            Opinions of the Colorado Supreme Court are available to the
        public and can be accessed through the Judicial Branch’s homepage at
          http://www.courts.state.co.us. Opinions are also posted on the
          Colorado Bar Association’s homepage at http://www.cobar.org.


                                                    ADVANCE SHEET HEADNOTE
                                                                  June 22, 2020

                                    2020 CO 59

No. 18SC572, People v. Figueroa-Lemus—Matters Subject to Appeal—Immigration
Advisements

      Both the People and Figueroa-Lemus petitioned for review of the court of

appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion

to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction

on the grounds that until the defendant is actually sentenced and judgment of

conviction enters, there can be no final judgment from which an appeal would lie.

The defendant challenges the appellate court’s ultimate conclusion on the merits

that he was not entitled to an advisement by his counsel to the effect that he would

be detained without bond during the pendency of any deportation proceedings

initiated against him by the federal government.

      The supreme court vacates the court of appeals’ opinion. Because a guilty

plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and

sentence does not become a final, appealable judgment unless and until the

deferral is revoked, sentence is actually imposed, and judgment of conviction
enters, the defendant was without any immediate right to appeal the denial of his

Crim. P. 32(d) motion, and the court of appeals was therefore not authorized to

entertain the defendant’s claim. The supreme court chooses, nevertheless, to

exercise its original jurisdiction in this case, and finds that the defendant was

adequately advised concerning the deportation consequences of his plea, and

therefore the district court did not abuse its discretion in denying his motion to

withdraw.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                   2020 CO 59

                      Supreme Court Case No. 18SC572
                    Certiorari to the Colorado Court of Appeals
                     Court of Appeals Case No. 14CA1181

                         Petitioner/Cross-Respondent:

                      The People of the State of Colorado,

                                        v.

                         Respondent/Cross-Petitioner:

                         Eswin Ariel Figueroa-Lemus.

                               Judgment Vacated
                                     en banc
                                  June 22, 2020


Attorneys for Petitioner/Cross-Respondent:
Philip J. Weiser, Attorney General
William G. Kozeliski, Senior Assistant Attorney General
      Denver, Colorado

Attorneys for Respondent/Cross-Petitioner:
Megan A. Ring, Public Defender
Mark Evans, Deputy Public Defender
      Denver, Colorado




CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1    Both the People and Figueroa-Lemus petitioned for review of the court of

appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion

to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction

on the grounds that until the defendant is actually sentenced and judgment of

conviction enters, there can be no final judgment from which an appeal would lie.

The defendant challenges the appellate court’s ultimate conclusion on the merits

that he was not entitled to an advisement by his counsel to the effect that he would

be detained without bond during the pendency of any deportation proceedings

initiated against him by the federal government.

¶2    Because a guilty plea taken pursuant to a statutorily sanctioned stipulation

to defer judgment and sentence does not become a final, appealable judgment

unless and until the deferral is revoked, sentence is actually imposed, and

judgment of conviction enters, the defendant was without any immediate right to

appeal the denial of his Crim. P. 32(d) motion, and the court of appeals was

therefore not authorized to entertain the defendant’s claim.             Choosing,

nevertheless, to exercise our original jurisdiction in this case, we find that the

district court did not abuse its discretion in denying the defendant’s motion.

¶3    The judgment of the court of appeals is therefore vacated, and the case is

returned to the district court for further proceedings consistent with this opinion.



                                         2
                                         I.

¶4    Eswin Ariel Figueroa-Lemus, a lawful permanent resident of the United

States, was arrested on October 28, 2012, and charged with one count each of

possession of a controlled substance (cocaine), possession of drug paraphernalia,

and driving under the influence. On May 6, 2013, he pled guilty to the controlled

substance count pursuant to a statutorily sanctioned stipulation with the district

attorney for the deferral of judgment for a period of two years, pending

satisfaction of the conditions of his deferral. At the providency hearing at which

his plea was taken, the defendant acknowledged his awareness that his plea could

make him deportable, and defense counsel affirmatively stated on the record that

he and the defendant had a lengthy conversation about immigration

consequences, after which the defendant understood that this drug offense would

render him deportable. When expressly asked by the trial court whether plea

counsel’s statement was true, the defendant responded affirmatively.

¶5    On August 6, 2013, the People moved to revoke the deferred judgment,

alleging that the defendant had been arrested by federal Immigration and

Customs Enforcement (“ICE”) officers and therefore could no longer comply with

the requirements of his deferred judgment. On October 10, 2013, the defendant

filed a motion pursuant to Crim. P. 32(d) to withdraw his guilty plea, alleging in

support that he had received constitutionally deficient assistance of counsel at the
                                         3
plea hearing because his counsel failed to give him correct advice about the

immigration consequences of his plea. He asserted that counsel was obligated to,

but did not, properly advise him of, among other things, the fact that if he were to

be subjected to deportation proceedings, he would be detained without bond

throughout the pendency of those proceedings.

¶6    At the time his motion was heard, the defendant testified that if he had been

properly advised, he would have rejected the plea deal and insisted on going to

trial. His counsel testified that he affirmatively advised the defendant he would

eventually be deported, but he conceded that he never told the defendant directly

that he would be subjected to mandatory detention during the pendency of any

deportation proceedings. In addition, an immigration attorney to whom defense

counsel had referred the defendant before his plea, testified that he also informed

the defendant that accepting the plea would result in his deportation but did not

specify that accepting the plea would subject him to mandatory detention during

the pendency of any deportation proceedings.

¶7    On May 5, 2014, the trial court denied the motion to withdraw the

defendant’s guilty plea. The trial court found credible the testimony of the two

attorneys and further found that their advice that the defendant would be

deported if he accepted the plea was adequate advice concerning the deportation

consequences of the plea.     The court also specifically found that mandatory
                                         4
detention without bond was not a clear deportation consequence of the plea as to

which the defendant was entitled to an advisement, noting the absence of any

authority for that proposition.

¶8    Although the court of appeals acknowledged that a deferred judgment is

not a final judgment for purposes of appeal, a majority of the division nevertheless

concluded for a number of reasons that unless the defendant were entitled to an

immediate appeal of the denial of his motion to withdraw, he would be without

an adequate remedy. Characterizing our holding in Kazadi v. People, 2012 CO 73,

291 P.3d 16, as permitting a defendant to “challenge a deferred judgment under

Crim. P. 32(d),” People v. Figueroa-Lemus, 2018 COA 51, ¶ 9, __ P.3d __, the court of

appeals concluded that it was unlikely that we would provide a remedy in the

district court without allowing appellate review. Id. at ¶ 11. On the merits,

however, the majority affirmed the trial court’s denial of the defendant’s Crim. P.

32(d) motion, expressly rejecting his contention that defense counsel was obliged

to advise him he would be subject to mandatory detention during the pendency

of his deportation proceedings and instead concluding that he had been

adequately advised of the immigration consequences of his plea.

¶9    Both the People and the defendant then petitioned this court for a writ of

certiorari to the court of appeals.



                                         5
                                         II.

¶10   Answering the question whether a criminal defendant has a right of

immediate appeal from the denial of his motion to withdraw a guilty plea entered

pursuant to a deferred judgment stipulation does not require us to break new

ground.

¶11   We have a number of times in the past made abundantly clear that a

statutorily sanctioned deferred judgment and sentence is not a final judgment, and

therefore, unless and until revoked, it may not be subject to either direct appellate

review or postconviction relief. People v. Carbajal, 198 P.3d 102, 105 (Colo. 2008);

see also People In Interest of J.D., 2020 CO 48, ¶ 14, __ P.3d __ (citing precedent

explaining that the entry of a deferred judgment is not a final appealable sentence);

Kazadi, ¶¶ 18–19, 291 P.3d at 22 (“[A] deferred judgment is not a final judgment,

and thus may not be subject to either Crim. P. 35 review or direct appellate review

until revoked.” (quoting Carbajal, 198 P.3d at 105)). Although the decisions and

rulings of a district court on motions made in the course of a criminal case are not,

in the absence of specific authority to the contrary provided by rule or statute,

appealable until a final judgment is reached, see C.A.R. 1(a), the court of appeals

reasoned that we would not have permitted a challenge to deferred judgments by

Crim. P. 32(d) in Kazadi had we not considered the denial of a motion to withdraw

sufficiently final to permit immediate appellate review.       In combination, the
                                         6
intermediate appellate court’s misunderstanding of the scope of Crim. P. 32(d), its

misreading of our opinion in Kazadi, and its mistaken presumptions about the

availability of review upon entry of a final judgment, all led it to this erroneous

conclusion.

¶12   In Kazadi we found the procedural vehicle of Crim. P. 32(d) available for the

withdrawal of those guilty pleas taken pursuant to a stipulation for deferred

judgment, just as it is for the withdrawal of pleas of guilt and nolo contendere

generally, precisely because a deferred judgment is not yet a final judgment subject

to review by a higher court. ¶¶ 18–20, 291 P.3d at 22–23. Unlike Crim. P. 35, which

provides for postconviction relief, Rule 32(d) does not authorize, or provide any

mechanism for, challenges to the validity—constitutional or otherwise—of guilty

pleas. Instead, it provides a vehicle for a pleading defendant to present the court

taking his plea with a fair and just reason for discretionarily permitting

withdrawal of that plea, rather than proceeding to sentencing and final judgment.

See Kazadi, ¶ 14, 291 P.3d at 21.

¶13   As we have only recently again made clear, while a demonstration of the

likelihood of a constitutional defect in the taking of a plea could certainly present

a fair and just reason for permitting its withdrawal, so too could a number of other

grounds not amounting to error at all. J.D., ¶ 13. The more flexible, discretionary

standard of Crim. P. 32(d) permits considerations of fairness and the avoidance of
                                         7
error rather than a remedy for error. See People v. Chippewa, 751 P.2d 607, 611 n.6

(Colo. 1988) (declining to follow the court of appeals, which unnecessarily

addressed the constitutional validity of the defendant’s advisement concerning

mandatory sentencing, and instead merely finding an abuse of discretion where

the defendant’s Crim. P. 32(d) motion established a fair and just reason for

withdrawal of his plea).

¶14    Although section 16-12-101, C.R.S. (2019), grants every person convicted of

an offense under the statutes of this state the right of appeal to review the

proceedings resulting in his conviction, it expressly does so only according to the

applicable rules of the supreme court, a reference we have often construed to

include the final judgment requirement of the appellate rules. C.A.R. 1(a) (“An

appeal to the appellate court may be taken from . . . [a] final judgment of any

district . . . court . . . .”); see People v. Gabriesheski, 262 P.3d 653, 656–57 (Colo. 2011)

(appealable matters are subject to the final judgment requirement of C.A.R. 1). Our

statement in Kazadi to the effect that we will not overturn the denial of a motion to

withdraw absent an abuse of discretion implied nothing to the contrary, instead

merely articulating the standard of review of Crim. P. 32(d) motions without

implying anything about the timing of such a review, much less suggesting an

entitlement to immediate appellate review. And the suggestion of the court of

appeals that an appeal from the denial of a motion to withdraw would be time-
                                             8
barred whenever the deferred judgment is not revoked within forty-nine days

following denial simply misreads C.A.R. 4(b), which measures time limitations for

appeal only from appealable orders.

¶15   The denial of Crim. P. 32(d) motions to withdraw guilty pleas are clearly

reviewable after sentencing and the entry of final judgments of conviction. See,

e.g., Chippewa, 751 P.2d at 608–09. Although the window for both filing and

seeking review of the denial of a Crim. P. 32(d) motion is typically narrow, in

Kazadi we found nothing on the face of the rule prohibiting a defendant stipulating

to a deferred judgment from also taking advantage of that rule, if he so chooses.

¶ 20, 291 P.3d at 22–23. By the same token, however, the fact that we have

construed the rule to entitle a defendant to move for the discretionary withdrawal

of his plea up until his deferred judgment is revoked and judgment enters in no

way implies that he also be entitled to bootstrap this advantage into a claim for

appellate review before judgment actually enters.

¶16   In any event, rarely will it be the case that a defendant will be substantially

disadvantaged by having to either fulfill or violate the conditions of his deferred

judgment stipulation before challenging the plea court’s exercise of discretion to

deny a motion to withdraw a guilty plea. However, in the limited situations in

which that may be the case, a defendant laboring under a deferred judgment

stipulation in this jurisdiction has a realistic opportunity for discretionary review
                                         9
by this court. Paul v. People, 105 P.3d 628, 632–33 (Colo. 2005). As we have done

at times in the past, where the defendant’s assignment of error has been fully

briefed, the court of appeals has published its resolution of the matter, and our

determination that the defendant’s claim is not yet ripe for appeal would

otherwise result in unnecessary delay, see, e.g., id., we choose to exercise our

original jurisdiction and address the defendant’s claim.

¶17   The defendant asserts that he was denied the effective assistance of counsel

in entering into his deferred judgment stipulation because his counsel failed to

advise him that he would be detained during deportation proceedings by the

federal government, and had he been made aware of that fact, he would not have

entered into the agreement. In Padilla v. Kentucky, 559 U.S. 356, 365–66, 369 (2010),

the United States Supreme Court found that the virtually automatic deportation

mandate of existing federal immigration law was a unique consequence of which

counsel has an obligation to inform his client before pleading guilty. Where

immigration law is less than clear, the Court required counsel to advise his client

merely that there may be a risk of adverse immigration consequences, but where

the law is “succinct and straightforward,” it required counsel to provide correct

advice. Id. at 369. In Juarez v. People, 2020 CO 8, ¶¶ 17–18, 457 P.3d 560, 564, we

recently considered this requirement of Padilla, and interpreted it to be that where

federal law makes a person pleading guilty to a particular crime deportable, the
                                         10
correct advice for counsel to give is to inform his client precisely that—that by

entering a guilty plea, federal law will make him deportable.

¶18   In denying the defendant’s Crim. P. 32(d) motion, the district court found

credible the testimony of his counsel that he not only advised his client that by

entering his guilty plea he would be deported, but that it was not a matter of “if”

but only of “when.” There is no assertion that the defendant was given any

additional, incorrect advice about the immigration consequences of his plea.

Nothing more concerning the immigration consequences of his plea was required

of his counsel. Since federal practice concerning detention during deportation

proceedings was not something of which the defendant was entitled to

advisement by either his counsel or the court, see Juarez, ¶¶ 17–18, 457 P.3d at 564,

there is no basis for finding that the district court abused its discretion in denying

the defendant’s motion to withdraw his guilty plea.

                                         III.

¶19   The judgment of the court of appeals is therefore vacated, and the case is

returned to the district court for further proceedings consistent with this opinion.




                                         11
