine of practical
finality would allow the exception to fast swallow the rule.” Id. (internal quotation marks
and citation omitted). We also rejected the state’s argument that it was entitled to appeal
under the New Mexico Constitution, which “guarantees the [s]tate’s right to appeal a
disposition that is contrary to law if the [s]tate is aggrieved by that disposition.” Id. ¶ 21; see
N.M. Const. art. VI, § 2. Based on the lack of factual support in the record, we stated that
“the [s]tate’s interest in enforcing plea agreements and the [s]tate’s ability to proceed to trial
after a significant lapse of time are not compelling enough to justify an exception to the final
judgment rule.” Griego, 2004-NMCA-107, ¶ 21.

{23} A different result was reached in Collado v. New Mexico Motor Vehicle Division,
2005-NMCA-056, 137 N.M. 442, 112 P.3d 303. In that case, two drivers signed uniform
traffic citations pleading guilty to traffic offenses. Id. ¶¶ 2-3. Contending that they

                                                6
misunderstood the implications of signing the citations with the “guilty” box checked, the
drivers filed petitions for a writ of mandamus in the district court asking that their pleas be
withdrawn and for an order that the Motor Vehicle Division (MVD) return their citation to
the metropolitan court for a trial on the merits. Id. The district court granted the relief sought
in both cases, and the MVD appealed. Id. ¶¶ 1, 2, 4. The district court orders did not end the
cases, but remanded them to the metropolitan court. Id. ¶ 6. Nevertheless, we concluded that
the orders were sufficiently final to invoke our jurisdiction under the practical finality rule
because the MVD would otherwise be unable to have the propriety of the remand orders
heard. Id.

{24} Neither of these cases is entirely analogous to the present facts. In Griego, the
defendant had not completed his sentence. Here, in contrast, Defendant’s motion was filed
after she had completed a sentence imposed after entry of the plea. Thus, the underlying
criminal case had terminated, and the motion initiated a collateral attack on the criminal
judgment. In Collado, the state’s issue on appeal challenged the district court’s jurisdiction
based on procedural inadequacies in the petitions for writ of mandamus. 2005-NMCA-056,
¶ 8; see Heinsen, 2005-NMSC-035, ¶ 19 (discussing Collado). The issue did not pertain to
the state’s ability to appeal the district court’s order to withdraw the pleas on the merits.
Although instructive, we conclude that neither Griego nor Collado is dispositive here.

{25} Having determined that Griego and Collado do not resolve the issue, we examine the
nature of Defendant’s motion itself. Cf. State v. Roybal, 2006-NMCA-043, ¶ 17, 139 N.M.
341, 132 P.3d 598 (“[I]t is the substance of the motion, and not its form or label, that
controls.”). The Court in Tran noted that a motion to withdraw a plea based on a deficiency
in counsel that rendered the judgment void was essentially a petition for a writ of coram
nobis. 2009-NMCA-010, ¶ 15. The writ of coram nobis was a common law procedure
utilized in criminal cases by “one who, though convicted, is no longer in custody, to provide
relief from collateral consequences of an unconstitutional conviction due to errors
of . . . such a fundamental character that the proceeding itself [was] rendered invalid,
permitting the court to vacate the judgment.” Id. ¶¶ 14-15; see also State v. Barraza, 2011-
NMCA-111, ¶ 4, 267 P.3d 815 (describing in general terms the development and use of the
writ of coram nobis). However, with the adoption of Rule 1-060, “[w]rits of coram nobis,
coram vobis, audita querela, and bills of review and bills in the nature of a bill of review,
[were] abolished[.]” Rule 1-060(B)(6). Even so, “it was the intent to retain all the substantive
rights protected by [these] old common law writs . . ., but to eliminate the niceties of form
of these writs.” Romero, 1966-NMSC-126, ¶ 15. “The purpose of the rule was to substitute
in place of these writs a simplified procedure whereby the same questions of right could now
be raised by motion.” Id.

{26} At common law, the state’s right to appeal the grant of a writ of coram nobis
depended on whether the proceedings were independent of the underlying action. See 18
Am. Jur. Trials 1 § 45 (originally published in 1971) (“The right to appeal a judgment or
order denying coram nobis relief depends to a great extent on whether the coram nobis
proceeding is considered to be a separate proceeding or whether it is viewed as part of the

                                                7
original criminal proceeding.”). This is because the order entered in a separate civil
proceeding is considered to finally dispose of that proceeding and therefore is a final order
subject to appeal, even though it may not completely resolve the underlying case. Cf. NMSA
1978, § 39-3-2 (1966) (permitting appeal by an aggrieved party from “any final judgment
or decision, any interlocutory order or decision which practically disposes of the merits of
the action, or any final order after entry of judgment which affects substantial rights[.]”).
Although it appears that many courts consider a coram nobis proceeding to be an
independent proceeding, others have held that it is part of the original criminal matter. See
24 C.J.S. Criminal Law § 2264 (2016) (“Authorities differ as to whether a proceeding for
the writ is a new and independent one or is part of the original criminal proceeding.”); Ruby
v. State, 724 A.2d 673, 677 (Md. 1999) (recognizing disparate holdings). For instance, the
Court of Appeals for the First Circuit held that “coram nobis proceedings are appealable as
civil matters. Thus, the government, like any other party, may appeal the grant or denial of
the writ as a final order.” Trenkler v. United States, 536 F.3d 85, 95 (1st Cir. 2008).
Similarly, the Maryland Court of Appeals, concluding that the state failed to appeal the grant
of the writ, held that “[a]t common law, a proceeding on a writ of error coram nobis was a
civil matter procedurally independent of the underlying judgment being contested.” Ruby,
724 A.2d at 677, 679 (emphasis omitted); see also State v. Tejeda-Acosta, 2013 Ark. 217,
at 3-4, 427 S.W.3d 673, 675 (noting that the state’s appeal from an order granting a writ of
error coram nobis was proper because the case was not required to satisfy criteria for appeals
in criminal cases). In contrast, the Oregon Supreme Court held that “a motion in the nature
of coram nobis is not, like habeas corpus, a new case, civil in nature, but simply a part of the
original criminal proceeding.” State v. Endsley, 331 P.2d 338, 340 (Or. 1958) (en banc); see
also State v. Bibby, 252 So. 2d 662, 665 (Ala. Crim. App. 1971) (stating that “absent an
express authorization by the [l]egislature of some specific officer, an appeal on behalf of the
[s]tate cannot be entertained where the judgment below grants a convict relief from a
judgment of conviction by way of the writ of error, coram nobis”).

{27} Romero seems to indicate that coram nobis proceedings, if they still exist, are
separate proceedings. 1966-NMSC-126, ¶ 13 (“At common law such writs . . . were and still
are generally considered to be civil in nature, even though used to question a judgment and
sentence in a criminal case.”). The Court cited to People v. Kemnetz, 15 N.E.2d 883 (Ill.
App. Ct. 1938), which expressly stated:

       It has been repeatedly held that a motion or petition filed in the nature of a
       writ of error coram nobis stands as a declaration or complaint in a new suit,
       and it is only because the proceeding so instituted is civil in character that the
       right of the state to appeal from the judgment entered in such proceeding has
       been generally recognized by the authorities.

Id. at 886. The Kemnetz court also referred to and quoted from People ex rel. Courtney v.
Green, 189 N.E. 500 (Ill. 1934). In Green, the Illinois Supreme Court noted that while its
procedural rules had abolished the common law writ of coram nobis, those rules also
provided that errors which might have been corrected by that writ could still be reached by

                                               8
motion and that “[s]uch motion or petition is the commencement of a new suit.” Id. at 501-
02. Kemnetz relied on the ruling in Green to hold that, in a proceeding brought by such a
motion,

       [t]he issue made and the judgment sought concern only the setting aside of
       the original judgment entered. The order made on such motion is a final order
       and directly reviewable as a final judgment. . . . Since the judgment entered
       upon such proceeding is final and the proceeding is civil in its nature, either
       the state or the defendant is entitled to a review of the judgment of the court
       entered on such motion or petition.

Kemnetz, 15 N.E.2d at 886 (internal quotation marks omitted) (quoting Green, 189 N.E. at
502).

{28} In spite of these citations, Romero only explicitly addressed whether the district court
properly considered the defendant’s petition for a writ of coram nobis under Rule 1-
060(B)(4). It did not address whether the proceeding was a separate, independent proceeding
or whether the state would have had a right to appeal the grant of the writ. See Sangre de
Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-076, ¶ 23, 84 N.M. 343, 503 P.2d 323
(“The general rule is that cases are not authority for propositions not considered.”). Hence,
we conclude that Romero, as well as the out-of-state cases addressing appeal of the grant of
a coram nobis writ, are at best persuasive authority for allowing the State’s appeal, although
they are hardly definitive on the matter.

{29} We therefore approach the question a third way: by review of a similar rule. As a
collateral attack on a judgment, a petition for writ of coram nobis, even when filed under the
auspices of Rule 1-060(B)(4), is similar to a petition for a writ of habeas corpus. See Rule
5-802 NMRA (governing petitions for a writ of habeas corpus); Tran, 2009-NMCA-010, ¶
18 (referring to a motion to set aside a judgment based on an attorney’s failure to advise of
immigration consequences as a collateral attack). Since both habeas corpus and coram nobis
writs may be used to challenge a judgment on the ground of ineffective assistance of
counsel, the main distinction between a writ of coram nobis and a writ of habeas corpus lies
in whether the defendant is in custody. Barraza, 2011-NMCA-111, ¶ 10. Habeas corpus
applies if the defendant is in custody, whereas coram nobis applies when the defendant is no
longer in custody. Id. (holding that coram nobis relief under Rule 1-060(B) is not available
unless a defendant demonstrates that habeas corpus relief under Rule 5-802 is not available
or is otherwise inadequate). The habeas corpus rule provides that “if the writ [of habeas
corpus] is granted, the state may appeal as of right pursuant to the Rules of Appellate
Procedure[.]” Rule 5-802(L)(1). The similarities between the two writs suggest that they
should function similarly, i.e., the State should enjoy the same right to appeal in coram nobis
proceedings as in habeas proceedings. On the other hand, Rule 5-802 expressly provides for
the state’s appeal, whereas Rule 1-060(B) does not.

{30}   The final piece of the puzzle is found in a recent rule promulgated by our Supreme

                                              9
Court. In December 2014, the Supreme Court adopted Rule 5-803 NMRA to govern
petitions for post-sentence relief. Rule 5-803 is “effective for all cases filed on or after
December 31, 2014.” N.M. S. Ct. Order No. 14-8300-014. Rule 5-803(I)(1), like the habeas
corpus rule, expressly provides for state appeal of the grant of a petition: “if the petition [for
post-conviction relief] is granted, the state may appeal as of right to the Court of Appeals
under the Rules of Appellate Procedure.” Moreover, the Committee Commentary to Rule
5-803 states that “[Rule 5-803] is deemed to have superseded former Rule 1-060(B) . . . for
post-sentence matters involving criminal convictions, including the writ of coram nobis.”
(Emphasis added.) Thus, Rule 5-803 clarifies post-sentence petitions in criminal matters
significantly. In addition, it is consistent with the rules for habeas corpus petitions. We
recognize that Rule 5-803 was not in effect at the time of Defendant’s motion. Nevertheless,
it is an indication of the Supreme Court’s intent to permit appeals in cases similar to the one
at hand of such motions and to resolve the confusion engendered by use of Rule 1-060(B)(4)
in criminal matters.

{31} Although each of the foregoing analyses, standing alone, fails to completely settle
the question, taken together in light of the Supreme Court’s recent rule change, they militate
in favor of allowing the State’s appeal. We conclude that the State has a right to appeal the
grant of Defendant’s motion.

B.      Validity of the Plea

Standard of Review

{32} This case comes to us in a rather unusual procedural posture. It is rare to see the State
appeal from an order allowing a defendant to withdraw from a plea agreement. It is rarer still
to see the State appeal from the grant of such a motion filed pursuant to Rule 1-060(B). This
posture affects our standard of review. We review Rule 1-060(B) orders under the abuse of
discretion standard. Desjardin v. Albuquerque Nat’l Bank, 1979-NMSC-052, ¶ 12, 93 N.M.
89, 596 P.2d 858 (“The setting aside of a final judgment under Rule [1-060(B)] is within the
discretion of the district court.”). “Where the court’s discretion is fact-based, we must look
at the facts relied on by the trial court as a basis for the exercise of its discretion, to
determine if these facts are supported by substantial evidence.” Apodaca v. AAA Gas Co.,
2003-NMCA-085, ¶ 60, 134 N.M. 77, 73 P.3d 215 (internal quotation marks and citation
omitted). Under that standard, we review the factual record in the light most favorable to the
district court’s decision. State v. Barrera, 2001-NMSC-014, ¶ 12, 130 N.M. 227, 22 P.3d
1177 (“[Appellate Courts] resolve[] all disputed facts and draw[] all reasonable inferences
in favor of the successful party and disregard[] all evidence and inferences to the contrary,
viewing the evidence in the light most favorable to the trial court’s decision.”).

{33} In addition, Defendant’s motion below was premised on her prior counsel’s asserted
failure to adequately advise her concerning the immigration consequences flowing from her
plea. Based on our Supreme Court’s decision in Paredez, Defendant’s motion of necessity
asserted that her prior counsel provided her ineffective assistance. We review claims of

                                               10
ineffective assistance under a mixed standard of review, viewing the factual record in the
light most favorable to the court’s ruling but deciding de novo whether counsel was
ineffective as a matter of law. State v. Crocco, 2014-NMSC-016, ¶ 11, 327 P.3d 1068. Thus,
under both standards of review, we defer to the district court’s findings of fact when they are
supported by the record.

Analysis

{34} Where “a defendant is represented by an attorney during the plea process and enters
a plea upon the advice of that attorney, the voluntariness and intelligence of the defendant’s
plea generally depends on whether the attorney rendered ineffective assistance [of counsel].”
State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323, quoted in State v.
Tejeiro, 2015-NMCA-029, ¶ 5, 345 P.3d 1074. New Mexico follows Strickland v.
Washington, 466 U.S. 668 (1984), in evaluating claims of ineffective assistance of counsel.
Favela, 2015-NMSC-005, ¶ 10. Under Strickland, to prove a claim of ineffective assistance
of counsel, a defendant must show: “(1) that counsel’s performance fell below that of a
reasonably competent attorney[,] and (2) that [the d]efendant was prejudiced by the deficient
performance.” State v. Martinez, 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18. A
failure to comply with Paredez renders the attorney’s performance deficient—which satisfies
the first prong of Strickland. 466 U.S. at 687; Paredez, 2004-NMSC-036, ¶ 19.

{35}   We therefore begin our analysis with Paredez, in which our Supreme Court held:

       [C]riminal defense attorneys are obligated to determine the immigration
       status of their clients. If a client is a non-citizen, the attorney must advise that
       client of the specific immigration consequences of pleading guilty, including
       whether deportation would be virtually certain. Proper advice will allow the
       defendant to make a knowing and voluntary decision to plead guilty. . . . An
       attorney’s failure to provide the required advice regarding immigration
       consequences will be ineffective assistance of counsel if the defendant
       suffers prejudice by the attorney’s omission.

2004-NMSC-036, ¶ 19. Our Supreme Court has subsequently reaffirmed on two separate
occasions that Paredez requires defense counsel to determine the immigration status of a
client and advise a client, who is not a United States citizen, of the specific immigration
consequences of a guilty plea, including whether the guilty plea is virtually certain to result
in the client’s deportation. See Favela, 2015-NMSC-005, ¶ 10; Ramirez v. State, 2014-
NMSC-023, ¶ 7, 333 P.3d 240.

{36} In State v. Carlos, 2006-NMCA-141, ¶¶ 15-16, 140 N.M. 688, 147 P.3d 897, this
Court concluded that merely advising a client in general about the possible immigration
consequences of pleading guilty and of the range of different things that can happen at a
deportation hearing fails to satisfy Paredez. Because Paredez requires an attorney to provide
“a definite prediction as to the likelihood of deportation based on the crimes to which a

                                               11
defendant intends to plead and the crimes listed in federal law for which a defendant can be
deported[,]” Carlos, 2006-NMCA-141, ¶ 14, we interpreted Paredez “to require at a
minimum that the attorney advise the defendant of the specific federal statutes which apply
to the specific charges contained in the proposed plea agreement and of consequences, as
shown in the statutes, that will flow from a plea of guilty.” Carlos, 2006-NMCA-141, ¶ 15.

{37} In Tejeiro, this Court listed examples of inadequate advice of counsel. If an attorney
(1) fails to provide any advice of the consequences, (2) provides incorrect advice, (3)
misrepresents the consequences, (4) fails to provide a definite prediction as to the likelihood
of deportation based on the crime(s) to which the defendant intends to plead, (5) fails to
inform the defendant of the consequences short of deportation, or (6) fails to provide
guidance even in cases in which implications for immigration are not truly clear, then the
obligation imposed by Paredez is not satisfied. Tejeiro, 2015-NMCA-029, ¶ 7. We therefore
held that it was incumbent upon counsel to be well informed and to advise the defendant that
he could face deportation irrespective of whether the defendant successfully completed a
conditional discharge after pleading guilty to a single count of drug trafficking. Id. ¶ 12.

{38} Defendant pled guilty to possession of eight ounces or more of marijuana, knowing
it was marijuana, a fourth degree felony, in violation of NMSA 1978, Section 30-31-
23(B)(3) (2011). As such, Defendant was convicted of a deportable offense under 8 U.S.C.
§ 1227(a)(2)(B)(i) (2014) (providing that a non-citizen’s conviction for violating the law of
a state relating to a controlled substance, other than a single offense of possession for
personal use, thirty grams or less of marijuana, is a deportable offense); 8 U.S.C. §
1101(48)(A)(i) (2014) (stating that a plea of guilty constitutes a conviction). However,
because Defendant was not convicted of an “aggravated felony” as defined in 8 U.S.C. §
1101(a)(43) (2014), it appears she may have been eligible for cancellation of removal at the
discretion of the attorney general under 8 U.S.C. § 1229b(a)(3) (2014). See State v. Shata,
2015 WI 74, ¶¶ 59-60, 868 N.W.2d 93 (stating that although a controlled substance
conviction makes a non-citizen deportable, such a conviction will not necessarily result in
deportation due to the government’s prosecutorial discretion and immigration policies that
provide avenues for aliens to avoid deportation); Cun-Lara v. State, 273 P.3d 1227, 1237-39
(Haw. Ct. App. 2012) (stating that notwithstanding that conviction of a drug offense is
deportable, cancellation of removal is available under 8 U.S.C. § 1229b(a)).

{39} Given the district court’s grant of Defendant’s motion to withdraw the plea, we infer
that the district court found that Defendant did not clearly or properly appreciate the actual
immigration consequences of her plea. Viewed in the light most favorable to this ruling, the
record supports this finding. For example, when asked by Judge Jeffreys at the plea hearing
about the “possibility [of] being deported,” Defendant (as translated) responded: “[trial
counsel] advised me that with respect to this case there was a possibility that I might be
deported but it is up to the Immigration and Naturalization Department if I am deported or
not.” This response indicates clearly that Defendant was under the impression that
deportation was a “possibility” rather than a “probability” or “virtual certainty.” Given the
provisions of the applicable federal provisions, Defendant’s deportation was a “virtual

                                              12
certain[ty]” given the crime to which she was pleading. Paredez, 2004-NMSC-036, ¶ 19; 8
U.S.C. § 1227(a)(2)(B)(i) (2014).

{40} In addition, Defendant’s counsel spoke to the district court after Defendant’s
response, asserting that “[Defendant] understands there is a high likelihood that she will be
deported. At least with this charge that she is pleading to . . . she has some, at least a remote
chance, she understands it’s not a great chance.” Defendant’s expression of her
understanding of the potential effect of the plea stands in high contrast with counsel’s
statements. Despite the contrast, the district court did not pursue the matter further.

{41} Finally, Defendant’s trial counsel provided an affidavit in support of the motion for
relief from judgment. Trial counsel asserted in the affidavit that in his discussions with
Defendant about the case and the plea bargain, he did “not recall a conversation wherein I,
with specificity, explained to [Defendant] that she would without a doubt [be] removed from
the United States of America.”

{42} From Defendant’s statements during the plea hearing and trial counsel’s shifting
statements about the advice he gave her, the district court could reasonably have concluded
that Defendant did not understand that her plea made deportation a “virtual certainty.” The
district court could also have reasonably concluded that Defendant’s lack of understanding
was due to her counsel’s failure to explain the consequences to her well or clearly enough.

{43} This view of the record is bolstered by the colloquy between the court, Defendant,
and trial counsel at the sentencing hearing. Judge Jeffreys inquired about the status of the
effort to acquire citizenship for Defendant. In response, trial counsel explained that the
matter was still in process but that the immigration attorney handling the matter for
Defendant had stated that if Defendant was not actually imprisoned, the plea should have no
negative effect on the effort. This statement likely further misled Defendant as to the
consequences of the plea.

{44} During argument on the motion for relief from judgment, the district court noted that
she was concerned about certain statements made at the sentencing hearing. The exchange
described above could reasonably be seen as further evidence that Defendant had not been
properly and clearly advised about the effect of her plea—before the plea and thereafter.
That is, read in the light most favorable to permitting withdrawal of the plea, the record
supports the view that Defendant was not advised that deportation was a virtual certainty
given the charges to which she was pleading. Rather, the district court could have reasonably
concluded that Defendant was left with the impression that deportation was only a
“possibility” or perhaps at worst a “good” possibility.

{45} As for the second prong of the Strickland test, the district court also could have
reasonably concluded that “[d]efendant was prejudiced by the deficient performance.”
Martinez, 2007-NMCA-160, ¶ 19. Defense counsel made clear to the district court early on
that Defendant’s father was a United States citizen and that two of her children are United

                                               13
States citizens. See Carlos, 2006-NMCA-141, ¶ 21 (considering the defendant’s ties to this
country in the analysis of prejudice). Throughout the months leading up to the entry of the
plea, it was also clear that Defendant was seeking United States citizenship. As early as the
arraignment, Defendant sought the district court’s assistance in getting ICE to release her
green card. Roughly seven months later, in August 2011, the issue was still unresolved, and
Defendant requested a continuance of the sentencing hearing in order “to get her citizenship
straightened out.” Recognizing that her immigration status was uncertain, the district court
noted that resolution of Defendant’s citizenship status was material to approval of the plea
and disposition agreement and agreed to continue sentencing. “[This] record indicates that
there is a distinct possibility that . . . if Defendant had been properly advised, [s]he would
not have pleaded guilty” and supports the district court’s conclusion that the second prong
was satisfied. Paredez, 2004-NMSC-036, ¶ 22.

{46} Given the facts in the record supporting the district court’s implicit findings of fact,
affirmance is required. In this area of law, we are fortunate to have a clear expression of the
standard to which competent counsel are held. Paredez makes clear that “when a defendant’s
guilty plea almost certainly will result in deportation, an attorney’s advice to the client that
he or she ‘could’ or ‘might’ be deported would be misleading and thus deficient.” Id. ¶ 15.
Our Supreme Court in Paredez also made clear that “criminal defense attorneys are obligated
to determine the immigration status of their clients. If a client is a non-citizen, the attorney
must advise that client of the specific immigration consequences of pleading guilty,
including whether deportation would be virtually certain.” Id. ¶ 19. Under the applicable
federal statute, Defendant’s deportation was “virtually certain” after her plea. Any advice
that did not convey that message was deficient. The district court having apparently—and
reasonably—concluded that the appropriate message was not conveyed to Defendant clearly,
the order must be affirmed.

III.   CONCLUSION

{47}   The order of the district court is affirmed.

{48}   IT IS SO ORDERED.

                                               ____________________________________
                                               MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge

____________________________________
JONATHAN B. SUTIN, Judge


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