     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                April 19, 2018

                                2018COA51

No. 14CA1181, People v. Figueroa-Lemus — Criminal Procedure
— Withdrawal of Plea of Guilty or Nolo Contendere — Deferred
Judgment and Sentence

     A division of the court of appeals concludes that, following

Kazadi v. People, 2012 CO 73, 291 P.3d 16, a defendant may

challenge an unrevoked deferred judgment under Crim. P. 32(d).

Further, the majority concludes the court has jurisdiction to review

a district court’s denial of a motion to withdraw a guilty plea when

that motion challenged a deferred judgment still in effect.

     The dissent concludes that the court of appeals lacks

jurisdiction to review the denial of a Crim. P. 32(d) motion

challenging a deferred judgment that has not been revoked.

     Considering the merits of the motion to withdraw the guilty

plea, the majority concludes that the defendant did not establish a
fair and just reason for withdrawal because his counsel’s

performance was not deficient.

     Accordingly, the court affirms the district court’s order.
COLORADO COURT OF APPEALS                                      2018COA51


Court of Appeals No. 14CA1181
Jefferson County District Court No. 12CR2874
Honorable Christie A. Bachmeyer, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eswin Ariel Figueroa-Lemus,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division I
                        Opinion by JUDGE TAUBMAN
                            Richman, J., concurs
                            Furman, J., dissents

                           Announced April 19, 2018


Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Eswin Ariel Figueroa-Lemus, appeals the district

 court’s order denying his Crim. P. 32(d) motion to withdraw his

 guilty plea. We first consider whether we have jurisdiction to

 consider the appeal given that the guilty plea involves a deferred

 judgment that is still in effect. We conclude that we do because the

 supreme court in Kazadi v. People, 2012 CO 73, 291 P.3d 16,

 expressly provided that a defendant may challenge such a plea

 under Crim. P. 32(d). Next, we consider the merits and reject

 Figueroa-Lemus’s argument that counsel were constitutionally

 ineffective for failing to advise him of the immigration consequences

 of his plea. Accordingly, we affirm the district court’s order.

                             I. Background

¶2    Figueroa-Lemus pleaded guilty to possession of a schedule II

 controlled substance and driving under the influence (DUI). The

 parties stipulated to a two-year deferred judgment on the

 possession count and probation on the DUI count. The court

 accepted the deferred judgment and sentenced Figueroa-Lemus to

 two years of probation.

¶3    About five months later, Figueroa-Lemus filed a Crim. P. 32(d)

 motion to withdraw his guilty plea to the possession count. He


                                    1
 argued that defense counsel (Ed Ferszt) and the immigration

 attorney Ferszt had him speak with (Samuel Escamilla) were

 constitutionally ineffective for failing to advise him of the clear

 immigration consequences of the plea. Specifically, he alleged that

 counsel failed to investigate, research, and advise him that the plea

 would (1) result in mandatory deportation; (2) destroy the defense of

 cancellation of removal; (3) result in mandatory lifetime

 inadmissibility to the United States; and (4) result in mandatory

 immigration detention without bond. He also alleged that, if he had

 been properly advised, it would have been rational for him to reject

 the plea offer because it gave him no benefit from an immigration

 perspective.

¶4    After an evidentiary hearing, the district court denied the

 motion.

¶5    Figueroa-Lemus appealed the district court’s order denying the

 Crim. P. 32(d) motion. The People filed a motion to dismiss the

 appeal, arguing that we do not have jurisdiction to review that

 order. They contend that the order is not final and appealable

 because the motion challenged a deferred judgment (a non-final




                                     2
 judgment), which had not been revoked when the court entered the

 order or when Figueroa-Lemus filed the notice of appeal.

¶6    Initially, we announced an opinion based, in part, on a case

 that had been previously published by a division of this court,

 People v. Sosa, 2016 COA 92W, 395 P.3d 1144. We did not discover

 that Sosa had been withdrawn (due to a reporting error on Westlaw)

 until the People filed a petition for rehearing. We then withdrew our

 original opinion and ordered Figueroa-Lemus to respond to the

 arguments set forth in the People’s petition for rehearing. Having

 reviewed the People’s motion to dismiss, the briefs, the People’s

 petition for rehearing, and the response, we issue the following

 opinion.1

                            II. Jurisdiction

¶7    Every court has the authority to decide the question of its own

 jurisdiction. See In re Water Rights of Elk Dance Colo., LLC, 139

 P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial

 appellate jurisdiction over final judgments entered by a district


 1 By issuing this opinion, we effectively deny the People’s motion to
 dismiss this appeal and grant, in part, their petition for rehearing.
 In their petition, the People requested that we withdraw our
 previous opinion, which we have done.

                                   3
 court. See § 13-4-102(1), C.R.S. 2017; C.A.R. 1(a)(1). A final

 judgment is “one that ends the particular action in which it is

 entered, leaving nothing further for the court pronouncing it to do

 in order to completely determine the rights of the parties involved in

 the proceedings.” People v. Guatney, 214 P.3d 1049, 1051 (Colo.

 2009). In a criminal case, a final judgment is entered when a

 defendant is acquitted, has the charges dismissed, or is convicted

 and sentenced. See id.

¶8    A deferred judgment is not a final judgment. See People v.

 Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, a deferred

 judgment may not be subjected to either Crim. P. 35 or direct

 review while it is still in effect. See Kazadi, ¶ 10, 291 P.3d at 19.

¶9    Nevertheless, a defendant may challenge a deferred judgment

 under Crim. P. 32(d). See id. at ¶ 10, 291 P.3d at 19-20. In

 Kazadi, the parties argued for the first time in the supreme court

 that the defendant should be allowed to pursue a Crim. P. 32(d)

 motion to withdraw his guilty plea. See id. at ¶ 9, 291 P.3d at 19.

 The supreme court agreed, concluding that the rule “allows a

 defendant to move for withdrawal of a guilty plea before sentence is

 imposed or imposition of sentence is suspended.” Id. at ¶ 10, 291


                                    4
  P.3d at 20; cf. People v. Corrales-Castro, 2017 CO 60, ¶ 3, 395 P.3d

  778, 779 (concluding that Crim. P. 32(d) did not provide a remedy

  for a defendant who sought to withdraw his guilty plea after he had

  completed the terms of the deferred judgment, the plea had been

  withdrawn, and the case had been dismissed because Crim. P. 32(d)

  requires that a plea exist in order for it to be withdrawn). The

  supreme court then set forth the standards applicable to a Crim. P.

  32(d) motion, including the standard of appellate review. See

  Kazadi, ¶¶ 14-15, 291 P.3d at 21.

¶ 10   Like the defendant in Kazadi, Figueroa-Lemus pleaded guilty

  to a drug felony and stipulated to a deferred judgment on that

  count. The deferred judgment remains in effect, and he has not yet

  been sentenced on that count. Thus, we conclude that Crim. P.

  32(d) provided him with a mechanism to challenge the guilty plea in

  the district court.

¶ 11   We further conclude that we may review the district court’s

  order denying the Crim. P. 32(d) motion. It is unlikely that the

  supreme court would provide a remedy in the district court without

  allowing appellate review of the district court’s decision. See Colo.

  Const. art. II, § 6 (guaranteeing every person a right of access to


                                     5
  courts of justice); Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269

  U.S. 459, 472 (1926) (“Equity will not suffer a wrong without a

  remedy.”). Indeed, Kazadi expressly overruled People v. Anderson,

  703 P.2d 650 (Colo. App. 1985). See Kazadi, ¶ 20, 291 P.3d at 22-

  23. In Anderson, a division of this court had concluded that a

  deferred judgment was the equivalent of a suspension of sentence

  (making the Crim. P. 32(d) motion untimely) and the order denying

  a Crim. P. 32(d) motion was not a final, appealable order under

  C.A.R. 1(a)(1). See Anderson, 703 P.2d at 652.

¶ 12   In reaching this conclusion, we reject the People’s argument

  that C.A.R. 21(a)(1) provides a defendant with a viable remedy for

  appellate review when the plea involves a deferred judgment. First,

  relief under that rule is discretionary and is only available in

  extraordinary circumstances. Indeed, as shown in the protocols

  section of the supreme court’s website, granting review of a C.A.R.

  21 petition “rarely occurs.” For example, in 2015, only 15 of the

  242 petitions filed resulted in the issuance of an order to show

  cause. See Colo. Judicial Branch, Protocols of the Colorado Supreme

  Court, https://perma.cc/7MCL-QVNU. Second, contrary to the

  People’s contention that “the state constitutional right to appellate


                                     6
  review is satisfied by discretionary review,” the supreme court has

  held that the certiorari review process cannot adequately afford a

  defendant a right of appellate review on the merits. Bovard v.

  People, 99 P.3d 585, 592-93 (Colo. 2004). We also reject the

  People’s implication that relying on article II, section 6 of the

  Colorado Constitution would be improper because that provision

  does not concern the scope or substance of any remedy afforded to

  a defendant. We agree that the provision does not guarantee the

  scope or substance of any remedy. But it does require a review on

  the merits — a review that is not assured by the certiorari review

  process. Allison v. Indus. Claim Appeals Office, 884 P.2d 1113,

  1120 (Colo. 1994).

¶ 13   Third, if appellate review of the denial of a Crim. P. 32(d)

  motion was contingent upon the revocation of the deferred

  judgment, review would be time barred if it was revoked more than

  forty-nine days after the order had been entered. See C.A.R. 4(b)(1)

  (requiring that a notice of appeal in a criminal case be filed within

  forty-nine days after the entry of the order appealed from); Estep v.

  People, 753 P.2d 1241, 1246 (Colo. 1988) (“The timely filing of a

  notice of appeal is a jurisdictional prerequisite to appellate review.”).


                                      7
¶ 14   For these reasons, we will review the order denying Figueroa-

  Lemus’s Crim. P. 32(d) motion.

                        III. Crim. P. 32(d) Motion

¶ 15   Figueroa-Lemus argues that his guilty plea was not made

  knowingly, voluntarily, and intelligently because Ferszt never

  informed him of the clear immigration consequences of the plea. He

  contends that Ferszt failed to advise him that pleading guilty to the

  crime of possession of a schedule II controlled substance would (1)

  render him permanently inadmissible to the United States; (2)

  subject him to mandatory detention during immigration

  proceedings; (3) render him ineligible for the defense of cancellation

  of removal; and (4) subject him to mandatory deportation from the

  United States. We disagree.

                          A. Standard of Review

¶ 16   We review the district court’s denial of a Crim. P. 32(d) motion

  for an abuse of discretion. See Kazadi, ¶ 15, 291 P.3d at 21. The

  court abuses its discretion if its decision is manifestly arbitrary,

  unreasonable, or unfair, see People v. Finley, 141 P.3d 911, 913

  (Colo. App. 2006), or when its decision is based on an erroneous




                                     8
  view of the law or facts. See People v. Segovia, 196 P.3d 1126, 1129

  (Colo. 2008).

                      B. Crim. P. 32(d) Standards

¶ 17   A defendant does not have an absolute right to withdraw a

  guilty plea. See Kazadi, ¶ 14, 291 P.3d at 21. However, a court

  may allow a defendant to do so if he has shown a fair and just

  reason for the withdrawal — in other words, if denial of the request

  would subvert justice. See id.

¶ 18   The defendant has the burden of establishing that there is a

  fair and just reason to withdraw the guilty plea. See Crumb v.

  People, 230 P.3d 726, 730 (Colo. 2010). A defendant can do so by

  showing that the plea was made involuntarily. See id. A plea may

  be made involuntarily if a defendant does not completely

  understand the consequences of the plea and it is not the result of

  a free and rational choice. See People v. Kyler, 991 P.2d 810, 816

  (Colo. 1999).

¶ 19   The ineffective assistance of counsel may also constitute a fair

  and just reason to withdraw the plea. See Kazadi, ¶ 21, 291 P.3d

  at 23. To prevail on a Crim. P. 32(d) motion based on the ineffective

  assistance of counsel, a defendant “must meet the standards both


                                    9
  for ineffective assistance of counsel and for withdrawal of a guilty

  plea.” People v. Madera, 112 P.3d 688, 692 (Colo. 2005).

             C. Ineffective Assistance of Counsel Standards

¶ 20   An ineffective assistance of counsel claim presents mixed

  questions of law and fact. See Dunlap v. People, 173 P.3d 1054,

  1063 (Colo. 2007). Thus, we defer to the district court’s findings of

  fact when they are supported by the record but review de novo its

  legal conclusions. See id.

¶ 21   To prove a claim of ineffective assistance of counsel during the

  plea process, “a defendant must show (1) counsel’s representation

  fell below an objective standard of reasonableness and (2) a

  reasonable probability exists that but for counsel’s errors, he or she

  ‘would not have pleaded guilty and would have insisted on going to

  trial.’” People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011) (quoting

  Hill v. Lockhart, 474 U.S. 52, 59 (1985)), aff’d, 2012 CO 73, 291

  P.3d 16. “Because a defendant must show both deficient

  performance and prejudice, a court may resolve the claim solely on

  the basis that the defendant has failed in either regard.” People v.

  Karpierz, 165 P.3d 753, 759 (Colo. App. 2006).




                                    10
¶ 22   Plea counsel’s performance falls below an objective standard of

  reasonableness — in other words, is deficient — when he or she

  fails to present the defendant with the opportunity to make a

  reasonably informed decision about whether to accept a plea offer.

  See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009). Thus, a

  defendant is entitled to assume that his or her counsel will provide

  “sufficiently accurate advice” to enable him or her “to fully

  understand and assess the serious legal proceedings in which he

  [or she] is involved.” People v. Pozo, 746 P.2d 523, 526 (Colo. 1987).

¶ 23   Defense counsel in a criminal case has a duty to investigate

  relevant immigration law when he or she is aware that the client is

  a noncitizen. See id. at 529. When the immigration law is not

  succinct and straightforward, “a criminal defense attorney need do

  no more than advise a noncitizen client that pending criminal

  charges may carry a risk of adverse immigration consequences.”

  Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Counsel must advise

  a defendant of the risk of deportation when that consequence is

  clear. See id. at 368 (concluding that the terms of the relevant

  immigration statute were “succinct, clear, and explicit” where

  defense counsel “could have easily determined that [the defendant’s]


                                    11
  plea would make him eligible for deportation simply from reading

  the text of the statute”). However, Padilla does not require counsel

  to “use specific words to communicate” those consequences.

  Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013).

                 D. Federal Immigration Consequences

¶ 24   A noncitizen who is convicted of violating any law relating to a

  controlled substance (other than a single offense involving

  possession of thirty grams or less of marijuana) is deportable. See

  8 U.S.C. § 1227(a)(2)(B)(i) (2012). If the defendant is already in the

  United States, he or she is subject to removal on the order of the

  Attorney General. See 8 U.S.C. § 1227(a). The Attorney General is

  required to take a noncitizen with such a conviction into custody,

  and the noncitizen generally may not be released from custody.

  See 8 U.S.C. § 1226(c)(1)(B), (c)(2) (2012).

¶ 25   Such a conviction also (1) stops the accrual of the seven-year

  period of continued residence needed for a lawful permanent

  resident to seek cancellation of removal, see 8 U.S.C. § 1229b(a)(2),

  (d)(1) (2012); and (2) makes a noncitizen inadmissible and, thus,

  ineligible to be admitted into the United States. See 8 U.S.C.

  § 1182(a)(2)(A)(i)(II) (2012). Also, a conviction for purposes of federal


                                     12
  immigration law includes a deferred judgment and sentence. See 8

  U.S.C. § 1101(a)(48)(A) (2012) (defining a conviction as a guilty plea

  where “the judge has ordered some form of punishment, penalty, or

  restraint on the alien’s liberty to be imposed”).

                        E. Crim. P. 32(d) Hearing

¶ 26   During the Crim. P. 32(d) hearing, Ferszt testified that

            as evidenced by his notes, he learned that Figueroa-

             Lemus was a permanent resident during the initial

             intake;

            he explained to Figueroa-Lemus that if he pleaded guilty,

             he would eventually be picked up and deported and it

             was not a question of if, but when;

            although not reflected in a written note, he talked about

             the deportation issue in every conversation he had with

             Figueroa-Lemus;

            he understood that a guilty plea to the drug charge would

             make Figueroa-Lemus mandatorily deportable and

             mandatorily inadmissible, and that the defense of

             cancellation of removal would not apply;




                                     13
   he did not use “terms of art” but tended to use “a little

    more colorful language” by telling Figueroa-Lemus that if

    he pleaded guilty, “you’re gone,” he would lose his

    residency and eventually be deported, there was no way

    around it, and there was “no way to come and ask for

    forgiveness or a waiver or a pardon”;

   he did not talk to Figueroa-Lemus about cancellation of

    removal because, by telling him he would be deported, it

    encompassed saying that there was no opportunity for

    cancellation of removal;

   they initialed next to the paragraph about immigration

    consequences on the Crim. P. 11 advisement to

    “document that the issue was again brought up and

    discussed in the conference room right outside of court,”

    but the paragraph did not encapsulate all they

    discussed;

   he advised Figueroa-Lemus numerous times that the

    deferred judgment “would confer no benefit to him

    whatsoever, other than avoiding the state felony

    conviction,” and “for purposes of immigration, it was the

                           14
            same as if he was pleading guilty straight up” and the

            admission would be “permanent and binding”; and

           he pleaded with Figueroa-Lemus numerous times to talk

            to an immigration lawyer and, when he failed to do so,

            Ferszt referred Figueroa-Lemus to Escamilla.

¶ 27   Escamilla then testified that, as evidenced by his notes, he

  advised Figueroa-Lemus that if he pleaded guilty he would be

  deported. He also explained that the only drug conviction he could

  have on his record was possession of thirty grams or less of

  marijuana and told him that immigration officials would treat the

  deferred judgment as a plea of guilty, which would stay on his

  record forever for immigration purposes.

¶ 28   In contrast, Figueroa-Lemus testified that

           Ferszt never explained anything about the immigration

            consequences of the plea but told him that, if he

            successfully completed the deferred judgment, he “would

            have no problem with [i]mmigration and could move on to

            seek[] citizenship” — Ferszt never told him that he would

            be deported;




                                   15
           Escamilla advised him that “probably these cases could

            be deportable,” but they could possibly delay the

            proceedings so he could become a citizen before he

            pleaded guilty;

           Escamilla advised him that if he complied with the

            probation on the deferred judgment, it would be erased

            from his record; and

           he was not telling the truth when he told the court

            during the providency hearing that he understood the

            Crim. P. 11 advisement.

¶ 29   The district court denied the Crim. P. 32(d) motion. It found

  that neither Ferszt’s nor Escamilla’s performance fell below an

  objective standard of reasonableness because (1) both told

  Figueroa-Lemus “numerous times that he would be deported if he

  plead[ed] guilty to a drug charge, and left with no defense”; and (2)

  Ferszt advised Figueroa-Lemus that he would be permanently

  inadmissible “with no pardon.” The court also concluded that

  counsel were not required to advise Figueroa-Lemus that he would

  be subject to mandatory detention without bond because it was not

  a clear consequence of the guilty plea and Figueroa-Lemus had not

                                    16
  cited to (and the court was not aware of) any authority to support

  that position.

                             F. Application

¶ 30   Here, the immigration consequences of pleading guilty to a

  felony drug offense involving a schedule II controlled substance

  (including mandatory deportation, ineligibility for the cancellation of

  removal defense, and permanent inadmissibility) were clear because

  those consequences could be discerned from the face of the federal

  statutes. See, e.g., People v. Campos-Corona, 2013 COA 23, ¶ 13,

  343 P.3d 983, 986 (concluding that the mandatory removal

  consequence in the statute for a controlled substance offense was

  “succinct and straightforward”). Therefore, counsel was required to

  advise Figueroa-Lemus of those consequences. See Padilla, 559

  U.S. at 369.

¶ 31   We conclude that counsel adequately advised Figueroa-Lemus.

  Because it is supported by the record, we defer to the district

  court’s finding that both Ferszt and Escamilla told Figueroa-Lemus

  on multiple occasions that a guilty plea to a drug felony would

  result in deportation. Escamilla testified that he told Figueroa-

  Lemus that he would be deported if he pleaded guilty. That


                                    17
  testimony was supported by a note that Escamilla made when he

  gave Figueroa-Lemus the advisement.

¶ 32   And, Ferszt’s testimony that he told Figueroa-Lemus that if he

  pleaded guilty, “you’re gone,” he would lose his residency and

  eventually be deported, there was no way around it, and there was

  “no way to come and ask for forgiveness or a waiver or a pardon”

  sufficiently communicated that Figueroa-Lemus would be deported

  if he pleaded guilty. That language, along with Ferszt’s advisement

  that the admission would be permanent and binding for

  immigration purposes, was also sufficient to convey to Figueroa-

  Lemus that he was not eligible for the defense of cancellation of

  removal and would be inadmissible — that is, would not be able to

  return to the United States.

¶ 33   Although Figueroa-Lemus testified that counsel did not tell

  him that he would be deported (but only that he could be deported),

  it was for the district court (as the fact finder) to determine the

  credibility of the testimony, weigh the evidence, and resolve

  conflicts, inconsistencies, and disputes in the evidence. See People

  v. Bertrand, 2014 COA 142, ¶ 8, 342 P.3d 582, 584. In the end, the

  court found that Figueroa-Lemus’s testimony was not credible and


                                     18
  directly conflicted with notes from Ferszt’s file, emails between

  Ferszt and the prosecutor, the Crim. P. 11 petition, and the record

  from the providency hearing.

¶ 34   Finally, we reject Figueroa-Lemus’s argument that counsel

  should have advised him that he would be held in custody during

  the removal proceeding (mandatory detention). Figueroa-Lemus

  cites to no authority, and we have found none, that would require

  counsel to give this advice. Counsel admitted during the Crim. P.

  32(d) hearing that he did not have any case law to support the

  argument. Although he cites to an American Bar Association

  standard that states counsel should advise a client of all potential

  adverse immigration consequences and includes immigration

  detention in the list of those consequences, see Am. Bar Ass’n,

  Fourth Edition of the Criminal Justice Standards for the Defense

  Function 4-5.5(c) (Feb. 2015), https://perma.cc/PTU3-9WZQ, those

  standards are not binding precedent. See People v. Aleem, 149 P.3d

  765, 774 (Colo. 2007). In any event, we note that Figueroa-Lemus

  fails to explain how such an advisement would have affected his

  decision to accept the plea offer if he had been advised that he

  would be detained before he was deported.


                                    19
¶ 35   Under these circumstances, counsel’s performance was not

  deficient. Because counsel’s performance was not deficient, we

  need not consider whether Figueroa-Lemus was prejudiced. See

  Karpierz, 165 P.3d at 759. We therefore conclude that the district

  court did not abuse its discretion when it denied the Crim. P. 32(d)

  motion. See Kazadi, ¶ 15, 291 P.3d at 21.

                            IV. Conclusion

¶ 36   The order is affirmed.

       JUDGE RICHMAN concurs.

       JUDGE FURMAN dissents.




                                   20
       JUDGE FURMAN, dissenting.

¶ 37   Because I believe that we do not have jurisdiction to review the

  order denying the Crim. P. 32(d) motion, I respectfully dissent.

¶ 38   Every court has the authority to decide the question of its own

  jurisdiction. In re Water Rights of Elk Dance Colo., LLC, 139 P.3d

  660, 670 (Colo. 2006). As conferred by statute, we have initial

  appellate jurisdiction over final judgments entered by a district

  court. § 13-4-102(1), C.R.S. 2017; C.A.R. 1(a)(1). A final judgment

  is “one that ends the particular action in which it is entered, leaving

  nothing further for the court pronouncing it to do in order to

  completely determine the rights of the parties involved in the

  proceedings.” People v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009).

  In a criminal case, there is no final judgment until “the defendant is

  acquitted, the charges are dismissed, or the defendant is convicted

  and sentence is imposed.” People v. Gabriesheski, 262 P.3d 653,

  657 (Colo. 2011) (quoting Guatney, 214 P.3d at 1051).

¶ 39   But, a deferred judgment is neither a sentence nor a final

  judgment. See People v. Carbajal, 198 P.3d 102, 105-06 (Colo.

  2008). Rather, a deferred judgment is “a continuance with

  probation-like supervision conditions.” Id. at 106. Accordingly, a


                                    21
  deferred judgment “may not be subject to . . . direct appellate review

  until revoked.” Id. at 105; see also Kazadi v. People, 2012 CO 73,

  ¶ 18 (relying on Carbajal as precedent for its ruling).

¶ 40   Figueroa-Lemus sought to withdraw his guilty plea to the

  possession count while the deferred judgment was still in place.

  Although the prosecution filed a motion to revoke the deferred

  judgment, the district court has not yet ruled on the motion.

  Because the revocation hearing is still pending, Figueroa-Lemus will

  not be sentenced on the possession count unless the district court

  determines that his deferred judgment should be revoked. If the

  court does make this determination, the court must enter a

  judgment of conviction and sentence him before the judgment

  becomes final. See People v. Wiedemer, 899 P.2d 283, 284 (Colo.

  App. 1994).

¶ 41   Under these circumstances, there is no final judgment on

  Figueroa-Lemus’ possession count, and thus, I conclude that we

  lack jurisdiction to consider this appeal. See § 13-4-102(1); C.A.R.

  1(a)(1). I would therefore dismiss the appeal without prejudice for

  lack of jurisdiction.




                                    22
¶ 42    While I agree with the majority that a defendant may challenge

  a deferred judgment under Crim. P. 32(d), I disagree with the

  majority’s conclusion that Kazadi authorizes appellate courts to

  review Crim. P. 32(d) motions that are denied by the district court.

  Indeed, the Kazadi court reviewed the legal standards generally

  applicable to Crim. P. 32(d) motions, including that an appellate

  court would not overturn the denial of that motion absent an abuse

  of discretion. ¶¶ 14-15. But, Kazadi did not address the

  appealability of an order denying a Crim. P. 32(d) motion while a

  defendant’s deferred judgment is still pending and judgment is not

  yet final.

¶ 43    I also disagree with the majority’s conclusion that “[i]t is

  unlikely that the supreme court would provide a remedy in the

  district court without allowing appellate review of the district court’s

  decision.” Supra ¶ 11. There are certainly circumstances where an

  appellate court has jurisdiction to review the denial of a Crim. P.

  32(d) motion. For example, where a defendant’s Crim. P. 32(d)

  motion is denied and judgment is subsequently entered against

  him, such a judgment would be final and thus reviewable by an

  appellate court. The standards laid out in Kazadi would be


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  applicable to that review. ¶¶ 14-15. But, this is not such a case.

  Alternatively, a defendant could obtain appellate relief under C.A.R.

  21(a)(1), which allows the supreme court to exercise discretionary

  jurisdiction over a case when no other adequate remedy is available.

¶ 44   Finally, I acknowledge that immigration consequences of a

  deferred judgment plea may remain after it has been successfully

  completed and the charges dismissed. See People v. Corrales-

  Castro, 2017 CO 60, ¶ 13. But, the supreme court has made clear

  that consideration of such collateral consequences is not within the

  purview of this court. Id. Accordingly, I respectfully dissent and

  conclude that we lack jurisdiction to consider this appeal.




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