Miranda v. State of Vermont, No. 243-7-12 Bncv (Carroll, J., May 15, 2013)

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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Bennington Unit                                                                                        Docket No. 243-7-12


Jose Miranda
Petitioner

v.

The State of Vermont
Respondent


                DECISION ON RENEWED MOTION FOR SUMMARY JUDGMENT

                                                                Background

        Petitioner renews his motion for summary judgment on his claim for post conviction
relief due to ineffective assistance of counsel. Petitioner originally moved for summary judgment
on September 19, 2012. The State opposed summary judgment on October 18, 2012. Among
other things, the State argued Petitioner required expert testimony to prove his claim of
ineffective assistance of counsel. On November 20, 2012, the Court agreed with the State’s
argument and denied Petitioner’s motion for summary judgment because he lacked expert
testimony. On April 3, 2013, Petitioner renewed his motion for summary judgment and
submitted an affidavit by Attorney Bradley Stetler. Attorney Stetler would testify as an expert
that Petitioner received ineffective assistance of counsel. The State has not submitted any
additional material opposing summary judgment.

        First, the Court briefly reviews the facts of this case. Petitioner is a citizen of El Salvador
who is lawfully in the United States under temporary protected status. The State charged
Petitioner with felony trespass and disorderly conduct. Attorney Frederick Bragdon, a Public
Defender, represented Petitioner on the charges. Defense counsel negotiated a plea agreement
with the State and Petitioner pled guilty to misdemeanor trespass and disorderly conduct, which
is also a misdemeanor.

        The current case concerns the advice defense counsel gave to Petitioner about the
immigration consequences of Petitioner’s pleas to two misdemeanors. Petitioner asked defense
counsel about the consequences of a guilty plea to his immigration status. It is unclear if
Petitioner specifically told defense counsel he had temporary protected status. Defense counsel
asked a colleague about the immigration consequences of pleading guilty to two misdemeanors,
but did not inquire about the additional complication of temporary protected status. Defense
counsel then told Petitioner “there should be no immigration consequences to pleading guilty to
the instant charges.” Affidavit of Frederick Bragdon, ¶ 10 (July 11, 2012).
        Defense counsel’s advice was erroneous and Petitioner can no longer have his temporary
protected status renewed under 8 U.S.C. § 1254(a)(2)(B)(i). Petitioner argues he would not have
pled guilty had he known the immigration consequences because the immigration consequences
are more important to him than the risk of a harsher criminal penalty. Defense counsel stated he
believed Petitioner would have had a fair chance of acquittal had he gone to trial.

                                              Standard of Review

        The Court grants summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
V.R.C.P. 56(a). The Court makes all reasonable inferences and resolves all doubts in favor of the
non-moving party. Lamay v. State, 2012 VT 49, ¶ 6, 191 Vt. 635. Nevertheless, the non-moving
party cannot rely solely on the pleadings to rebut credible evidence. Boulton v. CLD Consulting
Eng’rs, Inc., 2003 VT 72, ¶ 5, 175 Vt. 413.

                                                    Discussion

        The first issue in this case is whether defense counsel had a duty to inquire into
Petitioner’s specific immigration status. The U.S. Supreme Court addressed a related question in
Padilla v. Kentucky. 130 S.Ct. 1473 (2010).1 In Padilla, the petitioner pled guilty to transporting
marijuana. Id. at 1477. Before the plea agreement, the petitioner claimed his attorney told him
“he did not have to worry about immigration status since he had been in the country so long.” Id.
at 1478 (internal quotations omitted). Unfortunately for the petitioner, his plea “made his
deportation virtually mandatory.” Id. The Court then reasoned the incorrect advice deprived
petitioner of his Sixth Amendment rights and reversed the trial court’s decision. Id.

        In Padilla, the Court looked to a two-part test to determine if: (1) “counsel’s
representations fell below an objective standard of reasonableness” and (2) “whether there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984));
see also In re Russo, 2010 VT 16, ¶ 16, 187 Vt. 367 (applying the same two-part test in
Vermont); The Court noted defense counsel must give a correct interpretation of the
consequences of a guilty plea where the immigration statute is “succinct, clear, and explicit.” Id.
In a complex area of immigration law, defense counsel must only advise a defendant of the risks
of immigration consequences. Id. The Court found the decision in Padilla clear because the
consequences of pleading to transporting large amounts of marijuana are simple to determine and
the petitioner’s defense counsel gave incorrect information. Id. The Court remanded for a
decision on the second prong—whether the petitioner experienced prejudice. Id. at 1487.

        In this case, Petitioner can satisfy the two-part test. Petitioner’s expert, Attorney Stetler,
stated that defense counsel’s failure to inquire about Petitioner’s specific status fell below the
reasonable standards for the profession. The State has not submitted any evidence to rebut this
testimony, other than questioning Attorney Stetler about how he came to this conclusion at a
deposition. Given Attorney Stetler’s undisputed testimony, the Court finds it is unimportant

1
  Padilla is also available at 559 U.S. 356. The Court cites to 130 S.Ct. 1473 because its copy of the case does not
list page numbers for the United States Reports.

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whether Petitioner actually told defense counsel about his status because defense counsel had a
duty to inquire about Petitioner’s status. The Court accepts Petitioner’s evidence as undisputed
and finds Petitioner met the first prong of the Strickland test.

        Next, the Court considers whether Petitioner was prejudiced by the information. To show
prejudice, Petitioner must “convince the court that a decision to reject the plea bargain would
have been rational under the circumstances.” Id. at 1485; see also Hill v. Lockhart, 474 U.S. 52,
60 (1985) (requiring petitioners to show they would have rejected the plea agreement had they
been correctly informed). The parties do not dispute Petitioner received incorrect advice and will
suffer immigration consequences because of his plea. Petitioner testified he would have pursued
another path had he known of the consequences. The Court also noted that immigration status
can be more important to defendants than criminal penalties. Padilla at 1483; see also I.N.S. v.
St. Cyr, 533 U.S. 289, 533 (2001) (“Preserving the client’s right to remain in the United States
may be more important to the client than any potential jail sentence.”). Additionally, defense
counsel stated there was a reasonable chance Petitioner would have been acquitted at trial. The
Court finds that there is a reasonable probability the outcome would have been different if
Petitioner received correct advice.

        The second issue in this case is whether the Court’s colloquy with Petitioner cured the
prejudice. The State argues the Court’s warning that a guilty plea may have immigration
consequences defeats Petitioner’s claim. The role of the Court’s colloquy has generated a split
between states and scholarly critique. See Danielle M. Lang, Note, Padilla v. Kentucky: The
Effect of Plea Colloquy Warnings on Defendant’s Ability to Bring Successful Padilla Claims,
121 Yale L.J. 944 (2012). The State’s argument conflates two separate rights. See id. at 949–52.
Defendants receive a right to counsel under the Sixth Amendment. See Hill, 474 U.S. at 61
(White, J., concurring). Courts engage in plea colloquies to protect defendants’ Fifth Amendment
rights. See Boykin v. Alabama, 395 U.S. 238, 243 (1969). The different origin of the rights
suggests the Court’s colloquy does not automatically cure prejudice.

       Despite the different origins of the rights, States split on the issue over whether a plea
colloquy cures the prejudice. In Hernandez v. State, the Supreme Court of Florida held “an
equivocal warning from the trial court is less than what is required from counsel and therefore
cannot, by itself, remove prejudice resulting from counsel's deficiency.” Nos. SC11-941, SC11-
1357, 2012 WL 5869660, * 4 (Fla. No. 21, 2012). On the other hand, the Georgia Supreme Court
held: “A trial court's plea colloquy warnings of adverse immigration consequences, especially
where, as here, the defendant affirmatively acknowledges his understanding that he is certain or
almost certain to face deportation, generally shows that the defendant cannot demonstrate
prejudice or that any prejudice was cured, regardless of whether plea counsel had previously
given affirmative misadvise or failed to give any advice.” State v. Martinez, 729 S.E.2d 390, 392
(Ga. 2012); see also Lang, supra, at 978 (indicating a majority of jurisdictions find a plea
colloquy cures the prejudice in immigration contexts).

       In this case, the Court finds the plea colloquy was insufficient to cure the erroneous
information that Petitioner received from his defense counsel. The Court’s warnings protect
defendants’ Fifth Amendment rights and supplement their right to counsel. The Court only
informed Petitioner of the risk of immigration consequences; the Court did not contradict

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defense counsel. Defense counsel, on the other hand, told Petitioner his specific plea would not
have immigrations consequences in Petitioner’s case. As articulated by the Florida Supreme
Court, it is not the job of the Court to replace defense counsel and in these circumstances
Petitioner could have reasonably relied on defense counsel. See Hernandez, 2012 WL 5869660,
* 4. Moreover, Petitioner could reasonably have decided to pursue trial had he been correctly
informed, despite the Court’s warnings. See Padilla, 130 S.Ct. at 1485; Hill, 474 U.S. at 60.
Accordingly, the Court finds the Court’s colloquy did not cure the prejudice in this case.

       The Court finds that there are no disputed material facts and Petitioner is entitled to
judgment as a matter of law. See V.R.C.P. 56(a). Therefore, the Court must grant Petitioner’s
motion for summary judgment. The Court vacates Petitioner’s pleas.

                                            ORDER

       The Court grants Petitioner’s motion for summary judgment.


       Dated: May 14, 2013




                                             Karen R. Carroll
                                             Superior Court Judge




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