COLORADO COURT OF APPEALS                                 2017COA127


Court of Appeals No. 13CA1296
City and County of Denver District Court No. 11CR1007
Honorable John W. Madden IV, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alfredo Juarez,

Defendant-Appellant.


                              ORDER AFFIRMED

                                 Division IV
                        Opinion by JUDGE GRAHAM
                        Booras and Dunn, JJ., concur

                         Announced October 19, 2017


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

Douglas K. Wilson, Colorado State Public Defender, John Plimpton, Deputy
State Public Defender, Denver, Colorado; Rachel C. Funez, New Castle,
Colorado, for Defendant-Appellant
¶1    Defendant, Alfredo Juarez, appeals the postconviction court’s

 order denying his Crim. P. 35(c) motion seeking to withdraw his

 guilty plea. We conclude that Juarez’s plea counsel was not

 ineffective when he advised Juarez that his plea to a class 1

 misdemeanor would “probably result in deportation,” and,

 therefore, we conclude Juarez is not entitled to withdraw his guilty

 plea. Accordingly, we affirm.

                          I.     Background

¶2    Juarez is a Mexican foreign national who has lived in Denver

 since he was approximately six years old. After graduating from

 high school, he married a United States citizen, and in 2009 he was

 granted lawful permanent residence status. His parents live in

 Denver, he has two children who are United States citizens, and he

 has not returned to Mexico at any time prior to his deportation at

 issue in this case.

¶3    In early 2011, the police were called to Juarez’s residence after

 he got into a fight with family members. Officers were forced to tase

 Juarez to subdue him and, in a search incident to arrest, cocaine

 was found in his possession. Juarez was charged with one felony

 count of possession of a controlled substance and hired Mr. Tatum


                                   1
 to represent him. At the same time, Mr. Whitehead, an immigration

 attorney, was also representing Juarez in an unrelated matter

 concerning his lawful permanent residence status.

¶4    Tatum received multiple continuances in the criminal case in

 an attempt to negotiate a plea with the district attorney that would

 not result in Juarez’s deportation from the United States. Tatum

 understood that there was no option short of a misdemeanor for

 less than one ounce of marijuana that would guarantee avoidance

 of deportation. Ultimately, Juarez pleaded guilty to possession of a

 schedule V controlled substance, a class 1 misdemeanor, with a

 stipulated sentence of two years of drug court probation.

¶5    During Juarez’s April 2012 providency hearing, Tatum

 informed the court as follows:

           The reason this case has . . . dragged on for a
           long time is because [co-counsel] and I have
           spent a lot of time trying to figure out if there
           was . . . a disposition that would be . . . better
           for him, immigration-wise.

           ....

           Unfortunately . . . that never occurred. We
           have . . . at all times advised him that it is our
           understanding -- although we’re not -- I’m not
           an expert in immigration law, but based on my
           consultation with immigration attorneys -- that


                                    2
           this plea very likely will result in either
           deportation or some type of exclusion from the
           United States.

           He is a legal resident. He does have a green
           card. But it’s fairly well known now that any
           drug offense other than simple possession of
           under an ounce of marijuana will have
           negative immigration consequences.1

           ....

           I -- I cannot tell him any stronger. You know,
           this is a misdemeanor under Colorado state
           law, but it is the equivalent of a felony under
           the immigration and naturalization act, and,
           you know, I have made him aware of that . . . .

 (Emphasis added.)

¶6    The court then asked Juarez if he understood “that this plea

 could . . . affect your immigration status. Do you understand that?”

           [Juarez]: Yeah.

           The Court: Okay. And even knowing that, do
           you want to proceed with this disposition
           today?

           [Juarez]: (Indistinguishable.) There’s nothing I
           can do, you know. It was -- I don’t know. This
           whole case just was something that should
           have . . . never really happened, you know. It
           was all due to my dumb behavior, but, you
           know, we tried to make it work, but we can’t


 1In response to this comment by Tatum, the court stated, “Or it
 could.” (Emphasis added.)

                                  3
           get it to what we have to, so we got to go with
           what . . . we can do now.

           ....

           The Court: Mr. Juarez, understanding all the
           consequences, both the immigration
           consequences, the potential that if you violate
           probation I could sentence you pursuant to
           what I told you . . . do you still want to . . .
           take this plea today?

           [Juarez]: Yeah.

 (Emphasis added.)

¶7    The court sentenced Juarez to two years of drug court

 probation as recommended in his plea agreement.

¶8    In May 2012, Juarez tested positive for THC, and the drug

 court imposed a suspended two-day jail sentence on the condition

 his THC levels drop. Because his THC levels did not drop, the drug

 court imposed the two-day jail sentence in early June. When

 Juarez again failed to lower his THC levels in late June, the court

 imposed a three-day sentence. During this second period of

 incarceration, United States Immigration and Customs Enforcement

 (ICE) placed a hold on Juarez and began deportation proceedings.

 An order of removal was entered by the immigration court on

 September 5, 2012, and Juarez was ultimately deported to Mexico.


                                   4
¶9     In October 2012 and January 2013, Juarez filed motions for

  postconviction relief alleging ineffective assistance of counsel.

  Juarez argued Tatum failed to advise him that his guilty plea would

  subject him to (1) mandatory deportation; (2) lifetime inadmissibility

  to the United States; (3) mandatory detention; and (4) destruction of

  the defense of cancellation of removal. But for these errors, Juarez

  alleged, he would not have pleaded guilty and instead would have

  risked going to trial.

¶ 10   The postconviction court held a hearing over three days in

  which Tatum, Juarez (via internet connection from Mexico), and

  Whitehead testified. The testimony of each is summarized below:

           Tatum stated that “immigration was always, I think, the

             paramount consideration” for Juarez; that he “was aware

             that the plea agreement proposed by the District Attorney

             was not acceptable because it would likely get Mr. Juarez

             deported”; and that “I specifically asked Mr. Juarez if he

             wanted to take the Class 1 misdemeanor deal that had

             been offered, and I told him, ‘Your immigration attorney

             advised you that a plea to the Class 1 misdemeanor will

             probably result in deportation.’”


                                     5
        Juarez testified Tatum and Whitehead told him the plea

         would make him deportable,2 but “[t]hey never said you

         are going to get deported. They never said you are going

         to get deported as soon as you are free. You are going to

         get deported, they never said that.” Juarez also testified

         his attorneys never explained that “the misdemeanor plea

         carried absolutely no benefit over the felony” for

         immigration purposes; that he “could be subject to

         mandatory lifetime inadmissibility”; that he could be

         subject to “mandatory immigration detention”; or that his

         plea would “destroy[] a defense to deportation.”

        Whitehead stated that his general practice at the time

         was to inform his clients “you are going to probably be

         placed in removal proceedings or you are going to be

         facing a permanent bar []to admissibility into the

         country.” He also stated, “What I remember telling Mr.

         Juarez . . . was that if he pled guilty to the drug offense


2 Defendant testified, “I know I was pleading guilty to a
misdemeanor that would make me deportable according to the
information that my lawyer gave me and according to what he
knew.”

                                 6
            that was being offered to him at the time . . . that he

            would, 1, probably be placed in remov[al] proceedings

            and, 2, . . . probably be facing a permanent bar.”

¶ 11   After listening to arguments and reviewing the case law on

  effective assistance to noncitizen defendants, the postconviction

  court denied Juarez’s motion in a written order. The court held:

            [I]n Padilla v. Kentucky, 559 U.S. 356, 130 S.
            Ct. 1473 (2010), . . . the United States
            Supreme Court found that, under the present
            immigration laws, deportation is an integral
            part of the penalty that may be imposed on
            noncitizen defendants who plead guilty to
            certain crimes. In doing so, it noted that
            deportation is a particularly severe penalty,
            even though it is not technically a criminal
            sanction. . . . Accordingly, the United States
            Supreme Court held that, under the Sixth
            Amendment’s guarantee of effective
            representation, “counsel must inform her
            client whether his plea carries a risk of
            deportation.” Id., 130 S. Ct. at 1486 (emphasis
            added). The Supreme Court used this precise
            language — “risk of deportation” — multiple
            times in Padilla.

            ....

            The Defendant was advised and was aware
            that his plea carried a risk of deportation.
            Further, the risk of deportation was correctly
            quantified as being very likely. As such, the
            Court finds that the Defendant has not
            established either prong of the Strickland test


                                    7
            and that his attorney did not provide
            ineffective assistance of counsel.

            The Defendant’s attorney, Mr. Tatum, knew
            early on that the Defendant was a legal
            resident of this country but was not a citizen.
            Accordingly, he had an obligation to
            investigate whether the plea offer made to the
            Defendant would make the Defendant eligible
            for deportation. He did this by consulting with
            an experienced immigration attorney, Lillian
            Shea, as well as the Defendant’s own
            immigration attorney, Mr. Whitehead. As a
            result of those consultations, he had a correct
            understanding that, if the Defendant accepted
            the plea bargain in this case, he would likely
            be deported. More importantly in this case,
            Mr. Tatum also advised the Defendant of this
            fact. Pursuant to Padilla, Mr. Tatum’s
            obligation was to advise the Defendant
            “whether his plea carrie[d] a risk of
            deportation,” Padilla, 130 S. Ct. at 1486, and
            Mr. Tatum met this obligation.

¶ 12   The court went on to state that Juarez’s argument that the

  advice he received was ineffective because Tatum did not tell him

  his guilty plea would trigger “the automatic, mandatory and

  permanent removal provision of deportability” was “an illusory

  distinction” “contrary to the specific language in Padilla.” As the

  court noted, “[t]he only thing the additional language does is create

  a misleading impression of the probability of actual deportation.”

  Indeed, “whether a person who is deportable will actually be


                                    8
  deported is not absolute, certain or guaranteed.” Thus, by advising

  Juarez “that if he took the plea offer in this case he would likely be

  deported, Mr. Tatum accurately related the effect of the plea under

  8 U.S.C. § 1227(a) and also provided additional, correct information

  as to the probability of deportation which was not explicit under the

  statute.”

¶ 13   The court further held that the “other purported deficiencies”

  raised by Juarez — failure to advise he would be permanently

  barred from reentry into the United States, failure to advise his

  guilty plea would destroy a defense to removal called cancellation of

  removal, and failure to advise his guilty plea would subject him to

  mandatory immigration detention without the possibility of bond —

  do not fall under the ambit of consequences that defense attorneys

  are required to advise their clients of in order to provide effective

  representation. “Addressing the first of those purported failures,

  there is no express requirement in Padilla that an attorney must

  advise a defendant whether his plea will make him inadmissible.”

  And regarding the defense of cancellation of removal and mandatory

  detention,




                                      9
             [i]f defense attorneys were required to have
             that degree of familiarity with immigration law,
             then they would presumably also be required
             to understand concepts such as withholding of
             removal, the application of the Convention
             Against Torture, and exemption from
             inadmissibility for refugees. . . . [T]he defense
             position would require an attorney to advise a
             defendant of a collateral consequence to a
             collateral consequence.

¶ 14   The court also concluded that Juarez failed to establish

  prejudice because, “[k]nowing that the best offer he could obtain

  made him eligible for deportation,” Juarez “accepted that risk and

  took the plea.” “He had been advised at least by Mr. Tatum and Mr.

  Whitehead that if he took the plea bargain he would very likely be

  deported and that he would be permanently barred from returning

  to the United States. Knowing these consequences, the Defendant

  still chose to plead guilty.”

             Ultimately, the Defendant’s primary desire was
             to avoid deportation if he could do so. When it
             became clear that the prosecution would not
             offer a plea which would avoid that risk and
             that he would likely lose at trial, he chose what
             he perceived to be his next best option —
             avoiding a felony conviction. The decision was
             a rational one under the circumstances. . . .
             [I]t strongly appears that the Defendant’s
             decision was motivated by the hope that he
             might not actually be deported even though he
             knew this outcome was very likely.


                                    10
       II.     Counsel’s Representation Did Not Fall Below an Objective
                             Standard of Reasonableness

¶ 15         On appeal, Juarez first argues that under Padilla, Tatum

  performed deficiently by failing to inform him that he would be

  subject to “mandatory deportation” if convicted. Thus, although

  counsel did inform him that he was “very likely” to be deported,

  Juarez argues that this advice was deficient because counsel

  should have told him that his conviction “would absolutely result in

  deportation” under 8 U.S.C. § 1227(a)(2)(B)(i) (2012). We disagree

  and conclude that plea counsel acted within Padilla’s objective

  standard of reasonableness. To the extent our holding conflicts

  with the division in People v. Campos-Corona, 2013 COA 23, we

  decline to follow that opinion as an untenable expansion of Padilla.

  See People v. Delgado, 2016 COA 174, ¶ 27 (one division of the

  court of appeals is not bound by the decision of another division in

  a different case).

                             A.   Standard of Review

¶ 16         An appeal from an order denying a claim of ineffective

  assistance of plea counsel presents a mixed question of law and

  fact. We defer to the postconviction court’s findings of fact if



                                        11
  supported by the record, and we review the conclusions of law de

  novo. People v. Stovall, 2012 COA 7, ¶ 18.

                                  B.    Law

¶ 17   “The Sixth Amendment guarantees a defendant the effective

  assistance of counsel at ‘critical stages of a criminal proceeding,’

  including when he enters a guilty plea.” Lee v. United States, 582

  U.S. ___, ___, 137 S. Ct. 1958, 1964 (2017) (quoting Lafler v. Cooper,

  566 U.S. 156, 165 (2012)). In Strickland v. Washington, 466 U.S.

  668 (1984), the Supreme Court set forth a two-pronged test to

  determine whether a criminal defendant is entitled to relief as a

  result of constitutionally deficient representation. “To demonstrate

  that counsel was constitutionally ineffective, a defendant must

  show that counsel’s representation ‘fell below an objective standard

  of reasonableness’ and that he was prejudiced as a result.” Lee,

  582 U.S. at ___, 137 S. Ct. at 1964 (quoting Strickland, 466 U.S. at

  688, 692).

¶ 18   A defense attorney must advise a noncitizen defendant about

  potential immigration consequences to his or her plea:

               When the law is not succinct and
               straightforward . . . a criminal defense attorney
               need do no more than advise a noncitizen


                                       12
             client that pending criminal charges may carry
             a risk of adverse immigration consequences.
             But when the deportation consequence is truly
             clear . . . the duty to give correct advice is
             equally clear.

  Padilla, 559 U.S. at 369 (footnote omitted). Under 8 U.S.C.

  § 1227(a)(2)(B)(i), “[a]ny alien who at any time after admission has

  been convicted of a violation of . . . any law or regulation of a

  State . . . relating to a controlled substance . . . , other than a single

  offense involving possession for one’s own use of 30 grams or less of

  marijuana, is deportable.”

¶ 19   “The severity of deportation — ‘the equivalent of banishment

  or exile,’ Delgadillo v. Carmichael, 332 U.S. 388, 390-91, 68 S. Ct.

  10, 92 L. Ed. 17 (1947) — only underscores how critical it is for

  counsel to inform her noncitizen client that he faces a risk of

  deportation.” Padilla, 559 U.S. at 373-74. Therefore, “the Sixth

  Amendment requires an attorney for a criminal defendant to

  provide advice about the risk of deportation arising from a guilty

  plea.” Chaidez v. United States, 568 U.S. 342, 344 (2013).

                               C.    Analysis

¶ 20   We read Padilla’s requirement that a defense attorney give

  “correct advice,” Padilla, 559 U.S. at 369, as a requirement to give


                                      13
  advice that informs his or her client “about the risk of deportation

  arising from a guilty plea.” This advice need not be unequivocal,

  and it does not require counsel to tell a defendant that his plea will

  subject him to “mandatory removal,” “presumptively mandatory

  deportation,” or “automatic or mandatory deportation.” We reach

  this conclusion because, although a noncitizen defendant is

  deportable for a controlled substance conviction under 8 U.S.C. §

  1227(a)(2)(B)(i), deportation is not guaranteed. See State v. Shata,

  868 N.W.2d 93, 108 (Wis. 2015) (“Although a controlled substance

  conviction makes an alien ‘deportable,’ 8 U.S.C. § 1227(a)(2)(B)(i),

  such a conviction will not necessarily result in deportation.”).

¶ 21   As noted by Whitehead at the postconviction hearing:

            [In] my 40 years of [practicing] immigration
            [law] I learned there is nothing absolutely . . .
            certain or guaranteed with the immigration
            service. And just because a person may be
            mandator[ily] subject to it doesn’t necessarily
            mean they will automatically be placed in
            proceedings.

            ICE takes a look at a case -- on a case by case
            basis as do the trial attorneys with the
            government. And just because the statute
            calls for something doesn’t necessarily mean
            they’ll automatically do it. There is a
            likelihood they will do it. But if you are telling
            somebody there is a guarantee something is


                                    14
              going to happen within the immigration
              confines it may not happen.

  Indeed, “the executive branch has essentially unreviewable

  prosecutorial discretion with respect to commencing deportation

  proceedings, adjudicating cases, and executing removal orders.” Id.

  (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

  482-85 (1999)).

¶ 22     Tatum not only advised Juarez of the risk of deportation, he

  quantified it by stating that it was “probable”3 and that drug

  offenses “will have” negative consequences. Indeed, Juarez

  understood these warnings to mean that “[t]here [was] nothing [he]

  c[ould] do” because he could not get a plea deal “to what [I] have

  to.”

¶ 23     In addition, removal proceedings for Juarez began only after

  he thrice violated the terms of his drug court probation. Once he

  was confined in county jail for violating his probation, ICE placed a

  hold on him and began removal proceedings. This raises the

  question of whether such a proceeding would have been initiated


  3 Webster’s Third New International Dictionary 1806 (2002) defines
  “probable” as “that almost certainly is or will prove to be something
  indicated.”

                                    15
  had Juarez not violated his probation, resulting in his

  incarceration. When viewed in this context, Tatum’s advice to

  Juarez correctly conveyed that the risk of deportation was “very

  likely” and “probable,” and that his guilty plea would have adverse

  consequences. See Commonwealth v. DeJesus, 9 N.E.3d 789, 799

  (Mass. 2014) (Cordy, J., dissenting) (“There was no inaccuracy or

  soft pedaling of advice here.”); Shata, 868 N.W.2d at 111 (The

  defendant’s “attorney gave him advice that there was a ‘strong

  chance’ of deportation, which was absolutely correct. Correct

  advice is not deficient.”).

¶ 24   We acknowledge that a majority of jurisdictions have

  interpreted Padilla as requiring counsel to inform a noncitizen

  defendant that conviction for a deportable offense will either result

  in deportation or subject a defendant to “mandatory deportation.”

  United States v. Al Halabi, 633 F. App’x 801, 803 (2d Cir. 2015)

  (“[W]here the law clearly dictates that removal is presumptively

  mandatory, a defense attorney’s failure to advise his client of that

  fact falls below an objective standard of reasonableness.”); United

  States v. Rodriguez-Vega, 797 F.3d 781, 786 (9th Cir. 2015)

  (“[W]here the law is ‘succinct, clear, and explicit’ that the conviction


                                     16
renders removal virtually certain, counsel must advise his client

that removal is a virtual certainty.” (quoting Padilla, 559 U.S. at

368-69)); United States v. Urias-Marrufo, 744 F.3d 361, 365 (5th Cir.

2014) (“[D]efense counsel has an obligation under the Sixth

Amendment to inform his noncitizen client ‘that the offense to

which he was pleading guilty would result in his removal from this

country.’” (quoting Padilla, 559 U.S. at 360)); United States v.

Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (“[T]he admonishment

did not ‘properly inform’ Akinsade of the consequence he faced by

pleading guilty: mandatory deportation.”); Budziszewski v. Comm’r

of Corr., 142 A.3d 243, 246 (Conn. 2016) (“In circumstances when

federal law mandates deportation and the client is not eligible for

relief under an exception to that command, counsel must

unequivocally convey to the client that federal law mandates

deportation as the consequence for pleading guilty.”); Hernandez v.

State, 124 So. 3d 757, 760, 762 (Fla. 2012) (Where counsel

informed the defendant a plea “could/may” affect his immigration

status, “Hernandez’s counsel was deficient under Padilla for failing

to advise Hernandez that his plea subjected him to presumptively

mandatory deportation.”); Encarnacion v. State, 763 S.E.2d 463,


                                  17
466 (Ga. 2014) (“An attorney’s advice as to the likelihood of

deportation must be based on realistic probabilities, not fanciful

possibilities. . . . [W]e find that where, as here, the law is clear that

deportation is mandatory and statutory discretionary relief is

unavailable, an attorney has a duty to accurately advise his client

of that fact. It is not enough to say ‘maybe’ when the correct advice

is ‘almost certainly will.’”) (citation omitted); DeJesus, 9 N.E.3d at

794 (“We conclude that advising a defendant faced with

circumstances similar to those in this case that he is ‘eligible for

deportation’ does not adequately inform such a defendant that, if he

were to plead guilty . . . then, upon apprehension, his removal from

the United States would be presumptively mandatory under Federal

law.”); Salazar v. State, 361 S.W.3d 99, 103 (Tex. App. 2011) (“[T]he

correct advice, which was that the plea of guilty would result in

certain deportation, was not given. Both the terms ‘likelihood’ and

‘possibility’ leave open the hope that deportation might not occur.

Consequently, these admonishments were inaccurate . . . .”); State

v. Sandoval, 249 P.3d 1015, 1019 (Wash. 2011) (“If the applicable

immigration law ‘is truly clear’ that an offense is deportable, the

defense attorney must correctly advise the defendant that pleading


                                   18
  guilty to a particular charge would lead to deportation.” (quoting

  Padilla, 559 U.S. at 369)); see Campos-Corona, ¶ 13 (“Because

  Campos-Corona was not advised of mandatory removal, we

  conclude that the postconviction court erred in finding counsel’s

  performance was reasonable.”).

¶ 25   We think that the advice given by Tatum meets the general

  spirit of that standard. But if it does not, we nevertheless see no

  fault in it. We cannot say that counsel’s advice must be couched in

  terms of absolute certainty or must incorporate talismanic

  language. Consequently, we find more persuasive cases in those

  jurisdictions that have concluded that because deportation is not

  automatic after conviction for a deportable offense, Padilla does not

  require an attorney to advise a client that he will, with 100%

  certainty, be deported. Chacon v. State, 409 S.W.3d 529, 537 (Mo.

  Ct. App. 2013) (holding defense counsel’s advice that the defendant

  would “very likely be deported and wouldn’t be able to come back”

  was constitutionally effective assistance); Commonwealth v.

  Escobar, 70 A.3d 838, 842 (Pa. Super. Ct. 2013) (“We do not read

  the statute [8 U.S.C. § 1227] or the [Padilla] court’s words as

  announcing a guarantee that actual deportation proceedings are a


                                    19
certainty such that counsel must advise a defendant to that

effect.”); Neufville v. State, 13 A.3d 607, 614 (R.I. 2011) (“Counsel is

not required to inform their clients that they will be deported, but

rather that a defendant’s ‘plea would make [the defendant] eligible

for deportation.’” (quoting Padilla, 559 U.S. at 368)) (alteration in

original); Shata, 868 N.W.2d at 109 (“Because deportation is not an

absolutely certain consequence of a conviction for a deportable

offense, Padilla does not require an attorney to advise an alien

client that deportation is an absolute certainty upon conviction of a

deportable offense, including a controlled substance offense.”); see

DeJesus, 9 N.E.3d at 799-800 (Cordy, J., dissenting) (“[D]eportation

has not been demonstrated to be inevitable in the aftermath of

every plea of guilty that creates either ‘eligibility’ or even a

‘presumption’ of deportation. . . . [T]he deportation proceeding is

contingent on there being an ‘order’ of removal from the Attorney

General of the United States, and there still remain discretionary

avenues to avoid deportation, albeit limited ones.”). Instead, we

conclude, taking into account the language counsel actually uses

and the circumstances of the noncitizen client (such as the ability

to read and understand English), a criminal defense attorney may


                                    20
  provide effective assistance even when using equivocal terms such

  as “likely,” “strong chance,” or “probably.”

             The Padilla Court ultimately “[held] that
             counsel must inform her client whether his
             plea carries a risk of deportation.” Padilla, 559
             U.S. at 374, 130 S. Ct. 1473 (emphasis added).
             The Court did not hold that an attorney must
             inform an alien client that a conviction for a
             deportable offense will absolutely result in
             deportation. The Court did not require an
             attorney to use any particular words, such as
             “inevitable deportation,” or to even convey the
             idea of inevitable deportation.

  Shata, 868 N.W.2d at 98 (alteration in original).

¶ 26   In Campos-Corona, a division of this court held that while both

  counsel and the trial court advised the defendant “his plea could, or

  likely would, result in deportation and difficulty re-entering the

  United States,” ¶ 12, “[b]ecause Campos-Corona was not advised of

  mandatory removal,” ¶ 13, the postconviction court erred in finding

  counsel’s performance reasonable. But the division summarily

  reached this conclusion in two paragraphs with little discussion or

  analysis of Padilla and the concomitant case law. In any event, had

  the division considered the above-mentioned case law and reached

  the same conclusion, we would respectfully disagree. Indeed, we

  would have concluded that counsel’s advice that “a guilty plea


                                    21
  would make renewing [Campos-Corona’s] permanent residence

  status difficult, if not impossible, and that he would likely be

  deported,” id. at ¶ 3, was not constitutionally deficient.

¶ 27   The record supports the postconviction court’s findings that

  Juarez was correctly advised and fully understood the risk of his

  plea prior to pleading guilty. Given Juarez’s acknowledgment that

  he knew he could not reach a plea that would prevent his

  deportation, plus the multiple layers of advice he received (including

  inquiry by the court regarding immigration consequences prior to

  accepting his guilty plea), we are satisfied that Tatum provided

  constitutionally effective representation. As stated by the

  Wisconsin Supreme Court, “[t]he bottom line is that an attorney’s

  advice must be adequate to allow a defendant to knowingly,

  intelligently, and voluntarily decide whether to enter a guilty plea.”

  Shata, 868 N.W.2d at 107. The advice Juarez received from Tatum

  allowed him to do so. The fact that Juarez’s subsequent behavior

  resulted in his incarceration and eventual deportation does not

  make the advice given by his counsel constitutionally ineffective.




                                    22
                          III.   Additional Contentions

¶ 28    Juarez goes on to argue that Tatum was required to advise

  him that his guilty plea would result in lifetime inadmissibility to

  the United States, mandatory detention, and destruction of the

  defense of cancellation of removal.4 We find no support for these

  arguments in the language of Padilla. Indeed, the Padilla Court

  said “[i]mmigration law can be complex, and it is a legal specialty of

  its own” in which “the deportation consequences of a particular plea

  are [often] unclear or uncertain.” 559 U.S. at 369. Padilla does not

  require criminal defense attorneys to function as immigration

  lawyers. Juarez’s arguments to the contrary expand Padilla past

  any commonsense reading. See People v. Vicente-Sontay, 2014 COA

  175, ¶ 38 (“[The defendant] cites no authority . . . nor have we seen

  any, requiring counsel to advise a defendant on the particulars of

  cancellation of removal when the defendant’s eligibility for such

  relief is unclear.”).


  4We note, as did the postconviction court, that the defense of
  cancellation of removal was not available to Juarez because he was
  not a lawful permanent resident of the United States for five years
  prior to his arrest and conviction in this case. See 8 U.S.C.
  §§ 1182(a)(2), 1229b(b)(1)(C) (2012); accord People v. Vicente-Sontay,
  2014 COA 175, ¶¶ 37-38.

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¶ 29   Because we conclude that counsel’s performance was “within

  the range of competence demanded of attorneys in criminal cases,”

  Strickland, 466 U.S. at 687 (quoting McMann v. Richardson, 397

  U.S. 759, 771 (1970)), we need not consider whether counsel’s

  deficient performance prejudiced Juarez in this case.

                            IV.   Conclusion

¶ 30   The order is affirmed.

       JUDGE BOORAS and JUDGE DUNN concur.




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