                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 12, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49048-0-II

                               Respondent,                    UNPUBLISHED OPINION

        v.

 JOSE RAMOS-CURIEL,

                               Appellant.

       BJORGEN, C.J. — Jose Ramos-Curiel appeals the denial of his motion to withdraw his

guilty plea to violation of a domestic violence no contact order. He contends that he is entitled to

withdraw his guilty plea because (1) his defense counsel was ineffective for failing to accurately

advise him about the immigration consequences of pleading guilty to the crime and (2) the trial

court misinformed him about the immigration consequences of pleading guilty. We affirm.

                                              FACTS

       On April 24, 2008, the State charged Ramos-Curiel with unlawful possession of a

controlled substance and violation of a domestic violence no contact order. Ramos-Curiel pled

guilty to the charges. Ramos-Curiel’s signed statement on plea of guilty form provided that, in

considering the consequences of his guilty plea, he understood that:
No. 49048-0-II


       If I am not a citizen of the United States, a plea of guilty to an offense punishable
       as a crime under state law is grounds for deportation, exclusion from admission to
       the United States, or denial of naturalization pursuant to the laws of the United
       States.

Clerk’s Papers (CP) at 6. In addition, the following exchange took place at Ramos-Curiel’s

October 14, 2008 plea hearing:

               [Trial court]: Do you understand—are you an American citizen?

               [Ramos-Curiel]: No.

             [Trial court]: Do you understand if you enter a guilty plea to a felony, you
       may be deported?

               [Ramos-Curiel]: Yes, I understand.

Report of Proceedings (RP) at 4. The trial court accepted Ramos-Curiel’s guilty pleas and

sentenced him to 20 days of incarceration.

       On March 16, 2016 Ramos-Curiel filed a CrR 7.8(b) motion to withdraw his guilty pleas.

On May 16, the trial court held an evidentiary hearing on Ramos-Curiel’s withdrawal motion.

At the hearing, Ramos-Curiel’s former defense attorney, Thomas Ladouceur, testified that it was

his standard practice to review every applicable provision contained in a guilty plea form with

his clients. Although Ladouceur testified that he had no independent recollection of reviewing

the guilty plea form’s immigration provision with Ramos-Curiel, he stated his belief that he

would have done so based on his standard practice.

       On May 27, the trial court denied Ramos-Curiel’s withdrawal motion and entered the

following findings of fact and conclusions of law:

       Based on the files and records herein, the testimony, argument of counsel, the Court
       finds the following:



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No. 49048-0-II


      1.     The parties stipulate that this Motion to Withdraw Guilty Plea is timely and
             properly before this Court.

      2.     That on October 14, 2008, the Defendant did plead guilty to the charges of
             Count I Violation Uniform Controlled Substance Act (possession of
             cocaine) and Count II Violation of Domestic Violence No Contact Order.

      3.     At that time the Defendant was represented by the attorney Tom Ladouceur.

      4.     That paragraph 4(i) of the Statement of Defendant on Plea of Guilty signed
             and entered by the Defendant states: “If I am not a citizen of the United
             States, a plea of guilty to an offense punishable as a crime under state law
             is grounds for deportation, exclusion from admission to the United States,
             or denial of naturalization pursuant to the laws of the United States.”

      5.     At the time of the guilty plea, the Defendant was not a US Citizen. Under
             the immigration law at the time a plea of guilty by the Defendant was made
             to the offenses stated, the Defendant would be deported.

      6.     Mr. Ladouceur went through the language of paragraph 4(i) of the
             Statement of Defendant on Plea of Guilty with the Defendant. Mr.
             Ladouceur does not recall whether he made any contact with an
             immigration attorney to determine the applicable law specific to the
             defendant pleading guilty as herein and then subsequently advise the
             Defendant of the information.

      7.     Mr. Ladouceur did properly advise the Defendant that the crimes he was
             pleading guilty to were deportable offenses. Mr. Ladouceur did not give
             wrong advice to the Defendant regarding the offenses.

      8.     The judge taking the plea also reviewed the language of paragraph 4(i) of
             the Statement of Defendant on Plea of Guilty with the Defendant. The judge
             made the finding the “defendant’s plea of guilty to be knowingly,
             intelligently and voluntarily made. . .”

      9.     That based on the law that applies to the time of the entry of the plea of
             guilty by the Defendant, Mr. Ladouceur gave appropriate legal advice and
             therefore did not provide ineffective legal assistance. Further, the language
             of the plea form and the colloquy of the judge were appropriate.

      Thus, the Court concludes:

      1.)    The Motion to Withdraw Guilty Plea has been timely made; and


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No. 49048-0-II


       2.)     Defendant did make a knowing, intelligent and voluntary plea to the charges
               of the above-entitled case.

       Therefore, the Motion to Withdraw Guilty Plea made pursuant to CrR[] 7.8(b)(5)
       is denied.

Clerk’s Papers (CP) at 132-34. Ramos-Curiel appeals from the trial court’s ruling denying his

withdrawal motion.1

                                           ANALYSIS

       Ramos-Curiel contends that the trial court erred in denying his CrR 7.8(b) motion to

withdraw guilty plea because (1) his defense counsel provided ineffective assistance during plea

negotiations by failing to advise him that his guilty plea to violation of a domestic violence no

contact order would result in certain deportation, and (2) the trial court misled him during the

plea colloquy by asking him whether he understood that he “may be deported” by pleading

guilty, rendering his guilty plea involuntary. RP (Oct. 14, 2008) at 4. We disagree with each

contention.

                                     I. STANDARD OF REVIEW

       A defendant is permitted to withdraw a guilty plea under CrR 4.2(f) “whenever it appears

that the withdrawal is necessary to correct a manifest injustice.” Additionally, CrR 7.8 governs

postjudgment motions to withdraw a guilty plea and provides in relevant part:

       (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
       Fraud; etc. On motion and upon such terms as are just, the court may relieve a party
       from a final judgment, order, or proceeding for the following reasons:
              ....

1
 On February 27, 2017, while his appeal was pending, the trial court entered an order vacating
Ramos-Curiel’s unlawful possession of a controlled substance conviction and dismissed the
charge with prejudice. On March 23, we granted Ramos-Curiel’s RAP 7.2(e) motion to give
effect to the trial court’s February 27 order and to withdraw his argument with regard to the
vacated conviction.

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No. 49048-0-II


               (5) Any other reason justifying relief from the operation of the judgment.

       A defendant seeking to withdraw a guilty plea in a postjudgment motion must meet the

requirements for a plea withdrawal under both CrR 4.2(f) and CrR 7.8. State v. Lamb, 175

Wn.2d 121, 128, 285 P.3d 27 (2012). In other words, to succeed on his postjudgment motion to

withdraw his guilty plea, Ramos-Curiel would have had to demonstrate both (1) that withdrawal

of his plea was necessary to correct a manifest injustice and (2) that relief from the final

judgment was justified by one of the reasons enumerated in CrR 7.8(b). Ramos-Curiel may

demonstrate a manifest injustice warranting withdrawal of his guilty plea if he shows that he

received ineffective assistance of counsel or that his plea was involuntary. State v. Pugh, 153

Wn. App. 569, 577, 222 P.3d 821 (2009) (citing State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d

699 (1974)). A showing that Ramos-Curiel received ineffective assistance of counsel or that his

plea was entered involuntarily would also satisfy the criteria for withdrawal of his guilty plea

under CrR 7.8(b)(5). See, e.g., State v. Martinez, 161 Wn. App. 436, 441, 253 P.3d 445 (2011),

appeal after remand, 189 Wn. App. 1050 (2015).

       We generally review a trial court’s denial of a motion to withdraw a guilty plea for an

abuse of discretion. Martinez, 161 Wn. App. at 440. However, when the trial court bases its

otherwise discretionary decision solely on application of the law to particular facts, the issue is

one of law, which we review de novo. State v. Martinez-Leon, 174 Wn. App. 753, 759, 300 P.3d

481 (2013). Additionally, where a trial court weighs evidence following a CrR 7.8 hearing, we

review its findings of fact for substantial evidence and its conclusions of law de novo. State v.

Schwab, 141 Wn. App. 85, 91, 167 P.3d 1225 (2007).




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No. 49048-0-II


          Ramos-Curiel assigns error to the trial court’s findings of fact 7 and 9, but only to the

extent that they contain the legal conclusion that his defense counsel had accurately advised him

of the immigration consequences of pleading guilty to violation of a domestic violence no

contact order. A conclusion of law erroneously described as a finding of fact is reviewed as a

conclusion of law. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986).

Accordingly, our review of this issue is de novo.

                               II. INEFFECTIVE ASSISTANCE OF COUNSEL

          Ineffective assistance of counsel can render a plea involuntary. State v. Sandoval, 171

Wn.2d 163, 169, 249 P.3d 1015 (2011). To prevail on his claim that his counsel was

constitutionally ineffective, Ramos-Curiel must demonstrate that (1) defense counsel’s

performance was deficient and (2) the deficient performance resulted in prejudice. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). If Ramos-Curiel fails to demonstrate

either prong, we need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563

(1996).

          A constitutionally competent defense attorney must advise a defendant of the

immigration consequences of entering into a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367,

130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Sandoval, our Supreme Court held that “[i]f the

applicable immigration law ‘is truly clear’ that an offense is deportable, the defense attorney

must correctly advise the defendant that pleading guilty to a particular charge would lead to

deportation.” 171 Wn.2d at 170 (quoting Padilla, 559 U.S. at 369). However, “[i]f ‘the law is

not succinct and straightforward,’ counsel must provide only a general warning that ‘pending




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No. 49048-0-II


criminal charges may carry a risk of adverse immigration consequences.’” Sandoval, 171 Wn.2d

at 170 (quoting Padilla, 559 U.S. at 369).

       We briefly discuss the facts underlying Padilla and Sandoval, as they illustrate the

relation between the clarity of immigration law and a defense counsel’s constitutionally required

immigration advice during plea negotiations. In Padilla, the defendant pled guilty to

transporting a significant amount of marijuana in his truck—an obviously deportable offense

under 8 U.S.C. section 1227(a)(2)(B)(i):

       “Any alien who at any time after admission has been convicted of a violation of (or
       a conspiracy or attempt to violate) any law or regulation . . . 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.”

559 U.S. at 359, 368 (quoting 8 U.S.C. § 1227(a)(2)(B)(i)). The Padilla Court determined that

this statutory provision was “succinct, clear, and explicit in defining the removal consequence

for Padilla’s conviction.” Padilla, 559 U.S. at 368. By simply “reading the text of the statute,”

Padilla’s defense counsel could have determined that a guilty plea would subject the defendant to

deportation. Padilla, 559 U.S. at 368. Defense counsel was thus ineffective for misadvising

Padilla that he would not have to worry about immigration status because he had been in the

country so long. Padilla, 559 U.S. at 368-69.

       Similarly, in Sandoval defense counsel advised the defendant to “accept the State’s plea

offer [to third degree rape] because he would not be immediately deported and that he would

then have sufficient time to retain proper immigration counsel to ameliorate any potential

immigration consequences of his guilty plea.” Sandoval, 171 Wn.2d at 167. Our Supreme Court

concluded that defense counsel performed deficiently by incorrectly dismissing the defendant’s

risk of deportation and not informing the defendant that third degree rape equated to an

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No. 49048-0-II


“aggravated felony” under federal immigration law, which subjected him to deportation.

Sandoval, 171 Wn.2d at 171.

       Here, unlike Padilla and Sandoval, it was not “truly clear” that deportation would follow

Ramos-Curiel’s guilty plea to violation of a domestic violence no contact order. The deportation

provision applicable to Ramos-Curiel’s violation of a domestic violence no contact order

conviction states:

       Violators of protection orders

       Any alien who at any time after admission is enjoined under a protection order
       issued by a court and whom the court determines has engaged in conduct that
       violates the portion of a protection order that involves protection against credible
       threats of violence, repeated harassment, or bodily injury to the person or persons
       for whom the protection order was issued is deportable. For purposes of this clause,
       the term “protection order” means any injunction issued for the purpose of
       preventing violent or threatening acts of domestic violence, including temporary or
       final orders issued by civil or criminal courts (other than support or child custody
       orders or provisions) whether obtained by filing an independent action or as a
       pendente lite order in another proceeding.

8 U.S.C. § 1227(a)(2)(E)(ii).

       8 U.S.C. section 1227(a)(2) lists numerous categories of criminal offenses that would

subject a person who is not a United States citizen to deportation. Subsection (a)(2)(E)(ii),

quoted above, is one of only three provisions that is not framed in terms of a criminal conviction.

Garcia-Hernandez v. Boente, 847 F.3d 869, 871 (7th Cir. 2017). In other words, the fact that

Ramos-Curiel was convicted of a statute prohibiting contact with a protected party, alone, would

not necessarily subject him to certain deportation under 8 U.S.C. section 1227(a)(2)(E)(ii).

       Instead, under at least the Ninth Circuit’s view, an immigration court would first need to

determine under a “categorical approach” whether the statute Ramos-Curiel had pled guilty to

violating, former RCW 26.50.110 (2007), included the full range of conduct covered by 8 U.S.C.

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No. 49048-0-II


section 1227(a)(2)(E)(ii). Alanis-Alvarado v. Holder, 558 F.3d 833, 836 (9th Cir. 2008) (quoting

Kawashima v. Mukasey, 530 F.3d 111, 1116 (9th Cir. 2008), withdrawn and superseded by

Kawashima v Holder, 615 F.3d 1043 (9th Cir. 2010)). If the immigration court determined that

the range of protection orders that could be issued under former RCW 26.50.110 was broader

than the scope of 8 U.S.C. section 1227(a)(2)(E)(ii), it would then employ the “‘modified

categorical approach,’” requiring it to

       “conduct a limited examination of the documents in the record of conviction . . .
       [to] determine whether there is sufficient evidence to conclude that the alien was
       convicted of the elements of the generically defined crime even though his or her
       statute of conviction was facially overinclusive.”

Alanis-Alvarado, 558 F.3d at 836 (quoting Kawashima, 530 F.3d at 1116).

       In contrast to the Ninth Circuit in Alanis-Alvarado, the Seventh Circuit in Garcia-

Hernandez held that neither the “categorical approach” nor the “modified categorical approach”

controls whether a non-United States citizen’s conduct subjected him or her to deportation under

8 U.S.C. section 1227(a)(2)(E)(ii). The Court stated:

       The text of (E)(ii) does not depend on a criminal conviction but on what a court
       “determines” about the alien’s conduct. Based on that significant textual difference
       between (E)(ii) and other provisions, we find that neither the categorical approach
       nor the modified categorical approach controls this case. What matters is simply
       what the state court “determined” about Garcia-Hernandez’s violation of the
       protection order.

       The key language, “the court determines,” does not require a conviction of a
       particular kind or the categorical approach at all. What matters is what the court
       “determines”. . . . If a court “determines” that the alien has engaged in conduct
       that violates a portion of the order that “involves protection against credible threats
       of violence, repeated harassment, or bodily injury,” that is enough for purposes of
       (E)(ii).

Garcia-Hernandez, 847 F.3d at 872.



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No. 49048-0-II


       As the differing analyses undertaken by the Seventh and Ninth Circuit Courts of Appeal

illustrate, the immigration consequences of pleading guilty to violation of a domestic violence no

contact order are complex and not easily determined by simply reading the text of 8 U.S.C.

section 1227(a)(2)(E)(ii). Rather, determining the immigration consequences of Ramos-Curiel’s

guilty plea to violation of a domestic violence no contact order required defense counsel to look

beyond the text of subsection (a)(2)(E)(ii), ascertain the proper mode of analysis in light of

conflicting federal circuit court opinions, and apply the proper analysis to the circumstances of

Ramos-Curiel’s case. Even after making such a determination, counsel could not be certain that

Ramos-Curiel would be deported as a result of his violation of a domestic violence no contact

order, since an immigration court would be required to make certain factual determinations about

the nature of the no contact order violation under either the modified categorical approach of the

Ninth Circuit or the analysis employed by the Seventh Circuit.

       We need not decide the extent to which defense counsel was required to examine the

circumstances of Ramos-Curiel’s charges to determine whether pleading guilty would satisfy a

specific ground for deportation under 8 U.S.C. section 1227(a)(2)(E)(ii). Although Ramos-

Curiel does argue that his trial attorney failed in his duty to research and correctly inform him of

the immigration consequences of pleading guilty, he does not argue that any feature of the

charges or likely evidence would satisfy the specific grounds in 8 U.S.C. section

1227(a)(2)(E)(ii).

       Through his signed statement on plea of guilty, Ramos-Curiel was advised that his plea

was “grounds for deportation, exclusion from admission to the United States, or denial of

naturalization pursuant to the laws of the United States.” CP at 6. In light of the complexities


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No. 49048-0-II


just discussed and the fact that conviction for a violation of a domestic violence no contact order

does not necessarily result in deportation, this advisement and defense counsel’s review of it

with Ramos-Curiel together was constitutionally sufficient under the case law examined above.

          Accordingly, Ramos-Curiel fails to demonstrate that the trial court erred by concluding

that defense counsel had accurately advised him of the immigration consequences of pleading

guilty to violation of a domestic violence no contact order. With that, findings of fact 7 and 9,

properly considered as conclusions of law, are upheld, and Ramos-Curiel has not shown that

defense counsel's performance was deficient. Thus, his claim of ineffective assistance of counsel

fails.2

                         III. TRIAL COURT DID NOT MISLEAD RAMOS-CURIEL

          Next, Ramos-Curiel appears to argue that the trial court misled him by asking at the plea

hearing whether he understood that he “may be deported” as a result of pleading guilty, rather

than asking whether he understood that he would be deported. RP at 4 (emphasis added). We

disagree.

          First, it appears that the trial court’s statement at issue referred only to Ramos-Curiel’s

charge of unlawful possession of a controlled substance, which we do not address in this appeal

by Ramos-Curiel’s request. Ramos-Curiel’s violation of a domestic violence no contact order



2
  Ramos-Curiel further argues that defense counsel was ineffective for not informing him that his
plea made him ineligible for cancellation of removal and reentry to the United States under 8
U.S.C. section 1229b(b). However, these consequences would arise for Ramos-Curiel under the
statute only if he were inadmissible or deportable. 8 U.S.C. § 1229b(b)(1). As discussed above,
at the time of his plea it was uncertain whether it would make him deportable. Thus, the
advisement that the plea was “grounds for deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States,” was adequate
warning of the potential future consequences. CP at 6.

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No. 49048-0-II


was charged and pled as a gross misdemeanor, and the trial court’s question in full reads, “Do

you understand if you enter a guilty plea to a felony, you may be deported?” RP at 4 (emphasis

added). Second, even if the trial court had referred to the violation of a domestic violence no

contact order charge, its question was appropriate given the uncertainty that deportation would

follow a conviction for that charge and the proper advisement given in the plea of guilty. The

trial court did not mislead the defendant about the immigration consequences of his plea.

                                          CONCLUSION

        We affirm the trial court’s denial of Ramos-Curiel’s CrR 7.8 motion to withdraw his

guilty plea to violation of a domestic violence no contact order.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




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