COLORADO COURT OF APPEALS                                        2016COA169


Court of Appeals No. 15CA1507
Weld County District Court No. 96CR819
Honorable Carol Glowinsky, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Israel Chavez-Torres,

Defendant-Appellant.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                    Division I
                            Opinion by JUDGE DUNN
                        Taubman and Casebolt*, JJ., concur

                          Announced November 17, 2016


Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood,
Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In People v. Martinez-Huerta, 2015 COA 69, ¶ 18, a division of

 this court concluded that a defendant’s allegation that he pleaded

 guilty based upon his counsel’s “affirmative and erroneous” advice

 regarding the immigration consequences of such a plea warranted a

 hearing to determine whether the defendant could establish

 justifiable excuse or excusable neglect for his late postconviction

 motion.

¶2    Relying on that case, the district court here summarily denied

 the untimely Crim. P. 35(c) motion of defendant, Israel

 Chavez-Torres, concluding as a matter of law that Martinez-Huerta

 foreclosed a hearing to determine whether Chavez-Torres’

 allegations, if true, would establish justifiable excuse or excusable

 neglect.

¶3    Because we do not read Martinez-Huerta the same way, and

 because we further conclude that Chavez-Torres alleged facts that,

 if true, would establish justifiable excuse or excusable neglect, we

 reverse and remand the case for further proceedings.

                            I. Background

¶4    Chavez-Torres is a citizen of Mexico who came to the United

 States with his family when he was a child. While in high school,


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 Chavez-Torres pleaded guilty to first degree criminal trespass. The

 trial court sentenced him to probation, which he successfully

 completed.

¶5    Seventeen years after his criminal trespass conviction, the

 United States Department of Homeland Security initiated removal

 proceedings, alleging that Chavez-Torres was not legally present in

 the United States and had been convicted of a crime involving moral

 turpitude.

¶6    Chavez-Torres consulted with an immigration attorney who

 advised him that because of his conviction, he was not eligible for

 cancellation of removal from the United States. The immigration

 attorney also advised him that his plea counsel may have been

 ineffective in not advising him of the immigration consequences of

 his guilty plea.

¶7    Chavez-Torres moved for postconviction relief from his

 criminal trespass conviction under Crim. P. 35(c). He alleged that,

 despite the fact that he had informed plea counsel that he was not a

 citizen of the United States, counsel had advised him to accept the

 plea agreement without telling him that the guilty plea carried a

 risk of adverse immigration consequences. He claimed that, had


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 plea counsel properly advised him of this risk, he would have

 rejected the plea offer and insisted on going to trial. As a result, he

 asserted that his plea and conviction were constitutionally infirm.

¶8    Chavez-Torres acknowledged that his postconviction motion

 was untimely. But he alleged that the untimeliness resulted from

 circumstances amounting to justifiable excuse or excusable neglect

 because he had no reason to question the constitutional validity of

 his criminal trespass conviction until the initiation of the removal

 proceedings. It was only then, he alleged, that he learned his

 trespass conviction prevented him from remaining in the United

 States and that his plea counsel may have rendered ineffective

 assistance.

¶9    The district court summarily denied Chavez-Torres’ motion. It

 found that (1) the motion was filed beyond the three-year deadline

 for postconviction challenges; (2) given the passage of time, “the

 prejudice to the state’s case would be great”; and (3) Chavez-Torres

 had failed to assert facts “amounting to justifiable excuse or

 excusable neglect.”




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               II. Justifiable Excuse or Excusable Neglect

¶ 10   Chavez-Torres contends that the district court erred in

  summarily denying his postconviction motion based on the

  statutory time bar because (1) he asserted facts that, if true, would

  establish justifiable excuse or excusable neglect; and (2) the finding

  that the State would suffer “great” prejudice has no record support.

  We agree as to both.

                         A. Governing Standards

¶ 11   A defendant has three years to file a Crim. P. 35(c) motion

  challenging a non-class-one felony conviction. § 16-5-402(1),

  C.R.S. 2016. But the deadline may be extended if “the failure to

  seek relief within the applicable time period was the result of

  circumstances amounting to justifiable excuse or excusable

  neglect.” § 16-5-402(2)(d).

¶ 12   To merit a hearing on the exception to the three-year deadline,

  a defendant must allege facts that, if true, would establish

  justifiable excuse or excusable neglect. Close v. People, 180 P.3d

  1015, 1019 (Colo. 2008); People v. Wiedemer, 852 P.2d 424, 440

  n.15 (Colo. 1993). The defendant need not set forth the evidentiary

  support for his allegations. Close, 180 P.3d at 1019.


                                    4
¶ 13     In determining whether justifiable excuse or excusable neglect

  exists, the district court must consider “the particular facts of [the]

  case, so as to give effect to the overriding concern that defendants

  have a meaningful opportunity to challenge their convictions as

  required by due process.” Id. To facilitate such a case-specific

  review, our supreme court has identified a list of non-exhaustive

  factors that a district court must consider in addressing justifiable

  excuse or excusable neglect. Wiedemer, 852 P.2d at 442. In

  particular, the court must take into consideration whether

       1. circumstances or outside influences existed that prevented a

         challenge to the prior conviction;

       2. a defendant having reason to question the constitutionality of

         a conviction investigated its validity and took advantage of

         relevant avenues of relief that were available;

       3. a defendant had any previous need to challenge a conviction

         and either knew that it was constitutionally infirm or had

         reason to question its validity;

       4. a defendant had other means of preventing the government’s

         use of the conviction, so that a postconviction challenge was

         previously unnecessary; and


                                       5
       5. the passage of time affects the State’s ability to defend against

         the challenge.

  Id. at 441-42.

¶ 14     Whether a defendant can ultimately establish justifiable

  excuse or excusable neglect is a question of fact for the district

  court. Id. at 443. But whether the defendant alleged facts that, if

  true, would constitute justifiable excuse or excusable neglect, and

  therefore merit a hearing on the issue, is a question that we review

  de novo. Martinez-Huerta, ¶ 8; see Close, 180 P.3d at 1019, 1022.

                      B. The Postconviction Allegations

¶ 15     Chavez-Torres’ postconviction motion alleged that (1) he “told

  [his counsel] that he was not a citizen of the United States”; (2) “[o]n

  the advice of his attorney,” he accepted the plea offer; (3) his

  attorney “did not advise him that the plea would prevent him from

  becoming a lawful permanent resident” or “prevent him from

  applying for cancel[l]ation of removal”; (4) he was “unaware” that

  the plea would “prevent him from remaining in the United States”;

  (5) he successfully completed his probation in 1998; and (6) he did

  not learn that his conviction had adverse immigration consequences

  until the removal proceedings were initiated. In support of his


                                       6
  postconviction motion, Chavez-Torres attached his plea agreement,

  which — unlike some such agreements — contained no notice of

  possible immigration consequences. And he attached his plea

  transcript, which again did not refer to possible immigration

  consequences.1

¶ 16   The prosecution did not respond to the postconviction motion.

¶ 17   Despite the uncontested allegations, the district court

  summarily denied the postconviction motion. Specifically, relying

  on Martinez-Huerta, the district court concluded, as a matter of law,

  that an attorney’s failure to advise a client of adverse immigration

  consequences “does not establish justifiable excuse or excusable

  neglect.” And it concluded that the prejudice to the State’s case

  “would be great.”

                             C. Martinez-Huerta

¶ 18   Martinez-Huerta did not address the issue presented here.

  That is, it did not consider whether allegations that an attorney


  1 The record also contains the district court’s disposition hearing
  checklist. Although the form has check marks next to several boxes
  related to Chavez-Torres’ plea, the box identified as “POZO
  advisement” is not checked. See People v. Pozo, 746 P.2d 523, 529
  (Colo. 1987) (recognizing that counsel has a duty to investigate the
  immigration consequences for a known non-citizen client).

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  affirmatively advised her non-citizen client to accept a plea, without

  also advising the client of related possible immigration

  consequences, are sufficient to warrant a hearing on justifiable

  excuse or excusable neglect. Rather, Martinez-Huerta concluded

  that the defendant’s allegation there — that his counsel gave him

  “affirmative and erroneous” advice — was sufficient to warrant a

  hearing to determine whether the defendant could establish

  justifiable excuse or excusable neglect. Id. at ¶ 18. We thus do not

  agree with the district court that Martinez-Huerta stands for the

  general proposition that an attorney’s mere failure to advise a client

  of adverse immigration consequences, under the circumstances

  alleged here, is insufficient, as a matter of law, to establish

  justifiable excuse or excusable neglect.

¶ 19   To be sure, and as the People stress, Martinez-Huerta observed

  that “[g]enerally, the absence of, or failure to give, advice does not

  establish justifiable excuse or excusable neglect.” Id. at ¶ 17. But

  the cases Martinez-Huerta relied on for this unremarkable

  proposition — People v. Alexander, 129 P.3d 1051 (Colo. App.

  2005), and People v. Slusher, 43 P.3d 647 (Colo. App. 2001) — are

  not immigration consequence cases. And neither involved


                                      8
  situations — like this one — where an attorney has a legal duty to

  advise a known, non-citizen client of possible immigration

  consequences related to a guilty plea. See People v. Pozo, 746 P.2d

  523, 526 (Colo. 1987) (holding that attorneys have an affirmative

  duty to research relevant immigration law for their non-citizen

  clients, and when the law is clear, to advise their clients regarding

  the immigration consequences of a guilty plea); accord People v.

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

  also Padilla v. Kentucky, 559 U.S. 356, 367 (2010) (recognizing that

  prevailing norms support “the view that counsel must advise her

  client regarding the risk of deportation”).

¶ 20   In fact, Alexander held that appellate counsel has no duty to

  advise a defendant of the time limitations for seeking postconviction

  relief. 129 P.3d at 1056. As a result, it concluded that the absence

  of such advice was not a justifiable excuse and did not excuse the

  defendant’s neglect. Id. And Slusher concluded that, under the

  circumstances there, an attorney’s failure to advise a defendant of

  his rights under the Uniform Mandatory Disposition of Detainers

  Act (UMDDA) did not constitute justifiable excuse because the

  defendant did not explain why he failed to include his UMDDA


                                     9
  claim in a prior postconviction proceeding in which he was

  represented by counsel. 43 P.3d at 651. We thus do not agree that

  Alexander or Slusher created a per se rule that an allegation that an

  attorney failed to give advice — which the attorney has an

  affirmative legal duty to give — is insufficient to warrant a hearing

  to determine whether a defendant can demonstrate justifiable

  excuse or excusable neglect.

¶ 21   The People next argue that Chavez-Torres’ “ignorance of the

  law” should not excuse his failure to file a timely postconviction

  motion. In so arguing, the People rely on People v. White, 981 P.2d

  624, 626 (Colo. App. 1998), and People v. Vigil, 955 P.2d 589, 591-

  92 (Colo. App. 1997). But White and Vigil are unhelpful for the

  same reason that Alexander and Slusher are not helpful. These

  cases do not involve counsel’s affirmative legal duty to advise a

  client regarding the risk of immigration consequences. Instead,

  they recognize the principle that a defendant’s ignorance regarding

  the postconviction time bar cannot constitute justifiable excuse or

  excusable neglect. White, 981 P.2d at 626; see Vigil, 955 P.2d at

  591-92.




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¶ 22   But Chavez-Torrez has not alleged he should be excused

  simply because he was unaware of a statutory deadline. He alleged

  that his plea counsel advised him to plead guilty to criminal

  trespass, knowing he was not a citizen and without satisfying her

  legal duty to advise him of the related immigration consequences.

  And until he became aware of plea counsel’s alleged failure to fulfill

  her legal duty, he asserts that he had no reason to question the

  constitutionality of his conviction. Chavez-Torres thus alleged facts

  directly implicating two Wiedemer factors. See Wiedemer, 852 P.2d

  at 441 (whether and when the defendant had reason to question the

  constitutionality of his conviction). Such particular facts are the

  type our supreme court cautioned “must” be considered “so as to

  give effect to the overriding concern that defendants have a

  meaningful opportunity to challenge their convictions as required

  by due process.” Close, 180 P.3d at 1019.

¶ 23   Under these circumstances and in light of Chavez-Torres’

  Crim. P. 35(c) allegations, we do not agree that Martinez-Huerta

  forecloses a hearing to determine whether Chavez-Torres can

  establish justifiable excuse or excusable neglect for his otherwise

  untimely postconviction motion.


                                    11
                           D. The Remaining Factors

¶ 24         As a second basis for summarily denying Chavez-Torres’

  postconviction motion, the district court found that “the prejudice

  to the state’s case would be great” due to the passage of time. The

  record, however, does not support this factual finding.

¶ 25         Whether relevant files and witnesses exist is a factual

  inquiry that must be determined on a case-by-case basis. See

  Wiedemer, 852 P.2d at 441; Martinez-Huerta, ¶ 13. The answer will

  not always be the same.

¶ 26   Although it appears that Chavez-Torres’ postconviction motion

  was sent to the district attorney’s office, the prosecution did not

  object or respond. Nor did the district court seek or require a

  response. And — as Chavez-Torres points out — the record here

  includes the plea agreement and the transcripts of the providency

  hearing and sentencing proceedings. He also alleged that plea

  counsel is still a practicing Colorado attorney. Absent a response

  from the prosecution, we cannot say whether this record is

  sufficient for the prosecution to defend the postconviction motion.

  At any rate, the existing record does not support the district court’s

  finding that the State will suffer “great” prejudice.


                                     12
¶ 27   Finally, other than the passage of time, it is unclear whether

  the district court considered and weighed the remaining Wiedemer

  factors. See Wiedemer, 852 P.2d at 442 n.20 (“[T]he best approach

  for determining whether a defendant satisfies the justifiable excuse

  or excusable neglect standard under § 16-5-402(2)(d) is a weighing

  of the various interests at stake.”). Specifically, Chavez-Torres

  alleged that having followed his counsel’s advice to accept the plea

  offer, without discussion of the immigration consequences, he had

  no reason to question the constitutional validity of his guilty plea

  until he consulted with an immigration attorney about his removal

  proceedings. Chavez-Torres thus alleged facts that implicate the

  second and third Wiedemer factors (whether and when he had

  reason to question the constitutionality of his conviction). But the

  record is silent with respect to whether the district court considered

  and weighed these factors. Cf. People v. Cordova, 199 P.3d 1, 5

  (Colo. App. 2007) (concluding “the trial court appropriately

  considered all the Wiedemer factors to determine justifiable excuse

  or excusable neglect, and that the court’s findings are supported by

  the record”). For this reason too, a remand is needed.




                                    13
¶ 28   Given all this, and under these circumstances, we are

  “reluctant to conclude, as a matter of law, that justifiable excuse or

  excusable neglect did not exist.” People v. Clouse, 74 P.3d 336, 341

  (Colo. App. 2002); accord Martinez-Huerta, ¶ 24. And we are

  persuaded that Chavez-Torres has “pleaded facts that warrant a

  hearing on justifiable excuse or excusable neglect.”

  Martinez-Huerta, ¶ 7.

                   III. Ineffective Assistance of Counsel

¶ 29   Even accepting that the allegations could warrant a hearing on

  justifiable excuse or excusable neglect, the People urge us to affirm

  the district court’s denial of Chavez-Torres’ postconviction motion

  on the alternative basis that he has failed to prove the prejudice

  prong of his ineffective assistance of counsel claim. Although we

  may affirm a district court’s order on any basis supported by the

  record, we are not persuaded to do so here.

¶ 30   The denial of a claim of ineffective assistance of counsel

  without a hearing is justified if, but only if, the existing record

  establishes that the defendant’s allegations, even if proven true,

  would fail to establish either constitutionally deficient performance

  or prejudice. Strickland v. Washington, 466 U.S. 668, 690 (1984);


                                     14
  Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). To demonstrate

  prejudice in the context of a guilty plea, a defendant must show a

  reasonable probability that, but for counsel’s deficient performance,

  he would have rejected the plea offer and insisted on going to trial.

  See Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. Morones-

  Quinonez, 2015 COA 161, ¶ 7. In an immigration consequences

  case, such a showing requires an allegation that rejecting the plea

  “would have been rational under the circumstances.” Padilla, 559

  U.S. at 372.

¶ 31   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. See id.; Morones-Quinonez, ¶ 12 (“[I]n the context of a

  decision to forgo a guilty plea based on immigration considerations,

  the defendant need only make some showing that the decision

  would have been rational.”); see also Kazadi, 284 P.3d at 75 (The

  defendant’s “alleged personal circumstances and lack of ties to the

  Congo support[ed] his assertion that he would not have pleaded


                                    15
  guilty had he received the advice that he was constitutionally

  entitled to receive.”).

¶ 32   Because Chavez-Torres has alleged facts that support his

  contention that it would have been “rational under the

  circumstances” to reject the plea offer had he been properly advised

  of the immigration consequences, we cannot, on this record,

  conclude otherwise as a matter of law.

                               IV. Conclusion

¶ 33   The order denying the postconviction motion is reversed, and

  the case is remanded to the district court. On remand, the court

  shall hold a hearing to determine whether Chavez-Torres has

  established justifiable excuse or excusable neglect for his untimely

  postconviction motion. If he can, the court must then consider the

  merits of his postconviction motion.

       JUDGE TAUBMAN and JUDGE CASEBOLT concur.




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