#26257-a-LSW

2013 S.D. 46

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

PABLO GARCIA,                             Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    BEADLE COUNTY, SOUTH DAKOTA

                                 ****

                    THE HONORABLE JON R. ERICKSON
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

DOUGLAS P. BARNETT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


GINA J. ROGERS
Aberdeen, South Dakota                    Attorney for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 6, 2012

                                          OPINION FILED 06/26/13
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WILBUR, Justice

[¶1.]         Pablo Garcia appeals from the trial court’s denial of his motion to re-

open and vacate judgment. In applying the principles set forth in Teague v. Lane,

489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the trial court determined

that the rule announced in the United States Supreme Court’s holding in Padilla v.

Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) was a new rule

that does not apply retroactively. We affirm.

                      FACTS AND PROCEDURAL HISTORY

[¶2.]         Garcia was born in Mexico. Prior to his first birthday, Garcia’s mother

moved with Garcia to the United States. Following this move, Garcia has spent the

majority of his life, 35 years, in the United States.

[¶3.]         On September 26, 2003, Garcia was indicted for possession with intent

to distribute more than one pound of marijuana, a Class 3 felony, in violation of

SDCL 22-42-7. In addition, Garcia was indicted for possession of one to ten pounds

of marijuana, a Class 4 felony, in violation of SDCL 22-42-6. On October 1, 2003,

the State filed a part two information alleging that Garcia had previously been

convicted of two felonies, subjecting him to a possible enhanced sentence under

SDCL 22-7-7.

[¶4.]         Garcia, represented by counsel, 1 pleaded guilty to possession of one to

ten pounds of marijuana under SDCL 22-42-6 on January 13, 2004. In exchange for

Garcia’s guilty plea, the State dismissed the remaining charge and the part two

information. Additionally, prior to sentencing, a presentence investigation was


1.      Garcia’s appellate counsel did not represent him at his plea hearing.

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conducted and a report was prepared. The report erroneously indicated that Garcia

was born in Uvalde, Texas.

[¶5.]          Garcia was sentenced to a three-year penitentiary term. A judgment

of conviction was filed on February 24, 2004, and a notice of entry of judgment of

conviction was filed on February 27, 2004.

[¶6.]          In November 2005, the United States commenced removal proceedings

against Garcia. The notice to appear in the removal proceedings alleged that

Garcia had been admitted to the United States, but because he had been convicted

of an aggravated felony, he was subject to removal from the United States. A

warrant of removal/deportation was issued on January 3, 2006, resulting in Garcia’s

deportation.

[¶7.]          Following Garcia’s removal, a new permanent resident card arrived at

Garcia’s South Dakota residence, where Garcia’s fiancée and children continued to

reside. Garcia re-entered the United States in September 2006. On January 18,

2007, the South Dakota Department of Corrections discharged Garcia from its

supervision.

[¶8.]          On September 20, 2011, Garcia acknowledged his receipt of a notice of

intent/decision to reinstate the prior removal/deportation order. Garcia was then

charged by the United States Attorney for the District of South Dakota with illegal

re-entry to the United States, but the charge was dismissed on October 11, 2011.

[¶9.]          Nearly four years and ten months after he was released from the

Department of Corrections’ supervision, Garcia filed a motion to re-open and vacate

judgment regarding his February 2004 conviction for felony possession of


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marijuana. Relying on the United States Supreme Court’s holding in Padilla,

Garcia argued that his counsel was deficient under the Sixth Amendment and that

Garcia would not have pleaded guilty if his counsel would have advised him of the

potential deportation consequences.

[¶10.]       Prior to the motion hearing, the trial court contacted Garcia’s plea

counsel via email and inquired as to counsel’s advice to Garcia of the potential

deportation consequences of a guilty plea. Counsel responded: “I am just about

100% sure that I did not advise him of the deportation consequences. I remember

him and his family and I did not ever contemplate that he was not a U.S. citizen,

therefore, I would not have had a reason to advise him.”

[¶11.]       Subsequently, the trial court issued a memorandum decision denying

Garcia’s motion. In applying the principles set forth in Teague, the trial court held

that Padilla announced a new rule that did not apply retroactively.

[¶12.]       Garcia appeals the following issues:

             1.     Whether the holding in Padilla is a new rule for the purpose of
                    determining whether it applies retroactively.

             2.     Whether Padilla shall be applied retroactively to cases decided
                    prior to the decision in Padilla.

                             STANDARD OF REVIEW

[¶13.]       Whether Padilla applies retroactively to a conviction that was final at

the time Padilla was decided is a legal question that we review de novo. State v.

Houston, 702 N.W.2d 268, 270 (Minn. 2005) (reviewing de novo whether Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), applied

retroactively to a conviction that was final at the time Blakely was decided).


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                           ANALYSIS AND DECISION

[¶14.]       On appeal to this Court, Garcia contends that the rule announced in

Padilla constitutes an old rule because it is a mere extension of the Sixth

Amendment of the United States Constitution and the South Dakota Constitution.

Accordingly, Garcia argues that the rule in Padilla applies retroactively to his case.

In support of his position, Garcia testified at the motion hearing that Garcia

advised his counsel that he was not a citizen of the United States and asked about

the possibility of pleading guilty. Garcia stated that his counsel “didn’t even

acknowledge [Garcia’s] question” and “didn’t give [Garcia] the proper answer that

[he] wanted when [he] asked [his counsel] that.” In providing further elaboration as

to his answer, Garcia then testified that his counsel did not give him an answer at

all. In response to Garcia’s arguments, the State contends that the rule in Padilla

was a new rule that does not apply retroactively.

[¶15.]       In 2010, the United States Supreme Court in Padilla held that the

Sixth Amendment requires criminal defense attorneys to inform noncitizen

defendants of the risk of deportation arising from guilty pleas. 559 U.S. at ___, 130

S. Ct. at 1486. Faced with a jurisdictional split over whether this rule applied

retroactively to cases that became final prior to Padilla, the United States Supreme

Court granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011),

cert. granted, ___ U.S. ___, 132 S. Ct. 2101, 182 L. Ed. 2d 867 (2012).

[¶16.]       In Chaidez v. United States, the United States Supreme Court held

that Padilla announced a new rule that does not have retroactive effect. ___ U.S.

___, ___, 133 S. Ct. 1103, 1111, 1113, 185 L. Ed. 2d 149 (2013). “Under Teague,


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defendants whose convictions became final prior to Padilla . . . cannot benefit from

its holding.” Id. at __, 133 S. Ct. at 1113. Stated another way, the rule announced

in Padilla only applies to cases that became final after Padilla. See id.

[¶17.]       This Court, however, has previously deemed “the Teague rule to be

unduly narrow as to what issues it will consider on collateral review.” Cowell v.

Leapley, 458 N.W.2d 514, 518 (S.D. 1990). See Danforth v. Minnesota, 552 U.S. 264,

281, 128 S. Ct. 1029, 1042, 169 L. Ed. 2d 859 (2008) (citing Cowell as an example of

a state court decision that has “understood the Teague rule as binding only federal

habeas courts, not state courts”). We opined that “[w]hile the substance of what is

to be applied is a federal constitutional matter, the decision on what criteria to use

to determine prospective or retroactive application is a nonconstitutional state

decision.” Cowell, 458 N.W.2d at 517. Accordingly, we use “the following criteria to

determine whether a particular decision should be given [retroactive] effect [in

South Dakota]: ‘(1) The purpose of the decision, (2) reliance on the prior rule of law,

and (3) the effect upon the administration of justice.’” Id. at 517 (quoting

McCafferty v. Solem (McCafferty III), 449 N.W.2d 590, 593 (S.D. 1989), superseded

on other grounds by State v. Raymond, 540 N.W.2d 407, 409 (S.D. 1995)). Thus,

while the trial court relied on the Teague factors in its analysis of the Padilla

decision, we adhere to the Cowell precedent in analyzing whether Padilla applies

retroactively.

[¶18.]       a. The Purpose of the Decision

[¶19.]       The purpose of the Padilla decision was to require, in accordance with

the Sixth Amendment, criminal defense attorneys to inform noncitizen clients of the


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risks of deportation arising from guilty pleas. 559 U.S. at ___, 130 S. Ct. at 1486.

The United States Supreme Court reasoned that:

             changes to our immigration law have dramatically raised the
             stakes of a noncitizen’s criminal conviction. The importance of
             accurate legal advice for noncitizens accused of crimes has never
             been more important. These changes confirm our view that, as a
             matter of federal law, deportation is an integral part – indeed,
             sometimes the most important part – of the penalty that may be
             imposed on noncitizen defendants who plead guilty to specified
             crimes.

559 U.S. at __, 130 S. Ct. at 1480 (footnote omitted). Additionally, this Court has

said that “[t]he reason to apply a new decision retroactively is when the new

constitutional decision is designed to improve the accuracy of criminal trials.”

Cowell, 458 N.W.2d at 518.

[¶20.]       Nothing from our reading of Padilla suggests that the purpose of this

rule is designed to improve the accuracy of criminal trials or enhance the reliability

of the fact-finding process. Padilla does little to show the actual guilt or innocence

of the individual. Rather, Padilla’s purpose concerns counsel’s advice to a

defendant regarding the potential penalty – deportation – that may be imposed as a

result of a guilty plea. Thus, the Padilla decision was not designed to improve the

accuracy of criminal trials nor to enhance the fact-finding process.

[¶21.]       b. Reliance on the Prior Rule of Law

[¶22.]       At the time of Garcia’s guilty plea in 2004, this Court had not yet

addressed whether the failure to advise a defendant of the risk of deportation

amounted to ineffective assistance of counsel. In our 2005 decision in Nikolaev v.

Weber, we held that “the overwhelming majority of courts to have addressed the

question have held that deportation is a collateral consequence of the criminal

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process, and hence that, nothing else appearing, the failure to advise the defendant

of the possibility of deportation does not amount to ineffective assistance of

counsel.” 2005 S.D. 100, ¶ 11, 705 N.W.2d 72, 76 (quoting State v. Zarate, 651

N.W.2d 215, 222 (Neb. 2002)), abrogated by Chaidez, ___ U.S. at ___, 133 S. Ct. at

1113. Subsequently, we denied Nikolaev relief on the same basis. See Nikolaev,

2005 S.D. 100, ¶¶ 9-14, 705 N.W.2d at 75-77. Accordingly, the rule of law

pronounced in Nikolaev in 2005 was exactly the opposite of the rule announced in

Padilla in 2010.

[¶23.]         Even though in 2004 at the time of Garcia’s guilty plea, we had not yet

addressed whether the failure to advise a defendant of the risk of deportation

amounted to ineffective assistance of counsel, the almost universal holding among

federal and state courts at that time was that the failure to advise a defendant of

the deportation consequences of a guilty plea was not ineffective assistance of

counsel. 2 Consequently, given the body of state and federal case law at the time of



2.       As noted in Nikolaev v. Weber, the following cases decided prior to 2004 are
         examples of the state and federal courts that held that failure to inform a
         defendant of the potential deportation consequences of a guilty plea did not
         constitute ineffective assistance of counsel:

               United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United
               States v. Gonzalez, 202 F.3d 20, 28 (1st Cir. 2000); U[nited]
               S[tates] v. Banda, 1 F.3d 354 (5th Cir. 1993); U[nited] S[tates] v.
               Del Rosario, 902 F.2d 55 (D.C. Cir. 1989); U[nited] S[tates] v.
               George, 869 F.2d 333 (7th Cir. 1989); U[nited] S[tates] v.
               Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Campbell,
               778 F.2d 764 (11th Cir. 1985); United States v. Santelises, 509
               F.2d 703 (2nd Cir. 1975); People v. Pequeno, . . . 786 N.E.2d
               1071, 1076 ([Ill. App. Ct.] 2003); State v. Muriithi, . . . 46 P.3d
               1145 ([Kan.] 2002); State v. Montalban, 810 So. 2d 1106 (La.
               2002); People v. Davidovich, . . . 618 N.W.2d 579 ([Mich.] 2000);
                                                               (continued . . .)
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Garcia’s plea, defense counsel in South Dakota would have justifiably relied upon

this almost universal holding – the failure to advise a defendant of the deportation

consequences of a guilty plea did not constitute ineffective assistance of counsel.

[¶24.]         Furthermore, Garcia’s defense counsel in his 2004 guilty plea would

not have had a reason to question Garcia’s citizenship. Counsel’s belief is supported

by the presentence investigation report, which stated that Garcia was born in the

United States, and by Garcia’s own admission at the motion hearing that he was 35

years old and had lived in the United States for 35 years. Garcia also had two prior

felony drug convictions and had not been previously deported. Thus, at the time of

Garcia’s guilty plea, Garcia’s counsel justifiably relied on the almost universal case

precedent in state and federal courts and the information available to him.

[¶25.]         c. The Effect Upon the Administration of Justice

[¶26.]         The retroactive application of Padilla would carry with it the potential

to have a disruptive effect on the criminal justice system. Specifically, there exists

the likelihood that applying Padilla retroactively would undermine the finality of

any guilty plea in South Dakota made prior to and in contradiction to the United

States Supreme Court’s holding in Padilla. We are mindful in our analysis of this

criterion, however, that the United States Supreme Court dismissed concerns that

________________________
(. . . continued)
               State v. Rosas, . . . 904 P.2d 1245 ([Ariz. Ct.] App. 1995); People
               v. Ford, . . . 657 N.E.2d 265 ([N.Y.] 1995); State v. Dalman, 520
               N.W.2d 860 (N.D. 1994); Com[monwealth] v. Frometa, . . . 555
               A.2d 92 ([Pa.] 1989); Mott v. State, 407 N.W.2d 581 (Iowa 1987);
               State v. Santos, . . . 401 N.W.2d 856 ([Wis. Ct.] App. 1987);
               Tafoya v. State, 500 P.2d 247 (Alaska 1972).

         2005 S.D. 100, ¶ 11, 705 N.W.2d at 76.

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its ruling in Padilla would undermine the finality of pleas. 559 U.S. at ___, 130 S.

Ct. at 1484-85. 3

                                  CONCLUSION

[¶27.]         In weighing the three Cowell criteria together, we will not apply the

United States Supreme Court’s decision in Padilla retroactively to cases that were

decided prior to Padilla. This includes Garcia’s case. Additionally, in spite of the

fact that the trial court used the principles set forth in Teague instead of the Cowell



3.       The United States Supreme Court noted that,

               We have given serious consideration to the concerns that the
               Solicitor General, respondent, and amici have stressed
               regarding the importance of protecting the finality of convictions
               obtained through guilty pleas. We confronted a similar
               “floodgates” concern in Hill, but nevertheless applied Strickland
               to a claim that counsel had failed to advise the client regarding
               his parole eligibility before he pleaded guilty.

               A flood did not follow in that decision’s wake. Surmounting
               Strickland’s high bar is never an easy task. Moreover, to obtain
               relief on this type of claim, a petitioner must convince the court
               that a decision to reject the plea bargain would have been
               rational under the circumstances. There is no reason to doubt
               that lower courts—now quite experienced with applying
               Strickland—can effectively and efficiently use its framework to
               separate specious claims from those with substantial merit.

               It seems unlikely that our decision today will have a significant
               effect on those convictions already obtained as the result of plea
               bargains. For at least the past 15 years, professional norms
               have generally imposed an obligation on counsel to provide
               advice on the deportation consequences of a client’s plea. We
               should, therefore, presume that counsel satisfied their obligation
               to render competent advice at the time their clients considered
               pleading guilty.

         Padilla, 559 U.S. at ___, 130 S. Ct. at 1484-85 (internal citations and
         explanatory parentheticals omitted).

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criteria, we affirm the trial court’s decision. See Cowell, 458 N.W.2d at 519

(affirming the trial court’s decision even though it used Teague in its analysis of the

potential retroactive effect of the United States Supreme Court’s decisions in

Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), and

Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988)).

[¶28.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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