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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                           NO. 31,116

 5 JESUS GONZALES,,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
 8 Drew D. Tatum, District Judge

 9 Gary K. King, Attorney General
10 William Lazar, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Albert J. Costales
14 Truth or Consequences, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 FRY, Judge.

18          The State of New Mexico appeals the district court’s grant of Defendant Jesus

19 Gonzales’s motion to vacate his plea of no contest to child abuse. Defendant titled his

20 request for relief a “Petition for Writ of Coram Nobis, or in the Alternative a Rule [1-
 1 060(B) NMRA] Motion to Set Aside a Void Judgment.” “Because the common law

 2 writ of coram nobis was abolished and subsumed into Rule 1-060,” we address the

 3 request under Rule 1-060(B). State v. Barraza, 2011-NMCA-111, ¶ 4, ___N.M.___,

 4 267 P.3d 815; see State v. Tran, 2009-NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537.



 5        On September 3, 2008, Defendant pleaded no contest to child abuse in violation

 6 of NMSA 1978, Section 30-6-1(D) (2005) (amended 2009), a third degree felony.

 7 Conviction for this offense makes it virtually certain that Defendant, who is not a

 8 United States citizen, will be deported to Mexico. Under State v. Paredez, 2004-

 9 NMSC-036, ¶ 25, 136 N.M. 533, 101 P.3d 799, Defendant’s counsel was obligated

10 to advise him of the specific consequences his plea would have on his immigration

11 status. The parties do not dispute that Defendant’s counsel failed to meet this

12 requirement, having advised him only that he faced possible deportation. Defendant

13 argues that he received ineffective assistance of counsel in agreeing to enter the plea

14 and should therefore be allowed to withdraw it. The district court agreed, and the

15 State appeals.

16        In considering claims of ineffective assistance, we apply the two-pronged

17 Strickland test. “‘A convicted defendant’s claim that counsel’s assistance was so

18 defective as to require reversal of a conviction . . . has two components. First, the


                                              2
 1 defendant must show that counsel’s performance was deficient. . . . Second, the

 2 defendant must show that the deficient performance prejudiced the defense.’” Lytle

 3 v. Jordan, 2001-NMSC-016, ¶ 25, 130 N.M. 198, 22 P.3d 666 (quoting Strickland v.

 4 Washington, 466 U.S. 668, 687 (1984). Counsel’s failure to advise Defendant of the

 5 specific consequences to his immigration status satisfies the deficient performance

 6 prong of the ineffective assistance analysis. Paredez, 2004-NMSC-036, ¶ 19. Thus,

 7 we need only address the second prong of Strickland.

 8        “[T]he prejudice prong of the test is different for defendants convicted at trial

 9 than for defendants whose convictions rest on pleas.” Patterson v. LeMaster,

10 2001-NMSC-013, ¶ 18, 130 N.M. 179, 21 P.3d 1032. “[I]n the plea bargain context

11 a defendant must establish that his counsel’s performance was objectively

12 unreasonable and that but for counsel’s errors, he would not have pleaded guilty and

13 instead gone to trial.” Id. (internal quotation marks and citation omitted). “A

14 defendant who was convicted on a plea is not required to prove that a trial would have

15 resulted in acquittal. The question is whether there is a reasonable probability that the

16 defendant would have gone to trial instead of pleading guilty or no contest had

17 counsel not acted unreasonably.” Id. (internal quotation marks and citation omitted).

18 “[A] defendant seeking to establish that there is a reasonable probability that he or she

19 would have gone to trial generally must introduce evidence beyond self-serving


                                               3
 1 statements.” State v. Edwards, 2007-NMCA-043, ¶ 35, 141 N.M. 491, 157 P.3d 56.

 2 “Such evidence may include pre-conviction statements or actions indicating the

 3 defendant’s preference to plead or to go to trial.” Id. “[C]ourts can look to the

 4 strength of the evidence against the defendant in determining whether there is a

 5 reasonable probability that the defendant would have elected to go to trial because the

 6 evidence against a defendant informs his or her decision about whether to challenge

 7 the charges at trial.” Id. (internal quotation marks and citation omitted). “There is a

 8 direct relationship between the strength of the case against a defendant and the

 9 likelihood that he or she will plead guilty or no contest.” Id. (internal quotation marks

10 and citation omitted).

11        In its decision letter following the hearing on Defendant’s Rule 1-060(B)

12 motion, the district court found that Defendant had presented evidence that he would

13 not have entered the plea agreement had he known he would be deported. The

14 decision letter did not identify the specific evidence the district court was relying on,

15 stating only, “The evidence presented by . . . Defendant to prove he would not have

16 entered into this plea agreement if he had not relied upon the advice of his attorney

17 [has] merit.” Our own review of the record, however, reveals that the district court

18 had evidence before it to support its decision in addition to Defendant’s testimony at

19 the plea withdrawal hearing.


                                               4
 1         We first recognize, as our Supreme Court did in Paredez, that “[d]eportation

 2 can often be the harshest consequence of a non-citizen criminal defendant’s guilty

 3 plea, so that in many misdemeanor and low-level felony cases . . . [he or she] is

 4 usually much more concerned about immigration consequences than about the term

 5 of imprisonment.” Id. ¶ 18 (alteration in original) (internal quotation marks and

 6 citation omitted).     Defendant’s circumstances in the present case suggest that

 7 deportation would be a harsh outcome for him because he had left Mexico as a child

 8 and legally lived in the United States for almost fifteen years; his mother, brother, and

 9 wife–whose five children he was helping her raise–live in the United States; he owned

10 a house and vehicles with his wife; and he had no life in Mexico.

11         At the time Defendant entered his no contest plea and for some time thereafter,

12 the parties appear to have believed that if Defendant were granted a conditional

13 discharge for the offense, that outcome would not have counted as a conviction for

14 purposes of federal immigration law, and Defendant would not be deported. In his

15 closing argument at the sentencing hearing, for example, defense counsel argued for

16 a conditional discharge in order to avoid a felony conviction that would lead to

17 deportation and thus break up Defendant’s family. However, as the State realized

18 after filing its brief in chief in the present appeal, if a defendant admits sufficient facts




                                                 5
 1 to warrant a finding of guilt, it counts as a conviction for immigration purposes even

 2 if the trial court withholds an adjudication of guilt.1

 3         In deciding how to plead, Defendant was confronted with two possible negative

 4 outcomes: incarceration and deportation. Under the terms of the plea agreement, the

 5 no contest plea could result in a conditional discharge, which Defendant and the

 6 parties believed would mean no incarceration and no deportation.               The other

 7 possibility under the no contest plea was conviction, which would mean—as

 8 Defendant was incorrectly told—possible deportation and possible incarceration. If

 9 instead Defendant had gone to trial, he might be found not guilty and thus faced

10 neither deportation nor incarceration. If he were found guilty, he faced—he was

11 incorrectly told—possible deportation and likely longer incarceration than if he were

12 convicted under a no-contest plea. Thus, Defendant was incorrectly advised on two

13 levels: he was told that deportation was possible rather than virtually certain, and he

14 was told that a conditional discharge would not count as a conviction under

15 immigration law. As Defendant understood his options, the best outcome was the no

16 contest plea because the worst-case scenario there likely meant less incarceration than

           1
16           8 U.S.C. 1101(a)(48)(A) (2010): “The term ‘conviction’ means, with respect
17   to an alien, a formal judgment of guilt of the alien entered by a court or, if
18   adjudication of guilt has been withheld, where—(i) a judge or jury has found the alien
19   guilty or the alien has entered a plea of guilty or nolo contendere[,] or has admitted
20   sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form
21   of punishment, penalty, or restraint on the alien’s liberty to be imposed.”

                                                6
 1 if he were found guilty after trial. As discussed above, the reality of his choices was

 2 quite different: the no contest plea would result in virtually certain deportation.

 3 Stated another way, given the reality of his choices as opposed to what he was told,

 4 not only was there a “reasonable probability” that he would have elected to go to trial,

 5 it simply made no sense for him to enter the no contest plea.                 Edwards,

 6 2007-NMCA-043, ¶ 35.

 7        Finally, although there was graphic evidence against Defendant in the form of

 8 photographs of the victim’s bruises, if Defendant had correctly understood his options,

 9 he had at least some incentive to take his chances at trial because a jury might have

10 accepted his argument that he believed he was defending his mother from the victim.

11 CONCLUSION

12        We conclude that but for the incorrect advice Defendant’s counsel provided,

13 there was a reasonable probability that Defendant would have elected to go to trial,

14 and he thus incurred prejudice under the second prong of Strickland.

15        For the reasons stated above, we affirm the district court and remand for further

16 proceedings consistent with this Opinion.




                                              7
1     IT IS SO ORDERED.



2
3                              CYNTHIA A. FRY, Judge

4 WE CONCUR:



5
6 RODERICK T. KENNEDY, Judge



7
8 LINDA M. VANZI, Judge




                                8
