                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40777

GERMAN POPOCA-GARCIA,                             )     2014 Opinion No. 47S
                                                  )
        Petitioner-Appellant,                     )     Filed: August 22, 2014
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )     SUBSTITUTE OPINION
                                                  )     THE COURT’S PRIOR
        Respondent.                               )     OPINION DATED MAY 30,
                                                  )     2014, IS HEREBY
                                                  )     WITHDRAWN
                                                  )

        Appeal from the District Court of the Seventh Judicial District, State of Idaho,
        Bingham County. Hon. David C. Nye, District Judge.

        Order denying petition for post-conviction relief, affirmed.

        Maria Elena Andrade, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
        Attorney General, Boise, for respondent.
                  ________________________________________________
GRATTON, Judge
        German Popoca-Garcia appeals from the order denying his petition for post-conviction
relief. We affirm.
                                                 I.
                      FACTUAL AND PROCEDURAL BACKGROUND
        Popoca-Garcia is a citizen of Mexico and prior to his deportation, he was a permanent
resident of the United States. Pursuant to a negotiated plea agreement, Popoca-Garcia pled
guilty to lewd conduct with a child under the age of sixteen, a violation of Idaho Code § 18-
1508.    At the change of plea hearing, the court ensured that Popoca-Garcia’s plea was
knowingly, intelligently, and voluntarily made. After the court accepted the plea, Popoca-
Garcia’s trial counsel informed the court that his client would likely face immigration
consequences based on the guilty plea and that his permanent resident status could be in
jeopardy. The court then asked if Popoca-Garcia understood that he could be deported. Popoca-

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Garcia answered, “Yes.” The court ordered a psychosexual evaluation and later sentenced
Popoca-Garcia to a unified term of ten years with two years determinate and retained
jurisdiction.   The court later relinquished jurisdiction and ordered Popoca-Garcia’s original
sentence executed. Popoca-Garcia did not appeal his conviction and sentence.
        Subsequently, Popoca-Garcia filed a petition for post-conviction relief asserting that his
trial counsel failed to adequately inform him of the immigration consequences resulting from his
guilty plea. A notice of intent to dismiss was issued by the district court and after both parties
responded, the court held an evidentiary hearing. At the hearing, trial counsel testified that he
unequivocally told Popoca-Garcia that under federal law, the offense required deportation. He
also testified that he told Popoca-Garcia that an immigration agent had informed the prosecutor
that the agent did not think the crime required deportation. Trial counsel also testified that he
told Popoca-Garcia the immigration agent was mistaken and that he would be deported. The
only other witness to testify was Popoca-Garcia’s stepfather. He testified that trial counsel did
not answer all his questions about his stepson’s immigration status and that the attorney said he
would not know until the immigration agency decided. Before the district court issued its order,
Popoca-Garcia was deported. The court then denied the petition for post-conviction relief.
Popoca-Garcia timely appeals.
                                               II.
                                          ANALYSIS
        Popoca-Garcia argues that his trial counsel provided ineffective assistance of counsel by
failing to adequately inform him of the immigration consequences of his guilty plea. In order to
prevail in a post-conviction proceeding, the petitioner must prove the allegations by a
preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801
P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010).
When reviewing a decision denying post-conviction relief after an evidentiary hearing, an
appellate court will not disturb the lower court’s factual findings unless they are clearly
erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d
376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The
credibility of the witnesses, the weight to be given to their testimony, and the inferences to be
drawn from the evidence are all matters solely within the province of the district court. Dunlap,
141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.


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1988). We exercise free review of the district court’s application of the relevant law to the facts.
Baxter, 149 Idaho at 862, 243 P.3d at 678.
        A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden
of showing that the attorney’s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon
a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not have pled guilty and would have
insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
        In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court
determined the standard of representation required when a guilty plea could have potential
immigration consequences. The Court first held that under the Sixth Amendment right to
counsel, as articulated in Strickland, counsel may have a duty to provide advice relating to
deportation. Id. at 366. The Court then held that “when the deportation consequence is truly
clear, as it was in [Padilla’s] case, the duty to give correct advice is equally clear.” Id. at 369.
On the other hand, when the law is less clear or uncertain “a criminal defense attorney need do
no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse
immigration consequences.” Id. Padilla had pled guilty to distributing drugs. Federal law
required automatic deportation for any conviction relating to controlled substances other than
simple possession of marijuana offenses. Thus, because on the face of the immigration law itself
the federal deportation law was “succinct, clear, and explicit,” Padilla’s counsel had a duty to
give correct advice about the immigration consequences. Id. at 368-69.
        The district court summarized why it felt the evidentiary hearing was necessary in this
case:
                The Court has reviewed the transcript of the change of plea hearing.
        There is no question that Popoca-Garcia knew, at the time he changed his plea
        that it was very likely that he would be deported if he pled guilty. At the change

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       of plea hearing, the Court put Popoca-Garcia under oath and asked him a series of
       questions. Defense counsel then stated “My client will most likely have some
       immigration consequences to this. And I’ve informed him of this, that this could
       put his permanent resident status in jeopardy, a plea to this charge, and he’s
       understood that.” The Court then asked Popoca-Garcia “Sir, do you understand
       that? That you could be deported because of this crime?” Popoca-Garcia
       answered “yes.” This colloquy, standing alone, does not show that Popoca-Garcia
       understood that deportation was virtually certain but merely that deportation was
       possible. That is why the Court decided to have an evidentiary hearing on the
       merits of the Petition for Post-Conviction Relief. 1

       Popoca-Garcia argued that because he pled guilty to lewd conduct with a minor under
sixteen, I.C. § 18-1508, the law was sufficiently clear that he would be deported for having pled
guilty to a crime constituting sexual abuse of a minor. The Immigration and Nationality Act
(INA) requires deportation if the individual pleads guilty to an “aggravated felony.”           See
8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b. Aggravated felony includes “sexual abuse of a minor” as
a deportable offense. 8 U.S.C. § 1101(a)(43)(A). The district court concluded that because
federal law required deportation for crimes of sexual abuse of minors, trial counsel had a duty to
provide correct advice since Popoca-Garcia pled guilty to lewd conduct with a minor under the
age of sixteen. The State did not challenge the district court’s conclusion below or on appeal.

1
        The district court concluded that Padilla v. Kentucky, 559 U.S. 356 (2010) required
unequivocal language, such that Popoca-Garcia’s understanding that he was “most likely” going
to be deported did not fulfill trial counsel’s obligation to provide correct advice. The State did
not challenge this conclusion and Popoca-Garcia assumes it is correct. Because we conclude that
trial counsel met the elevated standard, which would require language that deportation was
“virtually certain,” we do not decide whether less certain, but still correct, language would
satisfy Padilla. Compare Hernandez v. State, 124 So. 3d 757, 763 (Fla. 2012) (holding that
when immigration law is truly clear Padilla requires “more than equivocal advice concerning
those consequences”), Salazar v. State, 361 S.W.3d 99, 103 (Tex. Ct. App. 2011) (holding that
correct advice required informing client that “the plea of guilty would result in certain
deportation” and “terms ‘likelihood’ and ‘possibility’” were insufficient to convey the certainty
of deportation), and State v. Martinez, 253 P.3d 445, 448 (Wash. Ct. App. 2011) (holding that
merely discussing the “possibility of deportation,” taken with counsel’s uncertainty of
immigration law, failed to adequately advise client that eligibility for deportation was certain),
with Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013) (holding lower court did not
clearly err in finding that counsel’s advice that deportation was “very likely” was sufficient),
Com. v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct. 2013) (holding that correct advice did not
require telling client that he “definitely would be deported”), and Neufville v. State, 13 A.3d 607,
614 (R.I. 2011) (“Counsel is not required to inform their clients that they will be deported, but
rather that a defendant’s ‘plea would make [the defendant] eligible for deportation.’” (quoting
Padilla, 559 U.S. at 368)).

                                                 4
Therefore, we will assume for purposes of this appeal that trial counsel had a duty to provide
correct advice, as opposed to simply advising of the risk of immigration consequences. 2
       Operating under this assumption, the district court’s findings establish that trial counsel
met the heightened standard that would require correct advice. In concluding that Popoca-Garcia
satisfied his duty under Padilla, the district court found:
               [Trial counsel] further testified that he told Popoca-Garcia that deportation
       would be a consequence of a guilty plea. This fulfilled defense counsel’s
       obligation under Padilla. However, [counsel] also told Popoca-Garcia that the
       prosecutor had informed him that immigration services had contacted the
       prosecutor and said that they believed they could not deport Popoca-Garcia for the
       charge he pled guilty to. Finally, [he] told Popoca-Garcia that he believed the
       immigration service was wrong and that they could and most likely would deport
       him if he pled guilty. [Trial counsel] had no contact directly with immigration
       service but only with the prosecutor.

Thus, the district court found that trial counsel unequivocally informed Popoca-Garcia that he
would be deported under federal law.
       Popoca-Garcia argues that trial counsel’s advice was not sufficient to clearly express that
he would be deported because trial counsel also told him that immigration officials thought they
could not deport him. He emphasizes language from the evidentiary hearing that trial counsel
explained that immigration officials “could” deport him and that they “most likely would.”
Popoca-Garcia contends that these statements watered down any advice suggesting certainty of
deportation satisfying Padilla.      However, in reaching its decision the district court also
explained:
               At sentencing, [trial counsel] indicated that it was premature to say that
       Popoca-Garcia would be deported and the prosecutor stated that it was a certainty
       that Popoca-Garcia would be deported. However, what happened at sentencing is
       not pertinent to what happened at the change of plea hearing. By the time of
       sentencing, Popoca-Garcia had already knowingly and voluntarily pled guilty with
       an understanding that he would be deported. Popoca-Garcia has failed to meet
       the first prong of the Strickland test. There is insufficient evidence to show that

2
        Though we do not address the level of clarity in this case, we encourage trial counsel and
the courts to thoroughly examine the relevant statutes to determine the level of advice required
when comparing the deportable offenses with the Idaho conviction. Compare State v. Telford,
22 A.3d 43, 48 (N.J. Super. Ct. App. Div. 2011) (holding that sexual abuse of minor was not
sufficiently clear to require the higher standard of advice under Padilla), with State v. Sandoval,
249 P.3d 1019-20 (Wash. 2011) (holding that it was sufficiently clear the Washington rape
statute constituted an aggravated felony to require higher standard of advice).

                                                  5
       his trial counsel provided ineffective assistance of counsel.        A direct
       representation that the pending criminal charge would have adverse immigration
       consequences constitutes representation that meets an objective standard of
       reasonableness under Padilla.

(emphasis added) (footnote omitted). The court expressly found that Popoca-Garcia pled guilty
understanding that he would be deported. Further, the notion that Popoca-Garcia conceivably
would not be deported did not come from trial counsel, but instead came from the immigration
officials through the prosecutor. Trial counsel simply passed the information along. Trial
counsel expressly told Popoca-Garcia that the officials were mistaken. When viewed in context,
he was confirming that Popoca-Garcia would be deported because the immigration officials
could deport him and that they likely would since the law provided for it. There is substantial
evidence to support the district court’s finding that Popoca-Garcia pled guilty understanding that
he would be deported.
       Popoca-Garcia also argues that in light of his low intellectual functioning, his attorney
should not have told him that immigration services believed he could not be deported. He argues
that this could have led to the impression there was a chance he would not be deported. Trial
counsel testified that the psychosexual evaluation revealed that Popoca-Garcia functioned at a
low intellectual level; however, trial counsel also testified that he took special care to discuss the
case with his client based on his level of functioning. Again, there is substantial evidence to
support the district court’s finding that Popoca-Garcia pled guilty with the understanding that he
would be deported.
       Popoca-Garcia next contends that coupling the immigration agent’s comments with the
later statements by trial counsel regarding his advice at the change of plea hearing and at the
sentencing hearing, nullified his attorney’s earlier unequivocal statement that he would be
deported. Popoca-Garcia relies on State v. Sandoval, 249 P.3d 1015 (Wash. 2011). In that case,
the Washington Supreme Court stated, “The required advice [under Padilla] about immigration
consequences would be a useless formality if, in the next breath, counsel could give the
noncitizen defendant the impression that he or she should disregard what counsel just said about
the risk of immigration consequences.” Id. at 1020. However, the circumstances in Sandoval
are markedly different than the present case. In Sandoval, the defendant’s attorney told the
defendant “that he should accept the State’s plea offer because he would not be immediately
deported and that he would then have sufficient time to retain proper immigration counsel to

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ameliorate any potential immigration consequences of his guilty plea.” Id. at 1017. The Court
concluded that defendant’s “counsel’s advice impermissibly left [him] the impression that
deportation was a remote possibility.” Id. at 1020. Unlike Sandoval, trial counsel told Popoca-
Garcia he would be deported and that immigration officials incorrectly believed that they could
not deport him. There was nothing misleading about trial counsel’s advice. As to the later
statements by trial counsel, Popoca-Garcia had already pled guilty when the statements were
made. 3 These later statements did not play a role in Popoca-Garcia’s decision to plead guilty.
Therefore, the district court correctly concluded that Popoca-Garcia failed to show his counsel
was ineffective.
                                              III.
                                        CONCLUSION
       Popoca-Garcia failed to establish that his attorney provided ineffective assistance of
counsel.   Therefore, the district court’s judgment denying Popoca-Garcia’s post-conviction
petition is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




3
       The district court did not reach the second prong of Strickland that requires a showing of
prejudice. However, it is clear that Popoca-Garcia would struggle to establish prejudice since he
pled guilty after being expressly informed by his attorney that he would be deported.

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