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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                          NO. 31,513

 5 ROSA MARIA RAMIREZ PASILLAS,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 The Thompson Firm
13 Roderick Thompson
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 KENNEDY, Judge.
 1        Rosa Maria Ramirez Pasillas (Defendant) appeals the district court’s dismissal

 2 of her Rule 1-060 NMRA petition for relief. We reverse and remand for further

 3 proceedings.

 4        Defendant is a Mexican National who had been legally residing in the United

 5 States since she was a small child. [RP 88 ¶¶ 2-3] In 1998, she pleaded guilty to child

 6 abuse (a third-degree felony) and abuse of aerosol spray.          Defendant was given

 7 a suspended sentence and a period of unsupervised probation. [RP 84, 107 ¶ 4] Her

 8 guilty plea subjected her to deportation, a fact she claims she was not advised of

 9 before entering the plea. [RP 90 ¶¶ 15-18]

10        On March 28, 2011, nearly thirteen years after the convictions and having

11 completed her sentence of unsupervised probation, Defendant filed a petition for relief

12 pursuant to Rule 1-060, asking to withdraw her guilty plea. [RP 65-76; RP 107 ¶ 4]

13 She attached an affidavit, stating that her counsel at the time had not advised her of

14 the specific immigration consequences of pleading guilty to the felony of child abuse.

15 [RP 88-91] The district court denied the petition without an evidentiary hearing,

16 stating that it had examined the file and listened to the tapes of the separate plea and

17 sentencing hearings. [RP 101-04]

18        Ordinarily, “[a] motion to withdraw a guilty plea is addressed to the sound

19 discretion of the trial court, and we review the trial court’s denial of such a motion



                                              2
 1 only for abuse of discretion.” State v. Garcia, 1996-NMSC-013, 121 N.M. 544, 546,

 2 915 P.2d 300, 302. The district court abuses its discretion in denying a motion to

 3 withdraw a guilty plea “when the undisputed facts establish that the plea was not

 4 knowingly and voluntarily given.” Id. As discussed below, Defendant argues that her

 5 plea was not knowingly and voluntarily given because she did not receive proper

 6 advice from her counsel. We review claims of ineffective assistance of counsel de

 7 novo. Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993).

 8        Rule 1-060(B)(4) provides that “[o]n motion and upon such terms as are just,

 9 the court may relieve a party or his legal representative from a final judgment, order[,]

10 or proceeding for the following reason[]: . . . the judgment is void[.]” This Court has

11 previously recognized that Rule 1-060(B)(4) is a proper method for collaterally

12 attacking a conviction alleged to be void where a defendant has already served the

13 sentence. State v. Tran, 2009-NMCA-010, ¶¶ 16-18, 145 N.M. 487, 200 P.3d 537.

14 In Tran, as in the present case, the defendant alleged that his counsel’s failure to

15 properly advise him of the specific immigration consequences of his plea was

16 ineffective assistance of counsel under State v. Paredez, 2004-NMSC-036, 136 N.M.

17 533, 101 P.3d 799. There, our Supreme Court held:

18        If a client is a non-citizen, the attorney must advise that client of the
19        specific immigration consequences of pleading guilty, including whether
20        deportation would be virtually certain. . . . An attorney’s failure to
21        provide the required advice regarding immigration consequences will be

                                               3
 1        ineffective assistance of counsel if the defendant suffers prejudice by the
 2        attorney’s omission.

 3 Id. ¶ 19. “Where a defendant enters a plea upon advice of counsel, the voluntariness

 4 of the plea depends on whether counsel’s advice was within the range of competence

 5 demanded of attorneys in criminal cases.” State v. Carlos, 2006-NMCA-141, ¶ 10,

 6 140 N.M. 688, 147 P.3d 897 (internal quotation marks and citation omitted). “To

 7 establish that [s]he was denied the effective assistance of counsel, [the d]efendant had

 8 the burden to show: (1) that the attorney’s advice about the consequences of [her]

 9 pleas was below an objective standard of reasonableness; and (2) that were it not for

10 [her] attorney’s advice, [she] would not have made the pleas.” Tran, 2009-NMCA-

11 010, ¶ 20.

12        Defendant’s affidavit filed with her Rule 1-060 petition states:

13        15.    At no time did [my public defender] ever tell me that a guilty plea
14               would affect my residency status and make me deportable.

15        16.    [My public defender] never talked to me about any alternative
16               dispositions that would preserve my immigration status.

17        17.    I first learned that I would be deported at my sentencing on May
18               1, 1998[,]1 when there was a discussion between the lawyers, the
19               judge, and an immigration agent about a child abuse conviction
20               triggering deportability. When he sentenced me, the judge told
21               me that I would be released from jail to immigration custody for
22               deportation.



          1
25         The correct date of the hearing appears to be April 30, 1998. [See RP 84]

                                              4
 1        18.    I never would have [pleaded] guilty to child abuse had I known
 2               that I would be deported based upon that conviction. . . . Had [my
 3               public defender] correctly and adequately informed me of the
 4               consequences of a child abuse conviction, I would have insisted
 5               that she attempt to negotiate a different plea, or failing that, I
 6               would have insisted on going to trial.

 7 [RP 90 ¶¶ 15-18]

 8        This affidavit is consistent with the district court’s findings, which do not

 9 include an assertion that Defendant received information on the specific immigration

10 consequences of her plea before entering it, stating: “[D]efendant entered her guilty

11 pleas pursuant to a written plea and disposition agreement, accepted by the [c]ourt and

12 filed on January 27, 1998. The written plea and disposition agreement was signed by

13 [D]efendant and contained a warning that the conviction might affect her immigration

14 or naturalization status.” (Emphasis added.) [RP 102 ¶ 10] The district court also

15 found:

16        6.     This [c]ourt informed [D]efendant in open [c]ourt at the
17               sentencing hearing of April 30, 1998 but prior to pronouncing
18               sentence that she would be released from jail directly into the
19               custody of the then-U.S. Immigration and Naturalization Service
20               for deportation.

21        7.     [D]efendant personally addressed the [c]ourt prior to receiving her
22               sentence and expressed her anger and frustration at the certainty
23               that she would be deported.

24 [RP 102 ¶ 6-7] The sequence of events in Defendant’s case does not satisfy Paredez,

25 which requires that “the attorney must advise [the] client of the specific immigration

                                              5
 1 consequences of pleading guilty, including whether deportation would be virtually

 2 certain.” Tran, 2009-NMCA-010, ¶ 21 (internal quotation marks and citation

 3 omitted). We thus will not speculate on whether Defendant should have attempted to

 4 withdraw her plea in the interval at the sentencing hearing between learning of the

 5 certainty of deportation and the actual pronouncement of her sentence, but we observe

 6 that she apparently did not receive any advice from counsel on that possibility at that

 7 time.

 8         Paredez was decided in 2004, while the relevant events in the present case took

 9 place in 1998. Thus, the question of retroactive application arises. As discussed

10 above, the burden is on Defendant to show both “(1) that the attorney’s advice about

11 the consequences of [her] pleas was below an objective standard of reasonableness;

12 and (2) that were it not for [her] attorney’s advice, [she] would not have made the

13 pleas.” Tran, 2009-NMCA-010, ¶ 20. The district court in the present case concluded

14 that the advice Defendant received was not below an objective standard of

15 reasonableness. Thus, the district court did not reach the question of whether Paredez

16 should be applied retroactively.         In our recent case, State v. Ramirez,

17 2012-NMCA-057, ___ N.M. ___, 278 P.3d 569, cert. granted, ___-NMCERT-___,

18 ___ N.M. ___, ___ P.3d ___ (No. 33,604, June 5, 2012), we held that Paredez was an

19 extension of a previously entrenched duty to provide representation and is thus



                                              6
 1 retroactive. Thus, we conclude that Paredez applies in the present case, and

 2 Defendant’s attorney’s advice fell below an objective standard of reasonableness.

 3        Finally, because the district court concluded that the advice Defendant received

 4 was not below an objective standard of reasonableness, it did not reach the second

 5 factor in the test for ineffective assistance: Whether, were it not for Defendant’s

 6 attorney’s advice, she would not have accepted the pleas. Tran, 2009-NMCA-010,

 7 ¶ 20. Our Supreme Court has previously observed that “[d]eportation can often be the

 8 harshest consequence of a non-citizen criminal defendant’s guilty plea, so that in

 9 many misdemeanor and low-level felony cases he or she is usually much more

10 concerned about immigration consequences than about the term of imprisonment.”

11 Paredez, 2004-NMSC-036, ¶ 18 (alterations, internal quotation marks, and citation

12 omitted). Our Supreme Court has also noted:

13               Because courts are reluctant to rely solely on the self-serving
14        statements of defendants, which are often made after they have been
15        convicted and sentenced, a defendant is generally required to adduce
16        additional evidence to prove that there is a reasonable probability that he
17        or she would have gone to trial.

18 Patterson v. LeMaster, 2001-NMSC-013, ¶ 29, 130 N.M. 179, 21 P.3d 1032. The

19 present case presents both the harsh consequence of deportation in a fairly low-level

20 felony case, and Defendant’s self-serving statements in the form of the affidavit she

21 filed with her Rule 1-060 petition for relief. Given the need to assess these potentially



                                               7
 1 conflicting factors in making the determination of whether Defendant would have

 2 entered the plea agreement, but for her attorney’s inadequate advice, we remand this

 3 case to the district court for a ruling on this issue. See, e.g., Carlos, 2006-NMCA-141,

 4 ¶ 23 (finding ineffective assistance of counsel under Paredez and remanding for

 5 determination of whether the defendant was prejudiced).

 6        For the reasons stated above, we reverse the district court’s finding that

 7 Defendant received adequate advice from her counsel on the immigration

 8 consequences of accepting the plea and remand for a ruling on whether she would

 9 have accepted the plea, but for her attorney’s inadequate advice.

10        IT IS SO ORDERED.



11                                                _______________________________
12                                                RODERICK T. KENNEDY, Judge


13 WE CONCUR:



14 _________________________________
15 MICHAEL D. BUSTAMANTE, Judge



16 _________________________________
17 CYNTHIA A. FRY, Judge



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