                                                                                      CP




 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                         )
                                              )         No. 74309-1-1
                      Respondent,             )
                                              )         DIVISION ONE
               V.                             )
                                              )         UNPUBLISHED OPINION
 JORGE MADRIGAL, aka JOSE                     )
 MARTINEZ;                                    )
                                              )
                      Appellant               )
                                              )
 GONSALO M. MEDIES,                           )
                                              )
                      Defendant.              )         FILED: April 24, 2017
                                              )
        APPELWICK, J. — The trial court denied Madrigal's motion to vacate his 1985

judgment and sentence. The State contends that this motion was time barred.

Madrigal argues that counsel provided ineffective assistance by not informing him

of the immigration consequences of his guilty plea. We affirm.

                                      FACTS

        In 1985, Jorge Madrigal was charged with unlawful possession of a

controlled substance, heroin. He pleaded guilty to the charge. Madrigal did not

have legal status in the United States at the time. Madrigal was sentenced to 35

days.
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       In 2013,the Department of Homeland Security notified Madrigal that he was

subject to removal. It initiated removal proceedings. The listed reason for removal

was that Madrigal was an alien present in the United States who had not been

admitted or paroled. There was no mention of Madrigal's 1985 conviction.

       In 2015, Madrigal sought to vacate his 1985 judgment and sentence. He

alleged that were it not for this prior conviction, he would be eligible for cancellation

of removal. He argued that his guilty plea was not voluntarily and intelligently

made. And, he contended that he was denied effective assistance of counsel,

because his attorney never advised him of the immigration consequences of a

guilty plea.

       The court held a hearing on the motion. Madrigal's counsel from the 1985

case, Sydney Glass, testified. The trial court concluded that Madrigal did not

receive ineffective assistance of counsel. It denied Madrigal's motion. Madrigal

appeals.

                                     DISCUSSION

       Madrigal argues that the trial court erred in denying his motion to vacate the

judgment and sentence. He asserts that counsel had a duty to inform him of the

immigration consequences of the plea, yet failed to do so. The State contends

that Madrigal's collateral attack is time barred.

       Madrigal moved to vacate the judgment and sentence pursuant to CrR 7.8.

CrR 7.8(b)(5) permits a trial court to relieve a party from a final judgment for any

reason justifying relief. We review a trial court's denial of a CrR 7.8 motion for an

abuse of discretion. State v. Martinez, 161 Wn. App. 436, 440, 253 P.3d 445


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(2011). A trial court abuses its discretion when it bases its decision on untenable

or unreasonable grounds. Id.

  I.   Time Bar

       A CrR 7.8 motion must be made within a reasonable time. CrR 7.8(b).

RCW 10.73.090(1) provides that no motion for collateral attack on a judgment and

sentence may be filed more than one year after the judgment was filed, if the

judgment and sentence is valid on its face and was rendered by a court of

competent jurisdiction. But, this time limit does not apply to a motion where

       [t]here has been a significant change in the law, whether substantive
       or procedural, which is material to the conviction, sentence, or other
       order entered in a criminal or civil proceeding instituted by the state
       or local government, and either the legislature has expressly
       provided that the change in the law is to be applied retroactively, or
       a court, in interpreting a change in the law that lacks express
       legislative intent regarding retroactive application, determines that
       sufficient reasons exist to require retroactive application of the
       changed legal standard.
RCW 10.73.100(6).

       The State contends that Madrigal's collateral attack on the judgment and

sentence is time barred. It asserts that the exception in RCW 10.73.100(6) does

not apply here, because Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010) is not a significant change in the law material to Madrigal's

conviction.

       In Padilla, the United States Supreme Court recognized that the

constitutional guarantee of effective assistance of counsel requires counsel to

inform a criminal defendant of potential immigration consequences of a guilty plea.

Id. at 374. Since Padilla, Washington courts have addressed whether that rule


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constitutes a significant change in the law for purposes of RCW 10.73.100(6). See

e.g., In re Pers. Restraint of Yunq-Cheng Tsai, 183 Wn.2d 91, 103, 351 P.3d 138

(2015); In re the Pers. Restraint of Orantes, 197 Wn. App. 737,           P.3d

(2017). In Yunq-Cheng Tsai, the Washington Supreme Court held that Padilla was

a significant change in state law. 183 Wn.2d at 103.

        In Orantes, we concluded that this significant change in the law was material

to Orantes's conviction. 197 Wn. App. at 743. There, like here, the State

contended that Padilla was not material to Orantes's conviction, because

Washington courts previously accepted similar claims before Padilla. Icl. The

State asserted that Padilla changed the law with respect to nonadvice claims, but

did not change the law for incorrect advice claims. Id. We disagreed, noting that

Washington courts would have rejected Orantes's claim before Padilla. Id. at 743-

44, 746. Therefore, the RCW 10.73.100(6) exception applied. [çj. at 749.

        Here, Madrigal alleges that he was not informed of the immigration

consequences of his guilty plea. This type of claim would have been barred pre-

Padilla. We conclude that Madrigal's claim is not time barred.

  II.   Ineffective Assistance

        Madrigal contends that the trial court erred in concluding that counsel's

performance was not deficient. He asserts that counsel had an obligation to advise

him of the immigration consequences of pleading guilty, and failed to do so. A

claim of ineffective assistance of counsel presents a mixed question of law and

fact reviewed de novo. Martinez, 161 Wn. App. at 441.




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      The Sixth Amendment right to effective assistance of counsel extends to

the plea process. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015(2011).

Where counsel gives faulty advice, the defendant's guilty plea may be involuntary

or unintelligent. Id. To establish ineffective assistance of counsel, the defendant

must show both that counsel's performance was objectively unreasonable and that

the defendant was prejudiced. Id. We presume counsel was effective. Martinez,

161 Wn. App. at 441.

       Under Padilla, counsel's duty to provide effective assistance extends to

advice about immigration consequences of a guilty plea. 559 U.S. at 364, 366.

Where immigration consequences of a guilty plea are truly clear, counsel must

correctly advise the defendant that pleading guilty would result in deportation. Id.

at 368-69. But, where the law is not straightforward, counsel must provide only a

general warning that the charges may carry a risk of adverse immigration

consequences. Id. at 369. Both incorrect advice and the failure to give any advice

can constitute ineffective assistance of counsel. Id. at 370-71.

       Washington courts have followed Padilla to hold that counsel provided

ineffective assistance by failing to correctly inform clients of the potential

immigration consequences of a guilty plea. See, e.q., Sandoval, 171 Wn.2d at

174; Martinez, 161 Wn. App. at 442. Sandoval told his attorney that he did not

want to plead guilty if it would result in deportation, and his attorney noted that

Sandoval was very concerned about the possibility of deportation. Sandoval, 171

Wn.2d at 167. Yet, counsel advised Sandoval to plead guilty and assured him that

he would have time to retain immigration counsel to ameliorate any immigration


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consequences of the plea. Id. The Washington Supreme Court held that this

advice constituted deficient performance. Id. at 174. Counsel's advice led

Sandoval to believe that deportation was only a remote possibility. Id. at 173.

Martinez claimed that counsel failed to inform him that his plea could have

immigration consequences, and counsel admitted that he knew very little about

immigration law. Martinez, 161 Wn. App. at 440. The Court of Appeals held that

these facts showed that counsel did not warn Martinez of his certain eligibility for

deportation. Id. at 442. Therefore, counsel's performance was deficient. Id.

       Madrigal's declaration in support of his motion to vacate the judgment and

sentence set out his alleged facts concerning the guilty plea. He alleged that he

never really talked to his attorney except for the day that he pleaded guilty.

Madrigal stated, "[Counsel] never told me that I could get deported for taking the

guilty plea. Had I known the consequences' I would not have ple[a]d[ed] guilty to

that charge." He further declared,"My attorney did not advise me of any relief from

immigration deportation. He did not tell me to contact an immigration attorney

before 1 ple[a]d[ed] guilty."

       Madrigal's plea counsel, Glass, testified at the hearing on the motion. He

testified that he used to work as a public defender in King County. He did not

remember representing Madrigal specifically, but he did represent individuals who

were undocumented. He recalled that his common practice was to inquire into a

client's immigration status. But, he did not research any relevant immigration law,

refer clients to an immigration attorney, or give a special warning regarding

immigration consequences before proceeding with a client's guilty plea. The only


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warning he would give clients was the information contained on the plea form.

However, Glass confirmed that his common practice was to discuss the plea and

consequences with the client, including the State's recommendation.

      The plea form in this case contained a boilerplate warning: "I understand

that if I am not a citizen of the United States, a plea of guilty to an offense

punishable as a crime under state law is grounds for deportation, exclusion from

admission to the United States, or denial of naturalization pursuant to the laws of

the United States." And, the plea agreement contained a section acknowledging

that Madrigal had been informed and understood the State's recommendations.

This section listed the State's particular recommendations, which included

deportation. The State's sentencing recommendations document also showed

that the State was seeking deportation as part of Madrigal's sentence.

       Here, counsel did not need to research immigration law to ascertain the

likely immigration consequences of Madrigal's guilty plea. Deportation was an

explicit recommendation from the State. This was conveyed to Madrigal in the

plea agreement—not just in the boilerplate warning, but in a handwritten list of the

State's recommendations. And, counsel confirmed that his common practice was

to discuss the State's recommendation with a client. He further noted that an

interpreter would have read the entire plea agreement to the client.

       We conclude that Madrigal has not shown ineffective assistance of counsel.

This case is unlike Sandoval or Martinez, where attorneys failed to correctly inform

their clients of the immigration consequences of pleading guilty. Deportation was

not merely a likely consequence of Madrigal's plea, but one explicitly sought by the


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State. Counsel's standard practice was to review the State's recommendations

with the client, which would have necessarily included discussing the potential for

deportation in this case.    Thus, counsel provided constitutionally competent

assistance under Padilla. The trial court did not abuse its discretion in denying

Madrigal's motion to vacate the judgment and sentence.

       We affirm.




WE CONCUR:




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