                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Petitioner,

                                         v.

             HECTOR SEBASTION NUNEZ-DIAZ, Respondent.

                          No. 1 CA-CR 16-0793 PRPC
                               FILED 9-18-2018


     Petition for Review from the Superior Court in Maricopa County
                          No. CR2013-430489-001
           The Honorable Phemonia L. Miller, Judge Pro Tempore

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Karen B. Kemper
Counsel for Petitioner

Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix
By Ray A. Ybarra Maldonado
Counsel for Respondent


                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Judge Kent E. Cattani joined. Presiding Judge James B. Morse Jr. dissented.
                         STATE v. NUNEZ-DIAZ
                          Decision of the Court

W I N T H R O P, Judge:

¶1           The State of Arizona petitions this court for review of the
superior court’s order granting the petition for post-conviction relief filed
by Hector Sebastion Nunez-Diaz. We have considered the petition for
review and, for the reasons stated, grant review but deny relief.

¶2           Nunez-Diaz was charged with possession or use of a
dangerous drug (methamphetamine) and possession or use of a narcotic
drug (cocaine), each a class 4 felony. The record does not reflect that Nunez-
Diaz had a prior criminal history. He pled guilty to possession of drug
paraphernalia, a class 6 undesignated felony, and pursuant to the plea
agreement, the court suspended sentencing and placed him on eighteen
months’ unsupervised probation. Shortly afterward, Immigration and
Customs Enforcement officials took him into custody, subject to being
deported, and he agreed to a “voluntary departure” in lieu thereof, while
represented by a different attorney for his immigration proceedings.

¶3            Nunez-Diaz filed a petition for post-conviction relief,
claiming his plea counsel was ineffective for failing to secure a plea or
disposition of his charges that would have protected his ability to remain
in the United States, and not advising him that his plea would result in his
being subject to mandatory deportation. The superior court ordered an
evidentiary hearing.

¶4             Nunez-Diaz appeared via Skype and telephone at the
evidentiary hearing, and the superior court took testimony from him, his
sister, and his plea counsel. Nunez-Diaz testified that his plea counsel told
him there would be no problems with the plea and with his immigration
status if he entered the plea. He testified that he would not have signed the
plea agreement had he been advised of the specific immigration
consequences of the plea and that he was subject to mandatory deportation.
His sister testified to meeting with an immigration lawyer from the same
firm to which plea counsel belonged, and she was told the firm would help
Nunez-Diaz with his immigration issues after his plea. Based on this
meeting, they hired the firm to represent Nunez-Diaz. Representation was
then assigned to a different attorney in the firm.

¶5           Plea counsel testified she had explained to Nunez-Diaz that
there would be “immigration consequences” to the plea, based on the type
of plea. She admitted she had advised Nunez-Diaz the plea “could have
consequences for immigration,” but conceded she did not tell him the plea
would “certainly” have immigration consequences. In other words,


                                      2
                          STATE v. NUNEZ-DIAZ
                           Decision of the Court

counsel did not tell Nunez-Diaz that he was subject to being held without
bond and subject to mandatory deportation.

¶6            The superior court granted relief, and ordered the plea set
aside after concluding plea counsel’s performance fell below an objective
standard and that Nunez-Diaz was prejudiced by the ineffective assistance
of his counsel. The State’s motion for a rehearing was denied.

¶7             The State filed a petition for review, arguing the superior
court erred in finding a colorable claim and that Nunez-Diaz did not meet
his burden to show entitlement to relief under Strickland v. Washington, 466
U.S. 668, 687 (1984), superseded by statute on other grounds, Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(1996). We review the grant or denial of post-conviction relief for an abuse
of discretion. State v. Jenkins, 193 Ariz. 115, 118, ¶ 5 (App. 1998). Based on
the evidence presented at the hearing, we find no such abuse.

¶8              To show ineffective assistance of counsel, a party seeking
relief must show both deficient performance by counsel and prejudice.
Strickland, 466 U.S. at 687. We must “consider whether the defendant was
prejudiced by the ‘denial of the entire judicial proceeding . . . to which he
had a right.’” Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quoting Roe
v. Flores-Ortega, 528 U.S. 470, 483 (2000)). “[T]he defendant can show
prejudice by demonstrating a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going
to trial.” Id. (citation and internal quotations omitted). The requirements
for counsel include advising a client subject to immigration consequences
of “the risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 367 (2010),
abrogated in part on other grounds by Chaidez v. United States, 568 U.S. 342, 347
(2013).

¶9           Arizona Rule of Criminal Procedure 32.8(c) states in relevant
part: “The defendant has the burden of proving factual allegations by a
preponderance of the evidence.” The superior court credited Nunez-Diaz’
testimony, as well as that of his sister. The court thus found that “defense
counsel misrepresented the immigration consequences to defendant.”

¶10           “It is for the trial court to resolve conflicting testimony and to
weigh the credibility of witnesses.” State v. Alvarado, 158 Ariz. 89, 92 (App.
1988) (citation omitted). By making this credibility finding, the superior
court found that Nunez-Diaz had established he suffered from both
deficient performance and prejudice when he entered a plea not
understanding the immigration consequences of pleading guilty.



                                       3
                          STATE v. NUNEZ-DIAZ
                           Decision of the Court

¶11           The burden of proof then shifted to the State to prove “beyond
a reasonable doubt that the [constitutional] violation was harmless.” Ariz.
R. Crim. P. 32.8(c). This it failed to do. Although there was testimony that
Nunez-Diaz was generally advised there would be “immigration
consequences,” as noted above, he testified that he would not have signed
the plea agreement had he been advised of the specific immigration
consequences of the plea.

¶12          The superior court did not abuse its discretion in finding that
counsel was deficient and that, given the goals of Nunez-Diaz and the
possible penalties and consequences had he gone to trial, Nunez-Diaz was
prejudiced by the faulty advice.1 The State failed to show beyond a
reasonable doubt that relief should have been denied.

¶13           Accordingly, we grant review but deny relief.



MORSE, J., dissenting:

¶14           I respectfully dissent. The record below indicates that (i)
Nunez-Diaz did not have legal immigration status in the United States, (ii)
Immigration and Customs Enforcement officials had placed a detention
hold for removal proceedings against him prior to his guilty plea, and (iii)
Nunez-Diaz agreed to voluntary departure and did not contest removal
after his conviction. Based on this record, Nunez-Diaz was a deportable
alien prior to his conviction, see 8 U.S.C. § 1227(a)(1)(B), and his only
potential claim of prejudice arises from the possibility of discretionary relief
from removal under 8 U.S.C. § 1229b.2 Under these circumstances, the
superior court erred in finding that Nunez-Diaz established prejudice. See


1     Although we agree with our dissenting colleague that Nunez-Diaz
was a deportable alien prior to his conviction, see U.S.C. § 1227(a)(1)(B), the
record below does not establish that he necessarily would have been
deported had he gone to trial and been acquitted of the charges.

2      Notably, the petitioner in Padilla cited 8 U.S.C. § 1227(a)(1) and
affirmatively argued that "only lawfully admitted immigrants can plausibly
allege prejudice from conviction of a deportable offense. Illegal aliens
generally cannot, absent a colorable pending or future claim to legal
immigration status, because illegal presence is grounds for removal
independent of the conviction." Reply Brief of Petitioner, 2009 WL 2917817
at *17-18, in Padilla v. Kentucky, 559 U.S. 356 (2010).


                                       4
                          STATE v. NUNEZ-DIAZ
                            Morse, J., dissenting

United States v. Batamula, 823 F.3d 237, 243 (5th Cir. 2016) (en banc)
("Because Batamula was already deportable under § 1227(a)(1)(C)(i) before
he pleaded guilty under the two-count information, it would not have been
rational for him to proceed to trial in the hopes of avoiding deportability
under another subsection of § 1227."); see also United States v. Donjuan, 720
F.App'x 486, 490 (10th Cir. 2018) (unpublished) ("The consequence of
Defendant's guilty plea was not removal, as was the situation in Padilla.
Instead, the guilty plea made Defendant ineligible to receive the
discretionary relief of cancellation of removal, which is fundamentally
different than a lawful resident alien being subject to removal due to a
guilty plea."); United States v. Sinclair, 409 F.App'x 674, 675 (4th Cir. 2011)
(unpublished) (noting that despite the lack of proper immigration
warnings, the defendant's "substantial rights were unaffected because he
was an illegal alien and therefore his guilty plea had no bearing on his
deportability"); Garcia v. Tennessee, 425 S.W.3d 248, 261 n.8 (Tenn. 2013)
(noting that "courts have consistently held that an illegal alien who pleads
guilty cannot establish prejudice" under Padilla and collecting cases); Texas
v. Guerrero, 400 S.W.3d 576, 588-89 (Tex. Crim. App. 2013) ("Unlike Jose
Padilla, appellee was an undocumented immigrant and was deportable for
that reason alone, both in 1998 and today. Had appellee gone to trial with
counsel and been acquitted he would not have been transformed into a legal
resident. . . . The prospect of removal therefore could not reasonably have
affected his decision to waive counsel and plead guilty."); United States v.
Aceves, 2011 WL 976706, at *5 (D. Haw. Mar. 17, 2011) ("Had he gone to trial
instead of pleading guilty, he would not have been transformed into a legal
resident. This is so even if he had been acquitted. In other words, it was
not his conviction that made him removable."); but see United States v. Arce-
Flores, 2017 WL 4586326 (W.D. Wash. Oct. 16, 2017) (rejecting argument
that, as a matter of law, illegal aliens cannot demonstrate prejudice under
Padilla).




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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