      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                       ^

In the Matter of the Personal                   No. 71082-6-1
                                                                                   CO
Restraint of
                                                                                    i
                                                DIVISION ONE                       en

SANTOS W. ORANTES,
                                                PUBLISHED OPINION
                       Petitioner.
                                                FILED: February 6, 2017                 C'-'



       Leach, J. — For the second time, Santos Orantes collaterally challenges

his 2006 judgment and sentence based on his guilty plea. He asks to withdraw

this plea because his trial counsel did not accurately advise him about the plea's

consequences for his immigration status. The State claims that this challenge is

untimely and should have been included in Orantes's first challenge.

       Because the Supreme Court's 2010 decision in Padilla v. Kentucky1 made

a "significant change in the law" "material to" Orantes's conviction, Orantes's

petition is timely.2    And because this court's 2012 decision finding Padilla

retroactive was an "intervening change[ ] in case law" after Orantes's first

challenge, his second challenge can proceed.3 We remand for the trial court to

conduct a reference hearing on the merits of Orantes's claim.


       1 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
       2 RCW 10.73.100(6).
       3 In re Pers. Restraint of Turav, 153 Wn.2d 44, 49, 101 P.3d 854 (2004);
see In re Pers. Restraint of Jaqana, No. 66682-7-I, slip op. at 25 (Wash. Ct. App.
Aug. 13, 2012), http://www.courts.wa.gov/opinions/pdf/666827.pdf, withdrawn
Aug. 21,2013.
No. 71082-6-1/2




                                     FACTS


      Orantes is a Salvadoran national with temporary protected status (TPS) in

the United States.4 He has been convicted of two misdemeanors. Federal law

makes a person with these convictions ineligible for TPS renewal and thus

subject to deportation.5

       Orantes received his second conviction in 2006, when he pleaded guilty to

unlawfully issuing a bank check. The sentencing court imposed a deferred

sentence of 364 days of confinement. Orantes's attorney did not advise him that

pleading guilty would affect his immigration status. Orantes did not learn that his

plea would jeopardize his immigration status until the federal government denied

his application to renew his TPS.      In 2008, he moved to amend the 2006

judgment and sentence. Acting on counsel's advice, Orantes believed that his

immigration problem would be resolved if the court reduced his term of

confinement from 364 to 180 days. The court granted this relief. Orantes later

learned that his criminal history still made him ineligible for TPS. He is currently

in deportation proceedings.



       4 This court summarized the factual background at length in an
unpublished opinion dismissing Orantes's first petition. In re Pers. Restraint of
Orantes, noted at 170 Wn. App. 1006, 2012 WL 3264956. TPS establishes a
temporary safe haven in the United States for foreign nationals where their
country's conditions prevent them from returning safely. El Salvador is such a
country. Orantes, 2012 WL 3264956, at *1.
       5 See 8 U.S.C. § 1254a(c)(2)(B)(i).
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No. 71082-6-1/3




      In 2011, Orantes moved to vacate his 2006 conviction, asserting that the

trial court had violated his due process rights.        He claimed his plea was

involuntary and the judgment and sentence void because the trial court failed to

advise him of the immigration consequences.         Orantes based his argument

on Padilla, which the United States Supreme Court decided after his plea and

sentence. But he expressly denied making any claim that his trial counsel was

ineffective. The trial court dismissed the petition, and we affirmed. We rejected

Orantes's due process claim because both Padilla and the Washington Supreme

Court's decision in State v. Sandoval6 decided ineffective assistance of counsel

claims, not claims based on a denial of due process.7

      Orantes again moved for relief from his 2006 conviction in 2013. The trial

court transferred his motion to this court to consider as a personal restraint

petition (PRP).    Orantes claimed that his trial counsel's performance was

constitutionally deficient. This court dismissed the petition. The Supreme Court

granted discretionary review and remanded to this court for reconsideration in

light of its intervening decision, In re Personal Restraint of Yung-Cheng Tsai.8




      6 171 Wn.2d 163, 249 P.3d 1015 (2011).
      7 Orantes. 2012 WL 3264956, at *5.
      8183Wn.2d91, 351 P.3d 138(2015).
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No. 71082-6-1/4




                             STANDARD OF REVIEW


       A trial court may transfer a motion for relief from judgment under CrR 7.8

to this court for consideration as a PRP "'to serve the ends of justice.'"9 A PRP is

not a substitute for direct appeal, and availability of collateral relief is limited.10

To obtain relief, the petitioner must first overcome statutory and rule-based

procedural bars.11 We review de novo questions of law that a PRP raises.12

                                     ANALYSIS


       Orantes's motion to withdraw his guilty plea is a collateral attack on his

2006 conviction.13 He now makes an ineffective assistance of counsel claim,14

asserting that "his attorney failed to inform him that [pleading guilty] would cause

him to lose his immigration status and render him deportable . . . and instead

assured him that his immigration status would not be affected."



       9 State v. Robinson. 153 Wn.2d 689, 696, 107 P.3d 90 (2005) (quoting
former CrR 7.8(c)(2) (2003)).
       10 In re Pers. Restraint of Grasso, 151 Wn.2d 1, 10, 84 P.3d 859 (2004).
       11 Grasso, 151 Wn.2d at 10; see RCW 10.73.090; RAP 16.4(d).
       12 In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503, 384 P.3d 591
(2016), petition for review filed, No. 93993-4 (Wash. Jan. 3, 2017).
      13 RCW 10.73.090(2).
       14 To prove ineffective assistance of counsel, an appellant must show that
(1) counsel provided representation so deficient that it fell below an objective
standard of reasonableness and (2) the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). A
defendant shows prejudice when there is a reasonable probability that but for
counsel's errors, the result of the trial would have been different.          State v.
Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
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No. 71082-6-1/5




      The trial court did not decide the merits of Orantes's claim because it


decided that the general one-year statute of limitations for PRPs applied and

barred it. We disagree.

RCW 10.73.100(6) Exception to Statute of Limitations

       In general, a defendant cannot collaterally attack a judgment and

sentence more than one year after it becomes final.15 RCW 10.73.100 provides

several exceptions to this rule. One exception allows a defendant to collaterally

attack a judgment after the one-year deadline if the defendant establishes three

things: (1) a significant change in the law occurred, (2) that change is material to

the defendant's conviction, and (3) that change applies retroactively.16

       Orantes asserts that this exception applies to his request because the

United States Supreme Court's decision in Padilla was a "significant change in

the law" that is material to his claim and applies retroactively. We agree.

       In Yung-Cheng Tsai, the Washington Supreme Court decided that Padilla

made a significant change in our state's law about collateral attacks based on

ineffective assistance claims17 and that Padilla "applies retroactively to matters

on collateral review."18 Thus, Orantes's ineffective assistance of counsel claim




       15 RCW 10.73.090(1).
       16 RCW 10.73.100(6).
       17 Yung-Cheng Tsai, 183 Wn.2d at 107.
       18 Yung-Cheng Tsai, 183 Wn.2d at 103.
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No. 71082-6-1/6




satisfies the first and third requirements of the exception. This leaves for our

decision whether Padilla's change in law is "material to" Orantes's conviction.

      The State asserts that Padilla is not material to Orantes's conviction


because Washington courts accepted claims like Orantes's before Padilla.          It

posits that before Padilla Washington courts distinguished between claims that

an attorney failed to offer any advice on the immigration consequences of a guilty

plea and claims that an attorney offered "mis-advice" regarding immigration

consequences. The State asserts that the second type was already available to

Orantes before Padilla. We disagree.

       First, Padilla itself belies the State's argument. The State's argument that

"non-advice" claims were not available until Padilla, whereas "mis-advice" claims

were available all along, ignores the obvious:       Padilla involved a misadvice

claim.19 Padilla's trial counsel incorrectly informed him that he "'did not have to

worry about immigration status since he had been in the country so long.'"20 The

State mistakenly asserts that Padilla changed the law with respect to nonadvice

claims but not with respect to the type of claim at issue in that case. Also, the

Padilla Court did not make the distinction the State promotes.

      Second, a close reading of the pre-Padilla cases shows that Washington

courts likely would have rejected Orantes's claim before Padilla.

       19 Padilla, 559 U.S. at 359.
       20 Padilla, 559 U.S. at 359 (internal quotation marks omitted).
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No. 71082-6-1/7




      The State cites only one pre-Padilla decision finding ineffective assistance

of counsel, and that case did not involve immigration consequences.           The

defendant in State v. Stowe21 was concerned about the consequences of a guilty

plea on his military career. His attorney told him that entering an Alford22 plea

would not affect his career.      After his conviction, the Army immediately

discharged him.23 In considering Stowe's ineffective assistance claim, Division

Two distinguished counsel's failing to inform from providing affirmative

misinformation.24 It concluded that Stowe's counsel's wrong advice "fell below

the   objective   standard   of   reasonableness"    and   constituted   deficient

performance.25

       Dicta from Division Two's decision the next year in State v. Hollev26 also

support the distinction the State makes. A statement in the plea of guilty form

that Holley signed informed him that his plea could be grounds for deportation.

Holley's attorney mistakenly thought Holley was a U.S. citizen and told him that

he could skip that statement because it did not apply to him.27 Division Two held



       21 71 Wn. App. 182, 184, 858 P.2d 267 (1993).
       22 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L Ed. 2d 162
(1970).
       23 Stowe, 71 Wn. App. at 184-85.
       24 Stowe, 71 Wn. App. at 187.
       25 Stowe, 71 Wn. App. at 188-89.
       26 75 Wn. App. 191, 195, 876 P.2d 973 (1994).
       27 Hollev, 75 Wn. App. at 195.
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No. 71082-6-1/8




that Holley was entitled to a hearing to rebut the presumption that he was

properly advised.28

      Although the court decided the case on statutory grounds, it addressed

Holley's ineffective assistance of counsel claim in dicta.29 It would have rejected

that claim by distinguishing the "faulty advice" Holley received from "the type of

affirmative misinformation at issue in Stowe."30 But the court did not explain how

to distinguish faulty advice from affirmative misinformation; both phrases would

seem to apply when counsel informs a client that he can sign the plea without

reading the immigration advisory because the advisory does not affect him.

      Similar dicta in In re Personal Restraint of Yim31 also support the State's

argument. A petitioner, Samphao, was advised at the time of his guilty plea that

his plea might subject him to deportation.32 A verbal exchange at sentencing

showed that the prosecutor and trial judge misunderstood the law and thought

Samphao would not be deportable and that Samphao's attorney did not know if

he would be.33    Samphao asserted that the prosecutor, trial court, and his

attorney affirmatively misrepresented the consequences of his plea, making that



      28 Hollev, 75 Wn. App. at 200.
      29 Hollev, 75 Wn. App. at 198-99; see Yung-Cheng Tsai. 183 Wn.2d at
105-06 (characterizing Division Two's ineffective assistance analysis as dicta).
      30 Hollev, 75 Wn. App. at 198-99.
      31 139 Wn.2d 581, 588, 989 P.2d 512 (1999).
       32 Yim, 139 Wn.2d at 588-90.
       33 Yim, 139Wn.2dat589.
                                        -8-
No. 71082-6-1/9




plea involuntary.34 The Supreme Court disagreed, reasoning that deportation is

a mere collateral consequence of pleading guilty.35       Thus, it held, defense

counsel had no obligation to advise Samphao that his plea might result in

deportation. The court also stated that an affirmative misrepresentation "might"

be a basis for setting aside the plea, but it found that the record did not show

such a misrepresentation.36 The court concluded that the trial court's advice to

Samphao at the time of his plea was enough to make that plea voluntary.

       While dicta in Hollev and Yim thus support the State's position, the State

cites no decision, nor is this court aware of any, where a Washington court has

held that a defendant can obtain relief for ineffective assistance of counsel based

on incorrect advice about the immigration consequences of a guilty plea. The

line drawn in pre-Padilla Washington cases was not between misadvice and

nonadvice but between collateral and direct consequences. Padilla rejected that

distinction.37


       34 Yim, 139 Wn.2d at 587-88.
       35 Yim, 139 Wn.2d at 588; see also State v. Jamison. 105 Wn. App. 572,
591, 20 P.3d 1010 (2001) (noting that ineffective assistance claim would fail
because deportation is only collateral consequence but finding in any case that
"Jamison was advised categorically by counsel that he would be deported");
State v. Martinez-Lazo, 100 Wn. App. 869, 877-78, 999 P.2d 1275 (2000)
(holding defense counsel not ineffective for failing to warn of deportation because
deportation is collateral consequence); In re Pers. Restraint of Peters, 50 Wn.
App. 702, 705-06, 750 P.2d 643 (1988) (noting same distinction).
       36 Yim, 139 Wn.2d at 588-90.
       37 Sandoval. 171 Wn.2d at 170 n.1. The Supreme Court of Kentucky had
held in Padilla "that the Sixth Amendment's guarantee of effective assistance of
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No. 71082-6-1/10




       Rather than support the State's misadvice-nonadvice distinction, the facts

and holdings of pre-Padilla cases indicate that Washington courts would have

rejected Orantes's claim before Padilla. Orantes stated in a declaration that his

trial counsel advised him that pleading guilty would lead to the best outcome of

his case: "[Counsel] mistakenly advised me that pleading guilty would not affect

my TPS as long as I was sentenced to less than 365 days of confinement. She

never told me that pleading guilty would cause me to lose my immigration

status."   Counsel's declaration did not mention these affirmative statements but


confirmed that while counsel discussed some of the consequences of Orantes's

plea with him, she never advised him that the plea would make him ineligible for

TPS and probably cause him to lose his immigration status.

       These facts are similar to those that courts found insufficient to support

due process and ineffective assistance claims in Holley and Yim. As in Hollev,

the petitioner's attorney advised him to plead guilty while giving him inaccurate

advice. Just as Holley's attorney advised him that the deportation advisory did

not apply to him, Orantes's attorney told him a guilty plea would not affect his

immigration status. Like the petitioner in Yim, Orantes knew that he was at risk

of deportation but received a false impression, both from his attorney and from

counsel does not protect a criminal defendant from erroneous advice about
deportation because it is merely a 'collateral' consequence of his conviction."
Padilla, 559 U.S. at 359-60 (emphasis added). This is the decision the United
States Supreme Court reversed.
                                       -10-
No. 71082-6-1/11




the trial court and prosecutor, about the particular consequences of his plea.

And just as the attorneys and trial court in Yim thought that Samphao would not

be deportable "unless he gets 60 months or more," the attorneys and trial court

here thought Orantes would not lose TPS unless he got 365 days or more.38

       Orantes's case also resembles the petitioner's in Sandoval.            There,

Sandoval's attorney advised him to accept a plea offer because he would not be

immediately deported and could obtain immigration counsel to "ameliorate any

potential immigration consequences."39         Division Three, in an unpublished

opinion before Padilla, rejected Sandoval's due process claim, relying on Yim's

statement that deportation was "merely a collateral consequence."40 In reversing

Division Three's decision, the Supreme Court held that "Padilla has superseded

Yim's analysis of how counsel's advice about deportation consequences (or lack

thereof) affects the validity of a guilty plea."41 Notably, the Supreme Court did not

distinguish between bad advice and no advice.            Like Sandoval's attorney,

Orantes's counsel advised him to accept a plea offer, basing that advice on a

misunderstanding of the consequences of a guilty plea.         Sandoval's collateral


       38 This is shown here by the initial, misguided agreement between the trial
court, defense counsel, and prosecutor to a 364-day sentence and the
subsequent, also misguided agreement to reduce that sentence to 180 days.
See Yim, 139 Wn.2d at 589-90.
       39 Sandoval. 171 Wn.2d at 167.
     40 Sandoval. 171 Wn.2d at 170 n.1 (citing In re Pers. Restraint of
Sandoval, noted at 145 Wn. App. 1017, 2008 WL 2460282, at *2).
       41 Sandoval, 171 Wn.2d at 170 n.1.
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No. 71082-6-1/12




challenge based on these facts failed before Padilla, then succeeded in light of

Padilla's changes to the law. Sandoval further demonstrates that Padilla made a

change material to Orantes's conviction.

       Despite some unfortunate dicta, the Supreme Court's decision in Yung-

Cheng Tsai accords with this analysis.            The Supreme Court held that one

petitioner, Jagana, was entitled to a reference hearing because his attorney

failed to give him any guidance about the potential immigration consequences of

a guilty plea. It observed that "Washington courts would have rejected Jagana's

claim before Padilla."    Thus, the court held, Jagana's claim was not time-

barred.42 The other petitioner, Tsai, claimed his attorney "incorrectly advised him

about the immigration consequences" of his plea. Tsai had filed his first motion

to withdraw, claiming misadvice, in 2008. The trial court found that motion to be

untimely and rejected it accordingly, without considering the misadvice claim.

Tsai did not appeal. In his collateral attack, Tsai offered no reason to overturn

the trial court's procedure-based decision to dismiss his petition. The Supreme

Court therefore denied a reference hearing without needing to consider whether

Tsai's claim had merit before Padilla.43

       These were the holdings in Yung-Cheng Tsai. The court also suggested

twice that misadvice claims were actionable before Padilla—statements the State


       42 Yung-Cheng Tsai, 183 Wn.2d at 107.
       43 Yung-Cheng Tsai, 183 Wn.2d at 107-08.
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No. 71082-6-1/13




relies on heavily here—but did not rely on these observations in reaching

different results for the two petitioners.   In discussing Tsai's petition, the court

observed, "Washington courts have long recognized that where a defendant

relies on his or her attorney's incorrect advice about the immigration

consequences of pleading guilty, the defendant's plea may be rendered

involuntary and withdrawn."44 The court cited only Yim for this observation. As

discussed above, the cited portion of Yim was dicta.45 Moreover, the Tsai court's

statement itself was dicta since, as discussed above, the court rejected Tsai's

collateral challenge as untimely based on his failure to appeal the dismissal of his

original motion to withdraw.

       In sum, case law shows that Washington courts likely would have rejected

Orantes's challenge before Padilla, just as they rejected claims based on

counsel's failure to advise.     Padilla's change in the law is thus material to

Orantes's conviction.46

       Because Orantes's claim satisfies the RCW 10.73.100(6) "significant

change" exception, the one-year statute of limitations does not bar his ineffective


       44 Yung-Cheng Tsai, 183 Wn.2d at 107.
       45 Yung-Cheng Tsai, 183 Wn.2d at 107 (citing Yim, 139 Wn.2d at 588
("While an affirmative misrepresentation to a defendant regarding the possibility
of deportation might constitute a 'manifest injustice' and, thus, provide a basis for
setting aside a guilty plea, the record demonstrates that there was no such
misrepresentation here." (emphasis added))).
       46 See Sandoval, 171 Wn.2d at 170 n.1.
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No. 71082-6-1/14




assistance of counsel claim.      We need not address Orantes's request for a

hearing on whether his claim is one of misadvice or nonadvice. Nor do we need

to consider Orantes's argument that petitioners before Padilla could base their

ineffective assistance claims only on affirmative misrepresentations explicitly

regarding deportation.

Abuse of the Writ


       The State also asserts that this court should dismiss this, Orantes's

second petition, as an "abuse of the writ" barred by RCW 10.73.140.                We

disagree.

       A second or subsequent PRP is an "abuse of the writ" if it raises a new

issue that was available to the petitioner at the time of filing an earlier petition.47

Ifthe petitioner's counsel was aware of facts supporting the "new" claim when the

petitioner filed the earlier petition and "'no pertinent intervening developments'"

occur, then the later petition is an abuse of the writ and barred.48 No such abuse

occurs, however, when the petitioner bases a claim "on newly discovered

evidence or intervening changes in case law," as such a claim "would not have

been 'available' when the earlier petition was filed."49



       47 Turav. 153 Wn.2d at 48.
       48 Turay, 153 Wn.2d at 49 (quoting In re Pers. Restraint of Jeffries, 114
Wn.2d 485, 492, 789 P.2d 731 (1990)).
       49 Turav. 153 Wn.2d at 48-49.
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No. 71082-6-1/15




      The State points out that the United States Supreme Court decided Padilla

in 2010.   The State contends that any "intervening changes in case law" thus

occurred before Orantes filed his first petition in 2011. We disagree.

      This court's opinion in In re Personal Restraint of Jagana50 was an

intervening change in case law.      That decision, issued after Orantes's first

petition, recognized for the first time that Padilla applied retroactively in

Washington state courts to cases on collateral review.51 This court noted that

Padilla had left open whether its rule should apply retroactively and that the

question was a subject of debate among federal and state appellate courts. In a

thorough analysis, this court agreed with the Third Circuit and the Supreme Court

of Massachusetts in finding that Padilla did apply retroactively.52       Because

Jagana was thus an intervening change in case law relevant to Orantes, his

second petition's new claim based on Padilla is not an "abuse of the writ."




       50 No. 66682-7-I, slip op at 25 (Wash. Ct. App. Aug. 13, 2012),
http://www.courts.wa.gov/opinions/pdf/666827.pdf, withdrawn Aug. 21, 2013.
       51 See Jagana, slip op. at 25.
       52 Jagana, slip op. at 12-25. Our Supreme Court remanded Jagana for
reconsideration in light of the United States Supreme Court's decision in Chaidez
v. United States       U.S.      , 133 S. Ct. 1103, 1110, 185 L. Ed. 2d 149(2013),
and this court withdrew its opinion. Later, in Yung-Cheng Tsai, our Supreme
Court agreed with this court's Jagana holding as a matter of Washington law.
Yung-Cheng Tsai, 183 Wn.2d at 103.
                                       -15-
No. 71082-6-1/16




        The State also contends that Orantes's petition is an abuse of the writ

because Orantes chose not to pursue an ineffective assistance of counsel claim

in his first petition.

        "[A]n applicant's deliberate withholding of grounds when he files his first

application for relief and his deliberate abandonment of a ground at an earlier

hearing are examples of conduct disentitling an applicant to relief."53 This rule

prevents "'needless piecemeal litigation'" and petitions "'whose only purpose is to

vex, harass, or delay.'"54

        As discussed above, "intervening changes in case law" occurred after

Orantes's first petition. Before these changes, it was reasonable for Orantes to

think that an ineffective assistance claim based on Padilla was not available to

him. His actions in bringing another petition after this court found Padilla to apply

retroactively were neither needless nor vexatious. Thus, his previous failure to

make an ineffective assistance claim does not bar his raising it in a second

petition.55




       53 Jeffries, 114 Wn.2d at 500 (emphasis omitted).
       54 Jeffries, 114 Wn.2d at 501 (quoting Sanders v. United States, 373 U.S.
1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963)).
        55 "[Dismissal of a writ as abusive is based upon equitable principles."
Jeffries, 114 Wn.2d at 500; see Sanders, 373 U.S. at 17.
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No. 71082-6-1/17




                                   CONCLUSION


         Because the significant change in the law that Padilla made is material to

Orantes's ineffective assistance claim, the statute of limitations does not bar that

claim.    And because this court's decision finding Padilla retroactive was an

intervening change in the law after Orantes's first petition, his second petition is

not an "abuse of the writ." We remand for a reference hearing on the merits of

Orantes's ineffective assistance of counsel claim.




WE CONCUR:




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