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                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 09:34:40 2015.02.25

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-005

Filing Date: January 12, 2015

Docket No. 34,311

STATE OF NEW MEXICO,

        Plaintiff-Petitioner,

v.

CESAR FAVELA,

        Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Douglas R. Driggers, District Judge

Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jorge A. Alvarado, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                           OPINION

VIGIL, Chief Justice.

{1}     This case concerns the weight to be given to two types of evidence in evaluating
prejudice in immigration-related ineffective assistance of counsel claims: judicial warnings
of immigration consequences and the strength of the State’s evidence against the defendant.
Defendant Cesar Favela filed a motion requesting permission to withdraw his guilty plea,
alleging ineffective assistance of counsel after his attorney failed to advise him that his guilty
plea would result in deportation. The district court denied the motion. The Court of Appeals
reversed, holding that where a defendant’s attorney fails to advise that defendant of the

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specific immigration consequences of entering a guilty plea, a warning of such consequences
by a judge during a plea colloquy does not, by itself, cure the prejudice suffered by the
defendant as a result of the attorney’s deficient performance and should only be afforded
minimal weight in the analysis of prejudice. The State appealed.

{2}     We affirm the Court of Appeals’ holding that a judge’s warning of such
consequences during a plea colloquy cannot alone cure the prejudice caused by the
attorney’s deficient performance, and, accordingly, we affirm the Court of Appeals’ decision
to reverse and remand the district court’s order. State v. Favela, 2013-NMCA-102, ¶ 1, 311
P.3d 1213, cert. granted, 2013-NMCERT-010. However, we decline to go so far as to
declare that any particular type of evidence should be afforded minimal weight in deciding
all claims of immigration-related ineffective assistance of counsel. Rather, we maintain that
the determination of the weight to be afforded to evidence of prejudice is appropriately made
on a case-by-case basis.

I.     BACKGROUND

{3}     Defendant, who is a Mexican national and, at the time, was a lawful permanent
resident of the United States, pleaded guilty to four counts of aggravated battery with a
deadly weapon contrary to NMSA 1978, Section 30-3-5(C) (1969) and one count of driving
while under the influence of intoxicating liquor, his second conviction contrary to NMSA
1978, Section 66-8-102(F) (2003). Favela, 2013-NMCA-102. At the plea and disposition
hearing, during the plea colloquy, the district judge asked Defendant whether he had read
the documents related to his plea agreement and discussed them with his attorney, and
Defendant testified that he had. The district judge then asked Defendant if he understood the
charges to which he was pleading guilty and the rights he would be giving up as a result of
the plea, and Defendant testified that he understood. Before the judge accepted Defendant’s
plea, the following exchange occurred:

       Judge: Counsel, I just noticed the place of birth on this form. Is there an
       immigration consequence in this case?

       Defense Counsel: There will be. He’s here legal and everything, he has his
       paper documentation and everything, but more than likely will have a great
       consequence on . . . his papers being taken away.

       Judge: Mr. Favela, before I accept the plea and approve it at this point, I want
       to be sure you understand, as your attorney said, that a conviction will have
       an effect on your immigration status and that effect would be deportation,
       which is now called removal, exclusion from the United States and denial of
       naturalization under the laws of the United States. Do you understand that,
       sir?

       Defendant: Yes, your Honor.

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        Judge: All right, and is it still your desire to enter your plea of guilty, sir?

        Defendant: Yes, your Honor.

        Judge: All right, the court then approves that.

The district court accepted Defendant’s guilty plea.

{4}     Defendant was sentenced to twelve years and 364 days imprisonment, to be followed
by two years of parole and a $1,000 fine. All of his prison sentence except three years was
suspended; those three years were to be followed by five years of supervised probation and
parole. With good time credit, Defendant served a total of twenty-one months at the New
Mexico Department of Corrections. Upon his release, Defendant was immediately taken into
the custody of the U.S. Immigration and Customs Enforcement (ICE) and detained in the
Otero County Processing Center to await removal.

{5}     Shortly after being taken into ICE custody, Defendant, through new counsel, filed
a motion for relief from judgment or order and a request for an evidentiary hearing pursuant
to Rule 1-060 NMRA. Defendant asked the district court for an order allowing the
withdrawal of Defendant’s guilty plea on the grounds that his trial attorney did not inform
him of the immigration consequences of pleading guilty. Therefore, Defendant maintained
that the guilty plea did not constitute a willful, knowing, and intelligent waiver of his rights.
On July 6, 2011, the district court issued an order summarily dismissing Defendant’s motion
and request for hearing. Stating that it was “[t]aking as true the factual allegations in the
motion . . . for the purposes of this order,” the district court’s findings of fact included:

        5.      The defendant’s trial counsel did not explain to the defendant prior
                to the plea hearing that he would certainly be deported as a result of
                his plea and conviction in this case.

        6.      Prior to accepting the defendant’s guilty pleas, defense counsel stated
                to the Court and the Court itself admonished the defendant that his
                plea and conviction in this case would surely result in his being
                deported. The defendant personally told the Court that he understood
                that he would be deported.

The district court’s conclusions of law included:

        5.      The defendant must demonstrate, not only that his attorney’s
                assistance was deficient in failing to advise him of the certainty of
                deportation if convicted, but that he was prejudiced by his attorney’s
                ineffective action or omission in that he would have gone to trial had
                he been adequately informed.


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       6.      In this case, the defendant was clearly made aware prior to entering
               his guilty pleas that deportation would be an inevitable result of the
               conviction. His decision to plead guilty in the face of this certainty
               was knowing, intelligent and voluntary. His guilty plea cannot now
               be set aside.

(Citations omitted.) Accordingly, the district court dismissed Defendant’s motion.

{6}      Defendant filed a motion to reconsider the dismissal and a supporting affidavit. The
district court held a hearing on the motion to reconsider on November 21, 2011. Defendant
testified that his trial counsel did not advise him that he would be deported as a result of
pleading guilty. Defendant testified that he entered the guilty plea because his attorney told
him to do so. Specifically, Defendant testified that he entered the plea because his attorney
had instructed him to “just say yes, yes, yes and plead guilty ’cause we already had signed
[the plea agreement] and so nothing was going to change.” Additionally, Defendant testified
that he did not understand what the district judge presiding over his plea hearing was saying
to him and that he would not have pleaded guilty had he known it would result in deportation
because “[his] whole life is here in the United States.” Nonetheless, the district court denied
Defendant’s motion to reconsider “for the reasons set forth in the July 6, 2011 Order”
without further explanation.

{7}     Defendant appealed the denial of his motion to the Court of Appeals. Favela, 2013-
NMCA-102, ¶ 1. In resolving the issue, the Court of Appeals issued two holdings concerning
“what weight, if any, should be given to the trial court advising Defendant during the plea
colloquy that he would be deported.” Id. ¶ 23.The Court of Appeals held that “a court’s
warning or advisement to a defendant regarding possible immigration consequences of
accepting a plea is never, by itself, sufficient to cure the prejudice that results from
ineffective assistance of counsel in that regard.” Id. ¶ 26. Second, the Court held that
“judicial statements made during the plea colloquy about the immigration consequences of
a [defendant’s] plea do not cure counsel’s deficient representation and should only be given
minimal weight in determining whether a defendant has demonstrated prejudice under
Strickland v. Washington, 466 U.S. 668, 695-98 (1984).” Id. ¶ 1. Additionally, the Court of
Appeals noted:

       Although our courts have recognized a direct relationship between the
       strength of the case against a defendant and the likelihood that he or she will
       plead guilty . . . , when viewed in light of our acknowledgment that
       immigration consequences may often be the overriding concern of a criminal
       defendant, the strength of the evidence against a defendant is less indicative
       of whether the defendant may have taken a chance at trial.

Id. ¶ 30 n.4 (internal quotation marks and citation omitted). The Court of Appeals reversed
the district court’s dismissal of Defendant’s motion for reconsideration and remanded to the
district court for further proceedings. Id. ¶¶ 30-31.

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{8}     The State appealed to this Court, arguing that the Court of Appeals erred in “holding
that judicial statements made during a plea colloquy about the immigration consequences
of a guilty plea, as well as the strength of the State’s evidence against a defendant, should
only be afforded minimal weight in evaluating an immigration-related ineffective assistance
of counsel claim.”

II.    DISCUSSION

A.      Standard of review

{9}     “A motion to withdraw a guilty plea is addressed to the sound discretion of the trial
court, and we review the trial court’s denial of such a motion only for abuse of discretion.”
State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal quotation
marks and citation omitted). “A denial of a motion to withdraw a guilty plea constitutes
manifest error when the undisputed facts establish that the plea was not knowingly and
voluntarily given.” State v. Garcia, 1996-NMSC-013, ¶ 7, 121 N.M. 544, 915 P.2d 300.
“Where, as here, 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 in counseling
the plea.” State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323. “We afford
de novo review of mixed questions of law and fact concerning the ineffective assistance of
counsel.” Id. ¶ 13.

B.      Immigration-related ineffective assistance of counsel claims

{10} New Mexico has adopted the United States Supreme Court’s holding in Strickland,
466 U.S. at 687, for evaluating a claim of ineffective assistance of counsel under the Sixth
Amendment of the United States Constitution. See, e.g., Paredez, 2004-NMSC-036, ¶ 13.
Under the two-prong test in Strickland, in order to prevail on a claim of ineffective
assistance, “a defendant must show: (1) ‘counsel’s performance was deficient,’ and (2) ‘the
deficient performance prejudiced the defense.’” Paredez, 2004-NMSC-036, ¶ 13 (quoting
Strickland, 466 U.S. at 687). A defense attorney’s failure to advise a client of the “specific
immigration consequences of pleading guilty, including whether deportation would be
virtually certain” renders that attorney’s performance deficient, which satisfies the first
prong of the Strickland test. Paredez, 2004-NMSC-036, ¶ 19. Here, the district court found
that “trial counsel did not explain to the defendant prior to the plea hearing that he would
certainly be deported as a result of his plea and conviction in the case.” Thus, the first prong
of Defendant’s ineffective assistance of counsel claim was satisfied. See id. Having
established the first prong of the Strickland test, we turn our focus to the second prong of the
analysis concerning prejudice.

{11} In cases involving plea agreements, prejudice is proven where the defendant
demonstrates “that there is a reasonable probability that, but for counsel’s errors, he [or she]
would not have pleaded guilty and would have insisted on going to trial.” Id. ¶ 20 (alteration

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in original) (internal quotation marks and citation omitted). The defendant “is not required
to prove that a trial would have resulted in acquittal,” but rather must show that with
sufficient legal advice from his or her counsel, “there is a reasonable probability that the
defendant would have gone to trial instead of pleading guilty or no contest.” Patterson v.
LeMaster, 2001-NMSC-013, ¶ 18, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks
and citation omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (internal quotation marks and citation omitted).

C.      A judicial warning of immigration consequences cannot, by itself, cure
        prejudice

{12} After establishing that the first prong was satisfied, the district court correctly
recognized that Defendant was also required to prove that he was prejudiced by counsel’s
deficient performance. See Paredez, 2004-NMSC-036, ¶ 13. In the findings and conclusions
contained in its order, the district court did not cite any factual basis for its decision to deny
Defendant’s motion other than the exchange that occurred between the district judge,
Defendant, and defense counsel during the plea colloquy. Because the first prong of the test
was established by a finding that defense counsel failed to advise Defendant of the
immigration consequences of his plea, the district court’s denial of Defendant’s motion was
apparently based on lack of prejudice. In determining that Defendant did not suffer
prejudice, the district court relied solely upon the admonition made to Defendant during the
plea colloquy by the district judge who accepted the plea.

{13} Although this Court has repeatedly found that a judicial warning is insufficient to
cure an attorney’s deficient performance under the first prong of the Strickland test, we have
not yet considered such warnings in evaluating prejudice. E.g., Ramirez v. State, 2014-
NMSC-023, ¶ 17, 333 P.3d 240 (“[W]e have held in other cases where counsel has failed to
properly advise a client during the plea entry phase that not even a record of the court’s
adherence to the plea colloquy cures the ineffective assistance of counsel.”); Paredez, 2004-
NMSC-036, ¶ 12 (“[A] sufficient advisement from the trial court regarding the immigration
consequences of a defendant’s plea does not entail that [the defendant] has received effective
assistance of counsel in evaluating or responding to such advisements.” (second alteration
in original) (internal quotation marks and citation omitted)). The Court of Appeals’ opinion
in this case extended this line of reasoning to its analysis of prejudice, noting that “[e]ven
where warnings [by judges] are more specific, judges, given their position, cannot gauge
defendants’ priorities, counsel defendants on how to proceed, or use the information
strategically in negotiating pleas.” Favela, 2013-NMCA-102, ¶ 27 (internal quotation marks
and citation omitted). Essentially, the Court of Appeals recognized, “[a] defendant who has
been ‘advised’ of the immigration consequences of his [or her] plea by the trial court during
the plea colloquy has not been provided the same assistance of counsel as an attorney who
has represented a client with knowledge that the defendant faced possible deportation.” Id.
Further, the Court of Appeals “note[d] concerns with the efficacy of immigration warnings
given by the trial court,” adding that a “nervous defendant taking a plea in front of a criminal
judge will rarely be able to meaningfully process the many formalized warnings included in

                                                6
the plea colloquy.” Id. ¶ 28 (internal quotation marks and citation omitted).

{14} It is imperative that every defendant entering into a plea agreement which could
result in immigration consequences possesses a clear understanding of those immigration
consequences in order to protect both the rights of the pleading defendant and to avoid the
uncertainty resulting from post-conviction challenges. By first determining that a defendant
understands the consequences of pleading guilty before accepting a plea agreement, district
court judges serve a crucial gate-keeping function, allowing admittance of only those plea
agreements which are entered into knowingly. Therefore, a district court judge’s
determination of a defendant’s understanding of the immigration consequences of entering
a plea is crucial to the fairness and finality of the plea process, and we take this opportunity
to give additional guidance to district court judges when making such determinations. It is
within the district court’s discretion to determine, in light of the circumstances of each case,
which, if any, of these steps will aid in assessing whether or not the defendant possesses the
requisite understanding to knowingly enter into a plea agreement.

{15} While Forms 9-406 to -408C NMRA provide guidance in conducting a plea
proceeding, a judge is not limited to merely reading the language used on the forms and
asking the defendant whether the defendant understands. An effective inquiry into a
defendant’s actual understanding of immigration consequences may require more than
simple “yes” answers on the part of the defendant, who may or may not be able to fully
process the formalistic questions and instructions from the judge under the pressure of being
questioned during a plea colloquy. We encourage judges to carefully inquire of the defendant
and the defendant’s attorney, on the record, whether the two discussed the potential
immigration consequences and what defendant’s actual understanding of those consequences
is. By the same token, we encourage defense attorneys to thoroughly discuss any potential
immigration consequences with their clients so that their clients are able to respond
knowingly to the judge’s questioning. If a judge has any doubts concerning the sufficiency
of the defendant’s understanding of the immigration consequences of a guilty plea, the judge
may consider taking a recess and giving both client and counsel an opportunity to conference
privately to discuss the specific consequences. Following such an opportunity for discussion,
if the defendant and defense counsel indicate that the defendant still wishes to enter into the
plea agreement, the judge can again ask the defendant to confirm on the record the
defendant’s understanding of potential consequences. Ultimately, a district court judge
should not accept a plea agreement unless that judge determines, on the record, that the
defendant has an adequate understanding of the potential adverse immigration consequences
resulting from that plea agreement and that in light of those consequences, the defendant still
wishes to enter into that plea agreement.

{16} We agree with the Court of Appeals’ recognition that “judicial statements made
during the plea colloquy about the immigration consequences of a plea do not cure counsel’s
deficient representation” when evaluating whether or not a defendant has proven the first
prong of the Strickland test. Favela, 2013-NMCA-102, ¶ 1. We also agree that because such
an advisement by a judge cannot render sufficient an attorney’s otherwise deficient

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performance in failing to advise his client of the immigration consequences of his plea, the
same advisement cannot, by itself, cure the prejudice created by such a failure to advise. See
id. ¶ 26. Here, the district court’s order denying Defendant’s motion relied solely upon the
district judge’s advice to Defendant to find that Defendant was not prejudiced by his
attorney’s failure to advise him of the immigration consequences of his guilty plea. The
order did not indicate whether or not there was additional factual support for its decision to
deny the motion. For these reasons, we affirm the Court of Appeals’ decision to reverse and
remand the matter back to the district court.

D.     The weight afforded to specific types of evidence of prejudice shall be
       determined on a case-by-case basis

{17} The Court of Appeals explicitly held that “judicial statements made during the plea
colloquy about the immigration consequences of a plea . . . should only be given minimal
weight in determining whether a defendant has demonstrated prejudice under Strickland.”
Favela, 2013-NMCA-102, ¶ 1. Additionally, in considering the weight to be afforded to the
strength of the State’s evidence against a defendant, the Court of Appeals noted that “when
viewed in light of our acknowledgment that immigration consequences may often be the
overriding concern of a criminal defendant, the strength of the evidence against a defendant
is less indicative of whether the defendant may have taken a chance at trial.” Id. ¶ 30 n.4.

{18} The State argues that the Court of Appeals erred in holding that these two types of
evidence should be afforded minimal weight in the prejudice analysis of an immigration-
related ineffective assistance of counsel claim. Defendant argues that the Court of Appeals
decided the matter correctly under the law. We conclude that the appropriate weight to be
afforded to any evidence of prejudice cannot be determined in the abstract, but must be
evaluated in light of the circumstances of the individual case in which the evidence is
presented.

{19} There is no formulaic test for determining whether a defendant has demonstrated
prejudice. Such a determination is made on a case-by-case basis, in light of the facts of that
particular case. See Roe v. Flores-Ortega, 528 U.S. 470, 485 (2000) (“As with all
applications of the Strickland test, the question whether a given defendant has made the
requisite showing will turn on the facts of a particular case.”); see also Patterson, 2001-
NMSC-013, ¶ 29 (“We have identified two types of additional evidence that are pertinent
to the analysis in this case.”) (emphasis added); Barnett, 1998-NMCA-105, ¶ 32 (“[T]here
are no mechanical rules for determining prejudice.”). This Court has noted that in assessing
whether a defendant has been prejudiced by an attorney’s deficient performance, “courts are
reluctant to rely solely on the self-serving statements of defendants.” Patterson, 2001-
NMSC-013, ¶ 29. Thus, a defendant will often need to provide additional, objective evidence
of prejudice. Id. For example, our courts typically consider the strength of the State’s
evidence against the defendant and a defendant’s pre-conviction statements and actions, such
as assertions of innocence or statements of intent to go to trial. Id. ¶¶ 30-31.


                                              8
{20} An inquiry into the objective evidence of prejudice is not limited to the strength of
the State’s evidence or the defendant’s pre-conviction statements and actions because such
objective evidence will be sparse in many cases. State v. Carlos, 2006-NMCA-141, ¶ 21, 140
N.M. 686, 147 P.3d 897. As a result, our analysis may require turning to “what the defendant
would have been motivated to do if given accurate information.” Id. In Carlos, the Court of
Appeals reasoned that “Defendant’s testimony that he has lived in the United States virtually
his whole life, having been brought to [t]his country right after he was born, may have been
an important factor in his decision whether to enter a plea.” Id. Therefore, the Court of
Appeals held that it was appropriate to consider such testimony when evaluating prejudice.
Id. ¶¶ 22-23.

{21} Because every defendant and every case present a variety of interests and
circumstances, it is inappropriate to declare that the strength of the State’s evidence against
a defendant or judicial statements during a plea colloquy should necessarily be afforded
minimal weight in assessing prejudice. In making such an assessment, it is appropriate for
courts to consider the degree to which the record contains sworn testimony by the defendant
and defense counsel that strongly indicates that the defendant knowingly and voluntarily
entered into a plea agreement despite potential adverse immigration consequences.
Therefore, we decline to endorse the Court of Appeals’ holdings assigning minimal weight
to such evidence, and we clarify that the weight to be given to a particular type of evidence
of prejudice will depend on the particular facts of the case in which the evidence is
presented.

III.   CONCLUSION

{22} The district court’s order does not indicate that it considered factors other than
judicial statements during the plea colloquy to find that Defendant was not prejudiced by his
attorney’s failure to advise him that his guilty plea would lead to his deportation. Because
such judicial statements alone cannot cure prejudice, we affirm the Court of Appeals’
decision to reverse the district court’s denial of Defendant’s motion. Additionally, we clarify
that the weight to be afforded to particular types of evidence of prejudice shall be determined
on a case-by-case basis in light of the particular facts and circumstances of each individual
case. We remand the matter to the district court for further proceedings consistent with this
opinion.

{23}   IT IS SO ORDERED.


                                               ____________________________________
                                               BARBARA J. VIGIL, Chief Justice

WE CONCUR:

____________________________________

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PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice




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