COLORADO COURT OF APPEALS                                       2017COA48


Court of Appeals No. 13CA2318
City and County of Denver District Court No. 11CR3951
Honorable John W. Madden IV, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hector Toby Sifuentes,

Defendant-Appellant.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division I
                         Opinion by JUDGE NAVARRO
                            Taubman, J., concurs
                             Graham, J., dissents

                           Announced April 20, 2017


Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Hector Toby Sifuentes, appeals the district court’s

 order denying his petition for postconviction relief under Crim. P.

 35(c). Sifuentes claims that the court erred by concluding that he

 did not show prejudice from his counsel’s erroneous advice about

 the immigration consequences of his guilty plea. To address his

 claim, we identify factors pertinent to the prejudice analysis in this

 context. Considering those factors, we agree with Sifuentes, reverse

 the order, and remand with directions.

                I.     Factual and Procedural History

     A.   Defendant’s Background, the Criminal Charges, and the
                         Ensuing Plea Agreement

¶2    Defendant was born in Mexico in 1970. He moved to the

 United States when he was two years of age and became a lawful

 permanent resident in 1988. He also has significant other ties to

 the United States, including four United States-citizen children,

 several siblings living lawfully in the country, and a disabled mother

 (also a lawful permanent resident) for whom he had been acting as

 caretaker while sharing a home in Denver. He has committed

 several traffic offenses and misdemeanors but no felonies prior to

 the charges in this case. None of his prior convictions involved



                                    1
 distribution of drugs. Defendant has been receiving medical

 treatment for sclerosis of the liver, kidney stones, and class one

 diabetes, which has rendered him insulin dependent. He has no

 ties — familial or otherwise — to Mexico.

¶3    In 2011, the prosecution charged defendant with distributing

 and conspiring to distribute a controlled substance, class three

 felonies. He allegedly sold the substance to a confidential informant

 in a transaction that was audio- and video-recorded by police.

 Defendant later pleaded guilty to an added count of distribution of a

 schedule III controlled substance as a class four felony, in exchange

 for dismissal of the original charges. The plea agreement did not

 include sentencing concessions.

¶4    After conducting a providency hearing and accepting the guilty

 plea, the trial court sentenced defendant to Community Corrections

 (Comcor) for five years. Comcor, however, rejected defendant when

 Immigration and Customs Enforcement (ICE) placed him on an

 immigration detainer following his conviction. The trial court

 therefore resentenced defendant to forty-two months in prison

 followed by three years of mandatory parole. Unbeknownst to

 defendant and defense counsel, the conviction triggered automatic


                                   2
 mandatory deportation (known as removal) under federal law, along

 with mandatory detention throughout the ensuing deportation

 proceedings. See 8 U.S.C. § 1226(c)(1)(B) (2012).

                   B.    Postconviction Proceedings

¶5    Defendant filed a Crim. P. 35(c) petition for postconviction

 relief seeking to withdraw his guilty plea on the ground of ineffective

 assistance of his plea counsel. Defendant claimed that his plea

 counsel failed to advise him of a clear and unavoidable immigration

 consequence flowing directly from his guilty plea — he would be

 deported automatically. Instead, his plea counsel advised him that,

 in light of his strong ties to this country, he might be able to remain

 here even after he pleaded guilty. Defendant maintained that, if he

 had been properly advised, he would have rejected the plea

 agreement and insisted on proceeding to trial.

¶6    The postconviction court held a two-day evidentiary hearing.

 Defendant’s plea counsel testified that the risk of deportation

 played a central motivating role in defendant’s plea deliberations.

 Defendant emphasized his concern over removal from the country

 the first time he spoke with plea counsel, and he repeated that

 concern every time thereafter. But the prosecution offered only a


                                    3
 guilty plea to distribution of a schedule III controlled substance,

 which carried a lower sentencing range than the original charges

 but did not avoid the risk of deportation altogether.

¶7    Thus, before the providency hearing, plea counsel advised

 defendant that a guilty plea to the reduced charge created a risk of

 deportation but deportation would not be automatic and he would

 still be eligible for a sentence to probation or Comcor.1 At the

 resentencing hearing, plea counsel continued to inform defendant

 that, even though he had been placed on an immigration detainer

 after his conviction, he still had a chance of staying in the United

 States based on his long residential history in the country and his

 complicated health issues. As the postconviction court found, all of

 this advice was erroneous.

¶8    The postconviction court also heard testimony from defendant

 and his sister. His sister testified that defendant’s family resides in

 the United States and that he lacks any ties to Mexico. She also

 explained that defendant’s medical condition likely rendered a

 1 Based on plea counsel’s testimony, the postconviction court found
 that, during plea negotiations, counsel had advised defendant that
 immigration authorities would consider his lawful permanent
 resident status, his length of time in this country, and his family
 and health concerns when deciding whether to deport him.

                                    4
 longer prison sentence in the United States preferable to faster

 deportation to Mexico, where his access to medical treatment would

 be uncertain. Defendant reiterated his misunderstanding of the

 immigration consequences arising from his guilty plea (i.e., he

 thought he would still have a chance to remain in this country). He

 explained that he probably would never see his ailing mother again

 if he were deported. He also confirmed his sister’s concerns about

 his own medical treatment, and he told the court: “I’ll probably die

 out there [in Mexico], because I have no one out there, absolutely

 nobody. Everybody I have is right here in this courtroom today.”

¶9    Finally, an immigration attorney — whom defendant’s plea

 counsel had consulted before his plea — testified at the

 postconviction hearing. The immigration attorney explained that

 defendant’s plea counsel had consulted her about immigration

 issues generally, but she did not offer advice to plea counsel about

 defendant’s specific situation. The immigration attorney also

 testified that defendant had retained her after his guilty plea and

 after ICE had placed him on an immigration detainer. Although she

 explained that defendant had retained her shortly before his

 resentencing hearing, she did not testify that she advised him of the


                                   5
  automatic deportation consequences of his conviction prior to the

  resentencing hearing. And the immigration attorney did not

  represent him at the resentencing hearing.

¶ 10   The postconviction court denied the petition in a written order.

  The court first agreed with defendant that his plea counsel had

  failed to properly advise him of the automatic immigration

  consequences of his plea: “[I]t is clear that the plea was to an

  aggravated felony which made the Defendant automatically

  deportable. Further, the plea to an aggravated felony meant that

  factors such as the Defendant’s time living in this country, his

  health or his family situation would not protect him from

  deportation.” Therefore, the court concluded that plea counsel’s

  advice “constituted deficient representation.”

¶ 11   According to the court, however, defendant did not suffer

  prejudice because “[d]ue to audio and video recordings [of the

  offense] there was no rational basis to believe that [he] would not be

  convicted at trial.” As a result, the court held that, even if

  defendant had known of the correct immigration consequences of

  the guilty plea, it would not have been rational for him to reject the

  plea offer.


                                     6
¶ 12   The postconviction court further concluded that, even if

  defendant had established prejudice from his counsel’s advice, he

  was “not entitled to relief due to the circumstances of his

  providency hearing.” Specifically, he had signed a written

  Crim. P. 11 advisement indicating, among many other points, that

  his guilty plea would result in deportation. And, during the

  colloquy with the plea court at the providency hearing, defendant

  indicated generally that he understood the terms of the written

  advisement and asked no questions.

               II.     Ineffective Assistance of Counsel

¶ 13   Defendant contends that the district court erred in

  determining that his plea counsel’s deficient performance did not

  prejudice him. We agree.

               A.    General Law and Standard of Review

¶ 14   Criminal defendants have a right to counsel, see U.S. Const.

  amends. VI, XIV; see also Colo. Const. art. II, § 16, and “the right to

  counsel is the right to the effective assistance of counsel,” McMann

  v. Richardson, 397 U.S. 759, 771 n.14 (1970). This right extends to

  plea bargaining. People v. Corson, 2016 CO 33, ¶ 32 (citing Lafler v.

  Cooper, 566 U.S. __, 132 S. Ct. 1376, 1384 (2012)).


                                     7
¶ 15   Ineffective assistance of counsel during plea bargaining may

  constitute an adequate ground for postconviction relief under Crim.

  P. 35(c). See People v. Hunt, 2016 COA 93, ¶ 12. To prevail on

  such a claim, a defendant must establish that (1) counsel’s

  performance fell below the level of reasonably competent assistance

  demanded of attorneys in criminal cases, and (2) the deficient

  performance prejudiced the defendant. Strickland v. Washington,

  466 U.S. 668, 687 (1984); accord Dunlap v. People, 173 P.3d 1054,

  1062-63 (Colo. 2007).

¶ 16   A conclusion on either Strickland prong presents a mixed

  question of law and fact. Carmichael v. People, 206 P.3d 800, 807

  (Colo. 2009). While we review a district court’s factual findings with

  deference, we review the application of law to those findings de

  novo. Id. at 808. That is, we independently review the ultimate

  determinations on Strickland’s performance and prejudice prongs.

  People v. Brown, 250 P.3d 679, 681 (Colo. App. 2010); see also

  People v. Newmiller, 2014 COA 84, ¶ 18.




                                    8
                               B.   Analysis

                       1.    Deficient Performance

¶ 17   Although neither party challenges the postconviction court’s

  conclusion that defendant satisfied the first Strickland prong, we

  explain that the law and the record support the court’s decision.

¶ 18   The offense to which defendant pleaded guilty qualified as an

  “aggravated felony” under federal immigration law. See 8 U.S.C.

  § 1101(a)(43)(B) (2012) (“The term ‘aggravated felony’ [includes]

  illicit trafficking in a controlled substance.”). As such, the

  conviction not only subjected defendant to mandatory deportation

  (preceded by an immigration detainer) but also precluded the

  opportunity for him to defend against his removal through an

  immigration proceeding. See 8 U.S.C. § 1229b(a)(3) (2012). A

  lawful permanent resident may ordinarily offer a defense to

  deportation through a proceeding known as “cancellation of

  removal.” Id. This proceeding, however, is not available where the

  defendant is convicted, as here, of an “aggravated felony.” Id.

¶ 19   Yet plea counsel advised defendant that remaining in this

  country would still be possible even after his guilty plea. Because

  counsel’s advice ran counter to succinct, clear, and explicit


                                     9
  requirements of immigration law, counsel’s advice was deficient.

  See Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010); see also

  United States v. Rodriguez-Vega, 797 F.3d 781, 785-88 (9th Cir.

  2015) (holding that, where deportation is virtually certain as a

  consequence of the guilty plea, advising the defendant of the mere

  potential for deportation is deficient performance); Hernandez v.

  United States, 778 F.3d 1230, 1233-34 (11th Cir. 2015) (same). We

  move, therefore, to the second Strickland prong — prejudice from

  the deficient performance.

                               2.   Prejudice

¶ 20   In the context of a guilty plea, the prejudice prong requires the

  defendant to “show that there is a reasonable probability that, but

  for counsel’s errors, he would not have pleaded guilty and would

  have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

  (1985); see also Corson, ¶ 34. “Reasonable probability” means a

  probability sufficient to undermine confidence in the outcome and

  is a standard “somewhat lower” than a preponderance of the

  evidence. Strickland, 466 U.S. at 694; see also Carmichael, 206

  P.3d at 806-07. The standard presents an objective inquiry that

  asks not whether the defendant likely would have been acquitted at


                                    10
  trial but whether counsel’s conduct affected the outcome of the plea

  process. Corson, ¶ 35; People v. Pozo, 746 P.2d 523, 529 n.8 (Colo.

  1987). Some objective evidence must corroborate the defendant’s

  testimony that he would have made a different decision about the

  plea if he had been properly advised. Carmichael, 206 P.3d at 807.

  In the end, the defendant “must convince the court that a decision

  to reject the plea bargain would have been rational under the

  circumstances.” Padilla, 559 U.S. at 372.

¶ 21   Various factors should inform a court’s analysis of whether a

  decision to reject the guilty plea would have been rational. First, a

  court should consider the strength of the prosecution’s case. See,

  e.g., People v. Morones-Quinonez, 2015 COA 161, ¶ 13; State v.

  Tejeiro, 345 P.3d 1074, 1083 (N.M. Ct. App. 2014). Second, the

  attractiveness of the plea deal and the risks of going to trial should

  be analyzed. See Carmichael, 206 P.3d at 806 (recognizing that the

  comparative sentencing exposure between standing trial and

  accepting a plea offer may be important to the decision whether to

  plead guilty).

¶ 22   Third — in the case of a noncitizen defendant who wishes to

  remain in the United States — a court must take into account the


                                    11
  defendant’s ties to this country as judged against the defendant’s

  ties to another country. See Morones-Quinonez, ¶ 13; People v.

  Kazadi, 284 P.3d 70, 74 (Colo. App. 2011), aff’d, 2012 CO 73; see

  also Lee v. United States, 825 F.3d 311, 316 (6th Cir.), cert. granted

  580 U.S. __, 137 S. Ct. 614 (2016); DeBartolo v. United States, 790

  F.3d 775, 779-80 (7th Cir. 2015); United States v. Orocio, 645 F.3d

  630, 644-45 (3d Cir. 2011), abrogated on other grounds by Chaidez

  v. United States, 568 U.S. ___, 133 S. Ct. 1103 (2013); Sasonov v.

  United States, 575 F. Supp. 2d 626, 636-38 (D. N.J. 2008); Sial v.

  State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2012); Padilla v.

  Commonwealth, 381 S.W.3d 322, 329-30 (Ky. Ct. App. 2013);

  People v. Picca, 947 N.Y.S.2d 120, 129-31 (N.Y. App. Div. 2012);

  State v. Sandoval, 249 P.3d 1015, 1021-22 (Wash. 2011); cf.

  Padilla, 559 U.S. at 368 (recognizing that preserving a noncitizen’s

  right to remain in this country may be more important than any

  potential jail sentence).

               a.    The Postconviction Court’s Reasoning

¶ 23   We address initially the postconviction court’s view that

  defendant was not entitled to relief “even if [he] had established

  both prongs of the Strickland test” because he was properly advised


                                    12
  by the written Rule 11 advisement. We disagree because, where a

  defendant meets the two-prong test set forth in Strickland, the

  defendant succeeds on a claim of ineffective assistance of counsel

  and must be allowed to withdraw his plea. See, e.g., Carmichael,

  206 P.3d at 807; Pozo, 746 P.2d at 527 n.5.

¶ 24   The postconviction court believed that People v. DiGuglielmo,

  33 P.3d 1248 (Colo. App. 2001), dictates a different result. But the

  DiGuglielmo division recognized that Strickland governed the

  defendant’s claim that his plea counsel had provided ineffective

  assistance by advising him that he would receive a deferred

  judgment (he was later sentenced to probation instead). Id. at

  1251. The division concluded that “because both the written Crim.

  P. 11 advisement form and the trial court at the providency hearing

  specifically addressed the issue of a deferred judgment,” and the

  defendant did not ask clarifying questions, he could not succeed on

  his ineffective assistance claim. Id.

¶ 25   As we understand the case, the DiGuglielmo division decided

  that the defendant could not show prejudice from his counsel’s

  advice because the plea court had correctly advised him of the

  specific plea consequence that his counsel had allegedly failed to


                                    13
  mention. See also United States v. Kayode, 777 F.3d 719, 728-29

  (5th Cir. 2014) (recognizing that, while judicial admonishments

  during a plea colloquy have no bearing on the first Strickland prong,

  they may be relevant under the second prong to assess prejudice).

  In other words, the defendant could not show prejudice because he

  actually knew of the true consequences of his plea.

¶ 26   Those are not the facts of this case. Although the written

  Rule 11 advisement mentioned deportation as a consequence of the

  guilty plea, the plea court did not. (Nor did the court recognize on

  the record that defendant was not a citizen.) Indeed, the

  DiGuglielmo division distinguished its decision from another case on

  that very basis. See 33 P.3d at 1252 (“Rael is distinguishable

  because there is no indication in that opinion whether the trial

  court had advised the defendant there about the issue that was the

  focus of his claim of misrepresentation.”). Furthermore, the

  supreme court’s subsequent Carmichael decision illustrates that “a

  proper advisement by the district court does not preclude, as a

  matter of law, a finding of prejudice based on counsel’s specific,

  erroneous advice.” Morones-Quinonez, ¶ 21 (discussing Carmichael,

  206 P.3d at 807-09). This principle is “particularly apt in the


                                    14
  immigration context, where a general advisement about the

  possibility of adverse immigration consequences may not be

  sufficient to dispel a specific promise or misrepresentation by

  counsel.” Id. at ¶ 22; State v. Favela, 311 P.3d 1213, 1222 (N.M.

  Ct. App. 2013) (recognizing that even a court’s unequivocal warning

  may be insufficient to cure prejudice from counsel’s deficient

  performance because that warning alone does not ensure that the

  defendant received effective assistance in evaluating such an

  advisement). And defendant here “does not contend that []he had

  questions or concerns, or that []he was confused at the providency

  hearing, based on irreconcilable advisements from [his] counsel and

  the court, which is the situation addressed in DiGuglielmo.”

  Morones-Quinonez, ¶ 24. Instead, he contends that he relied on his

  counsel’s specific, erroneous advice when he pleaded guilty. Id.

¶ 27   Finally, unlike in DiGuglielmo, the premise of the

  postconviction court’s analysis here was that defendant did not

  know of the automatic deportation consequence of his plea,




                                   15
  regardless of the written advisement.2 Hence, the postconviction

  court focused on what he would have done if he had known.

¶ 28   The postconviction court also cited People v. Chavez, 7 P.3d

  1047 (Colo. App. 1999), to support its view that defendant could not

  obtain relief even if he satisfied both prongs of Strickland. Because

  Chavez does not concern an ineffective assistance of counsel claim,

  however, it sheds no light here. Consistent with our conclusion

  that Chavez and DiGuglielmo are inapposite, the People do not rely

  on those cases (or the written Rule 11 advisement) on appeal.



  2 The dissent takes a different view, concluding that defendant
  actually knew of the true consequences of his plea. The dissent
  cites defendant’s prior criminal acts. Because those prior acts did
  not result in immigration consequences, however, they could not
  have made him aware of the immigration consequence of the guilty
  plea here. On the contrary, those earlier experiences gave him
  reason to believe his plea counsel’s erroneous advice that his new
  conviction would not guarantee deportation either. Further, while
  defendant retained an immigration attorney after his plea and
  before his resentencing, neither that attorney nor defendant
  testified that she had advised him of the automatic deportation
  consequence of his plea before the resentencing hearing. And the
  record shows that both his plea counsel and the sentencing court
  (on whom defendant could be expected to rely) seemed to believe
  that avoiding deportation was still possible. It is not surprising,
  therefore, that he did not move to withdraw his plea before or at the
  resentencing hearing. Regardless, the relevant question is what
  defendant knew at the time of his plea, not at the resentencing
  hearing.

                                    16
¶ 29   We turn therefore to the postconviction court’s discussion of

  what defendant would have done if he had known of the automatic

  deportation consequence of his guilty plea. Defendant claimed that

  he would have rejected the plea deal and gone to trial if he had been

  properly advised. The postconviction court deemed his contention

  “not to be credible.” Although framed as a credibility finding, the

  court’s conclusion mirrors the ultimate determination of whether

  defendant showed Strickland prejudice in the guilty-plea context.

  As explained, such a determination is a legal conclusion that we

  review de novo. See Carmichael, 206 P.3d at 807; Brown, 250 P.3d

  at 681; see also Chhabra v. United States, 720 F.3d 395, 406 (2d

  Cir. 2013) (“The district court’s findings as to basic, primary, or

  historical fact are subject to the clearly erroneous standard of

  review; the court’s ultimate rulings as to Strickland’s components,

  and its ultimate decision as to whether counsel’s performance

  violated the defendant’s Sixth Amendment rights, are reviewed de

  novo.”) (citations omitted).

¶ 30   Of course, where a district court’s prejudice determination

  depends heavily on the court’s credibility findings or its resolution

  of factual disputes, we would give the court’s findings substantial


                                    17
  deference. Here, however, the postconviction court did not base its

  denial of defendant’s claim on conflicting testimony, defendant’s

  demeanor, a reputation for mendacity, or any other traditional

  credibility factor. On the contrary, the court credited defendant’s

  testimony as to the historical facts — e.g., what he told his plea

  counsel (he wanted to avoid deportation if possible) and what

  counsel told him (deportation was not automatic under the plea

  deal). In denying defendant’s prejudice claim nonetheless, the court

  relied entirely on its view that rejecting the plea would not have

  been rational even accepting defendant’s account of the facts.

  Because this conclusion is intertwined with the ultimate question of

  prejudice, we naturally review it de novo.

¶ 31   The postconviction court concluded that defendant’s rejecting

  the plea agreement and going to trial would not have been a

  rational decision because acquittal at trial was very unlikely given

  the recordings of the alleged drug transaction, his failure to identify

  a viable defense, and the prosecution’s refusal to offer an

  immigrant-friendly plea deal. The court thus assumed that

  defendant would be convicted and deported in any event and,

  therefore, he faced only a decision between two to eight years in


                                    18
  prison (under the plea deal) and four to sixteen years in prison (if

  convicted at trial).3

¶ 32   The postconviction court weighed some of the factors relevant

  to the prejudice inquiry. But the court’s analysis did not go far

  enough.

¶ 33   Neither the strength of the prosecution’s case nor the

  difference in the sentencing ranges between the plea deal and a

  conviction at trial are necessarily dispositive when a defendant

  faces immigration consequences. Morones-Quinonez, ¶ 13; see

  Orocio, 645 F.3d at 643 (noting that likely acquittal at trial is not

  the “sine qua non of prejudice”). As explained, a court must

  consider all relevant factors — especially the defendant’s ties to the

  United States and the resulting severity of deportation — before

  reaching a conclusion about prejudice. See Morones-Quinonez,

  ¶ 13; see also Lee, 825 F.3d at 316 (“[A] claimant’s ties to the

  United States should be taken into account in evaluating, alongside

  the legal merits, whether counsel’s bad advice caused prejudice.”);

  Gonzalez v. United States, 722 F.3d 118, 132 (2d Cir. 2013) (“[T]he

  3The record does not reveal, however, whether defendant was
  advised of the sentences he faced if convicted of the original charges
  at trial.

                                     19
  court should, before reaching a conclusion as to prejudice, take into

  account all relevant factors.”). Although “the strength of the State’s

  case may be considered as part of a larger analysis of prejudice,”

  the postconviction court’s “almost exclusive reliance on the strength

  of the State’s case and the benefits of the plea was improper[.]”

  Tejeiro, 345 P.3d at 1083.

¶ 34   We thus discern error in the postconviction court’s legal

  analysis, and we now consider defendant’s claim in light of all

  relevant factors.

                      b.   Balancing All Relevant Factors

¶ 35   We first take heed of the Colorado Supreme Court’s

  recognition that “when an alien defendant enters a guilty plea based

  on erroneous representations as to deportation consequences, he or

  she will in most cases be permitted to withdraw the plea.” Pozo,

  746 P.2d at 527 n.5. We also recognize that, in compliance with

  Carmichael, defendant here presented some objective corroborating

  evidence of his prejudice claim (e.g., his plea counsel’s testimony

  confirming defendant’s concerns about deportation and her

  erroneous advice about deportation). See 206 P.3d at 807; see also

  Hernandez, 778 F.3d at 1233-34 (recognizing that plea counsel’s


                                      20
  statement corroborated defendant’s allegations of ineffective

  assistance).

¶ 36   Next, we agree with the postconviction court that the

  prosecution’s case against defendant appeared to be strong. How

  strong, however, is not clear. The confidential informant who

  allegedly bought the drugs from defendant did not testify at the

  postconviction hearing. Nor did any other prosecution witness

  testify. Although the record indicates that audio and video

  recordings of the alleged sale exist, neither recording was admitted

  into evidence or described in detail through the testimony at the

  postconviction hearing.4 Hence, the admitted evidence does not

  reveal precisely how incriminating (or ambiguous) the recordings

  may be. Other documents in the record briefly describe the

  recordings, but they were not admitted into evidence at the hearing

  either. Even if we may consider such documents, they suggest that,

  4 Defendant’s plea counsel testified that, according to her memory,
  the recordings captured the incident and persuaded her that this
  case would be difficult to defend. She did not, however, provide any
  details of what the recordings depicted. And, although defendant
  initially agreed with the postconviction court’s statement that the
  recordings showed him committing the crime, he later clarified that
  his belief was based solely on what others had told him about the
  recordings. He had never seen them. Beyond this brief exchange,
  he did not admit his guilt.

                                   21
  while the audio recording contains some statements implicating

  defendant, the video recording does not actually depict a drug sale.

¶ 37   Because we recognize, however, that the prosecution did not

  bear the burden of proof at the hearing, we accept for our analysis

  that the prosecution’s case was formidable. But we cannot

  conclude on this record that a conviction would have been “the sure

  thing that the government claims.” DeBartolo, 790 F.3d at 779.5

  Moreover, while the apparent existence of a likely trial defense may

  strengthen a defendant’s prejudice showing, establishing such a

  defense is not absolutely required in cases involving counsel’s

  failure to accurately advise the defendant of the immigration

  consequences of a guilty plea. People v. Deltoro, 31 N.E.3d 389, 394

  (Ill. App. Ct. 2015); see Zemene v. Clarke, 768 S.E.2d 684, 691 (Va.

  2015) (holding that, in advancing a claim of prejudice due to

  defense counsel’s failure to advise of the immigration consequences


  5 Defendant’s plea counsel admitted that she did little to investigate
  possible defenses at trial. She did not, for instance, seek to learn
  the identity of the confidential informant. Cf. People v. McKeel, 246
  P.3d 638, 642 (Colo. 2010) (recognizing that work as a confidential
  informant and prior drug use are among the “potentially unsavory
  details” about a witness that a jury may be entitled to hear). These
  circumstances further complicate the analysis of the strength of the
  prosecution’s case.

                                    22
  when entering a plea agreement, the defendant “need not

  demonstrate a likelihood of acquittal at trial”). In sum, the strength

  of the evidence against defendant is not as probative of rationality

  as it would be in a nonimmigration case. Morones-Quinonez, ¶ 15.

¶ 38   Turning to the attractiveness of the plea deal, we first observe

  that the deal did not give defendant what he repeatedly said he

  wanted — a chance to stay in this country. Instead, the guilty plea

  guaranteed his automatic deportation. Thus, although the evidence

  against defendant was compelling, “[t]he threat of removal

  provide[d] [a] powerful incentive to go to trial [where] a plea would

  result in removal anyway.” Id. at ¶ 13 (quoting Orocio, 645 F.3d at

  645); see Keserovic v. State, 345 P.3d 1024, 1030 (Idaho Ct. App.

  2015) (Given the defendant’s “asserted desire to avoid deportation”

  and the virtual certainty of deportation if he pleaded guilty, “it may

  well have been in [his] better interests to take his chances at trial”

  even “accepting as true the State’s assertion that the evidence of

  [his] guilt was overwhelming.”); see also Sasonov, 575 F. Supp. 2d

  at 637; United States v. Purpura, No. 1:CR-94-171-01, 2012 WL

  716149, at *2-3 (M.D. Pa. Mar. 5, 2012) (unpublished opinion);




                                     23
  Padilla, 381 S.W.3d at 329; Picca, 947 N.Y.S.2d at 130-31;

  Sandoval, 249 P.3d at 1022.

¶ 39    Moreover, the downside of going to trial was not immense,

  which is to say that the upside of the plea deal was hardly

  irresistible even assuming defendant probably would have been

  convicted at trial. True, the plea deal offered a more favorable

  sentencing range, two to eight years in prison versus four to sixteen

  years if he were convicted at trial. But this difference is modest

  when compared to the large disparities analyzed in other cases.

  See, e.g., Orocio, 645 F.3d at 634 (comparing a plea deal offering

  credit for time served and two years of supervised release with a

  trial conviction carrying a minimum ten-year prison sentence);

  Sandoval, 249 P.3d at 1021-22 (considering a plea deal of 6 to 12

  months as opposed to a trial conviction carrying a minimum

  sentence of 6½ to 8½ years and a maximum of life in prison); cf.

  Carmichael, 206 P.3d at 807 (considering the “large disparity

  between the sentence exposure as represented to Carmichael by

  [defense counsel] and the actual exposure Carmichael faced by

  going to trial”).




                                    24
¶ 40   In addition, mitigating factors (such as the absence of prior

  felonies and his serious health problems) could lead defendant to

  reasonably believe that a sentence at the higher end of the

  sentencing range and consecutive sentences were not likely if he

  went to trial. (Recall that defendant originally received a Comcor

  sentence and then a lower-range prison sentence after he pleaded

  guilty.) In fact, the postconviction court — which had also been the

  sentencing court — never mentioned consecutive sentences as a

  realistic possibility at trial, nor did the prosecutor. Because

  consecutive sentences were not mandatory, and because the

  sentencing ranges overlapped, defendant could possibly have

  received the same sentence after conviction at trial as he would

  have received after pleading guilty.

¶ 41   In any event, preserving the right to stay in the United States

  “may be more important to the [defendant] than any potential jail

  sentence.” Padilla, 559 U.S. at 368. This is especially true where,

  as here, the defendant is a lawful permanent resident facing

  permanent banishment from a country he has lived in since he was

  a toddler. See Orocio, 645 F.3d at 645 (“[Defendant] rationally

  could have been more concerned about a near-certainty of multiple


                                    25
  decades of banishment from the United States than the possibility

  of a single decade in prison.”). In addition, unrebutted evidence at

  the postconviction hearing revealed that defendant’s serious health

  problems (which require daily insulin treatment) might make a

  longer prison sentence, where some medical treatment would likely

  be available, preferable to earlier deportation to a place where his

  ability to secure treatment is uncertain. Cf. DeBartolo, 790 F.3d at

  779-80 (The defendant “might even have preferred a lengthy prison

  term in the United States to a shorter prison term that would lead

  more quickly to deportation, because the lengthy prison term would

  at least keep him in the same country as his family, facilitating

  frequent visits by family members, which is important to

  prisoners.”).

¶ 42   Finally, the unrebutted evidence established defendant’s tight

  connection to the United States. He has lived here for over forty

  years, virtually his entire life. Defendant’s family, including his

  children and ailing mother, live here too. He has no apparent ties

  to Mexico. Therefore, removal from the United States would be “the

  equivalent of banishment or exile” from his family and long-time




                                    26
  home. Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947);

  Sandoval, 249 P.3d at 1022.

¶ 43   With all this in mind, we must decide not “whether a decision

  to reject a plea of guilty was the best choice, but only whether it

  [was] a rational one.” Picca, 947 N.Y.S.2d at 130 (discussing Padilla

  standard). For the reasons discussed above, we conclude that

  rejecting the guilty plea offer and going to trial would have been a

  rational decision for defendant here. Id. (recognizing that the

  relevant question is whether taking “a chance, however slim, of

  being acquitted after trial would have been rational”); see People v.

  Chavez-Torres, 2016 COA 169M, ¶ 32 (“Chavez-Torres alleged in his

  postconviction motion that rejecting the plea offer would have been

  rational under the circumstances because his entire immediate

  family lived in the United States and he had no family in, or

  connections to, Mexico. These unrebutted allegations sufficiently

  assert Strickland prejudice.”).

¶ 44   Although the People rely on People v. Campos-Corona, 2013

  COA 23, the facts of that case were quite different. There, the

  district court found that the defendant had desired only to avoid

  prison time under the plea agreement, not to avoid deportation. Id.


                                    27
  at ¶ 15. Because his plea “advanced that goal,” the court found

  that he would not have changed his plea even if he had known he

  would be deported. Id. In contrast, the postconviction court here

  recognized that securing a chance to stay in this country was

  important to defendant. And, to the extent a chance to receive a

  Comcor sentence was also important to him, the guilty plea did not

  advance that goal either. Contrary to his counsel’s advice, his plea

  subjected him to an immigration detainer that caused Comcor to

  reject him and resulted in his resentencing to prison.

¶ 45   Because defendant has established a reasonable probability

  that his plea counsel’s deficient performance affected the outcome

  of the plea process, he must be allowed to withdraw his guilty plea.

  See Hill, 474 U.S. at 59; Pozo, 746 P.2d at 529 n.8.

             III.    Conclusion and Remand Directions

¶ 46   We reverse the order denying defendant relief under Crim. P.

  35(c), and we remand to the district court with directions to grant

  defendant’s petition. In conjunction with that relief, the court shall

  vacate defendant’s conviction, permit him to withdraw his guilty

  plea, and reinstate the original charges against him.

       JUDGE TAUBMAN concurs.


                                    28
JUDGE GRAHAM dissents.




                         29
       JUDGE GRAHAM, dissenting.

¶ 47   In my view, the majority opinion has misapplied and expanded

  the prejudice test announced in Strickland v. Washington, 466 U.S.

  668, 687 (1984), and applied in Dunlap v. People, 173 P.3d 1054,

  1062-63 (Colo. 2007). I also disagree that the record before us

  shows prejudice to defendant as a result of his counsel’s warning to

  him that his guilty plea would create the risk, but not the certainty,

  of deportation.

¶ 48   I agree that effective counsel “must advise her client regarding

  the risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 367

  (2010). I also agree that where counsel provides “false assurance

  that his conviction would not result in his removal from this

  country,” the defendant has been given ineffective assistance. Id. at

  368. That is not what happened here.

¶ 49   Defendant’s counsel told him that the prosecutor was

  intractable in her position that defendant would not be offered a

  plea that was “immigration safe.” She warned him that there was

  “a likelihood of deportation, although not a certainty.” The risk of

  deportation was explained to defendant. Padilla made clear that

  “[t]o satisfy [counsel’s] responsibility, we now hold that counsel


                                    30
  must inform her client whether his plea carries a risk of

  deportation.” Id. at 374. Measured against Padilla’s standard, it is

  not certain that counsel’s advice to defendant fell below the wide

  standard of competence demanded by Strickland. But I am willing

  to assume, as the trial court found, that defendant’s counsel gave

  him erroneous advice by telling him there was a chance he could

  avoid deportation.

¶ 50   Where I part company with the majority is in the evaluation of

  prejudice to defendant. The record demonstrates to me that

  defendant knew the true potential consequences of his plea, not, as

  the majority supposes, because of his past criminal record, but

  because his counsel advised him that there was no assurance he

  would not be deported. And, importantly, he acknowledged in

  writing that he would be deported if he pleaded guilty to a felony.

¶ 51   Defendant is an admitted heroin dealer who is no stranger to

  the criminal justice system. He has committed numerous prior

  criminal acts and has failed to appear in court when charged.

  Against this background, in August, 2011, a confidential informant

  advised the Denver Police Department Gang Bureau that defendant

  was attempting to sell heroin. Surveillance by the police, including


                                    31
  electronic video and audio equipment, observed and heard

  defendant attempting to sell and selling heroin. This evidence was

  detailed in an arrest affidavit and made available to counsel in

  discovery.

¶ 52   In April, 2012, defendant entered a plea of guilty to a felony

  distribution charge in exchange for the prosecutor dropping a

  charge of conspiracy and a charge of distribution. Those charges

  carry potential penalties far more severe than the felony

  distribution charge to which defendant pleaded guilty. Before the

  trial court would accept the plea, as part of his Crim. P. 11

  advisement, defendant read and executed a petition to enter plea of

  guilty and plea agreement which represented to the court that

  defendant could speak, read, and understand the English language,

  or that all of the documents and proceedings had been fully

  explained to him in a language he could understand. He

  represented that he had consulted with his lawyer and that he

  recognized the potential penalty for each offense with which he was

  originally charged carried a maximum penalty of sixteen years. He

  also agreed to the factual basis for his charged crimes. And most

  importantly, he initialed paragraph 14, which represented that he


                                    32
  understood a plea of guilty would “result in my being deported, . . .

  excluded from admission to the United States, and my being

  refused U.S. citizenship.” (Emphasis added.) In presenting that

  petition to the district court, defendant did not seek clarification,

  notwithstanding the court’s inquiry, “Is there anything more that

  you want me to know or anything more you want me to

  consider . . . ?” Defendant was then sentenced to Community

  Corrections.

¶ 53   Soon after that plea, Immigration and Customs Enforcement

  placed a hold on defendant which resulted in his disqualification

  from Community Corrections. Defendant very quickly retained

  immigration counsel, but did not seek to withdraw his plea. See

  People v. Pozo, 746 P.2d 523, 527 (Colo. 1987) (where erroneous

  advice is given to an immigrant subject to deportation, he will likely

  be able to withdraw his plea).

¶ 54   This factual backdrop leads me to conclude that defendant

  cannot show that, but for his counsel’s advice, he would not have

  known the true consequences of his plea. People v. DiGuglielmo, 33

  P.3d 1248 (Colo. App. 2001), is instructive. There, the defendant,

  who was sentenced to probation, argued that his plea of guilty was


                                     33
  not knowing and voluntary because he was led to believe that he

  would receive a deferred sentence. The division recognized that

  counsel’s promise of a sentence to be imposed might indeed

  constitute ineffective assistance of counsel. But, where the

  defendant had received a written Crim. P. 11 advisement form that

  specifically addressed the sentence, he could not claim

  misrepresentation as a ground for ineffective assistance. Id. at

  1251. “At the providency hearing, defendant had an affirmative

  obligation to request clarification from the court if his

  understanding of the plea agreement was different from the

  information contained in the written plea documents and the trial

  court’s colloquy with him.” Id.

¶ 55   The majority distinguishes DiGuglielmo by noting that the trial

  court specifically addressed the sentence in addition to the written

  Rule 11 advisement. I am aware of no case that requires a verbal

  explanation of a written Rule 11 advisement. A written advisement

  alone is a sufficient basis for requiring a defendant to seek

  clarification. This is particularly apparent where, like here, counsel

  advised defendant of the risk. If defendant was laboring under a

  belief that his length of stay in the United States would be favorably


                                     34
  considered by the immigration authorities, that belief was certainly

  disabused by the written document he read and signed. And too,

  like in DiGuglielmo, the defendant never alleged “that his counsel’s

  misrepresentation was deliberate.” Id. at 1252.

¶ 56   The majority claims that People v. Rael, 681 P.2d 530 (Colo.

  App. 1984), was distinguished by DiGuglielmo in such a way as to

  add emphasis to the importance of the court’s verbal explanation

  during the Rule 11 advisement. I can find nothing in Rael to

  support that assumption. Rael relied upon the fact that counsel

  had stated that he “knew that the court would not

  aggravate/increase the maximum sentence.” 681 P.2d at 532.

  There was no need to address the prejudice prong of Strickland in

  Rael because the division in Rael ordered a hearing on the basis of

  a deliberate misrepresentation. Here there was no deliberate

  misrepresentation and any confusion caused by counsel’s

  statements of hope were unquestionably clarified by a written

  advisement to defendant that his plea would result in his

  deportation. Nor am I persuaded by the conclusion in People v.

  Chavez-Torres, 2016 COA 169M, that the defendant in that case

  was entitled to a hearing (as was the defendant here) when he


                                   35
  alleged sufficient excusable neglect to warrant a late filing of a

  postconviction motion by asserting that he had received erroneous

  immigration advice.

¶ 57   This case bears no resemblance to Chavez-Torres. Defendant

  here received an accurate Rule 11 advisement that he would be

  deported. Yet he did not seek to clarify that advice. It is unrealistic

  to conclude that a noncitizen who was concerned enough about his

  immigration status to question whether his plea would result in

  deportation but did not seek to clarify a proper Rule 11 advisement

  telling him that deportation was a certainty has shown the kind of

  material prejudice sufficient and grave enough to undermine the

  confidence in his plea. None of the cases cited by the majority

  stands for the proposition that a proper written advisement

  acknowledged and signed by a defendant should be disregarded

  simply because the defendant is a noncitizen. Where a defendant

  who is fluent in English, as is the case here, tells the judge that he

  understands the matters set forth in the written Rule 11

  advisement that he has personally signed, it makes little sense for

  the sentencing judge to verbally go over each detail in the

  advisement. See People v. Laurson, 70 P.3d 564, 566 (Colo. App.


                                     36
  2002) (“When a defendant indicates at the providency hearing that

  he or she understood the matters contained in a written guilty plea

  advisement form, the burden of proof is on the defendant to show

  that the apparent waiver was not effective.”).

¶ 58   There are further reasons for concluding that defendant has

  not shown prejudice. The majority reasons that it would have been

  preferable for defendant to receive a long prison sentence than to be

  deported. I disagree that any defendant, immigrant or otherwise,

  would prefer the prospect of two consecutive sixteen-year sentences

  to a four- or five-year sentence. Defendant was forty-one years of

  age at the time of his sentencing. His purported preference for

  potential consecutive sentences of up to thirty-two years at the age

  of forty-one to the sentence he received (even with deportation) is

  not credible. It is true that he had medical issues resulting from

  his abuse of drugs and alcohol. He has sclerosis of the liver. He is

  diabetic and so he must take insulin. Nothing in the record

  suggests that he cannot receive medication or treatment for these

  maladies outside the United States and that it would have been a

  preferable choice to draw a lengthy prison term just so he could




                                    37
  have the services of a prison doctor. He was certainly coping

  physically before he decided to sell heroin.

¶ 59   The majority opinion seeks to weigh factors it finds relevant to

  a showing of prejudice, relying on what it deems to be the

  persuasive authority of cases in foreign jurisdictions. I am

  unwilling to rely on that authority. My conclusion is reached

  recognizing that no Colorado case gives such an expansive

  treatment of Strickland’s prejudice prong.

¶ 60   Defendant has admitted his guilt. The documentary evidence

  which forms the basis for his arrest warrant shows that a finding of

  guilt on the original charges is all but assured. His physical

  conditions are treatable in Mexico and elsewhere; he does not deny

  otherwise. He is not terminally ill. Admittedly, his ties to this

  country are strong and he has family members here. One would

  expect nothing else in the case of a long-term resident. However, I

  am unaware of any Colorado case that requires an exception to

  deportation on the basis of close ties to Colorado. He is not a

  United States citizen and, based upon his felony charge, it is

  unlikely that he will ever become one, even after remand.




                                    38
¶ 61   Consequently, I am left to conclude that the district court was

  correct in deciding, after an evidentiary hearing, that defendant

  failed to satisfy the prejudice prong of Strickland. I would affirm.




                                    39
