                                                                          FILED
                                                                       JULY 23, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )         No. 36557-3-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
JUAN CARLOS MENDOZA,                         )
                                             )
                     Appellant.              )

       PENNELL, C.J. — Juan Carlos Mendoza appeals his 1995 conviction for possession

of a controlled substance, arguing it was predicated on an invalid guilty plea. We disagree

and affirm.

                                         FACTS

       In 1994, 19-year-old Juan Carlos Mendoza was charged with possession of a

controlled substance, cocaine. Through appointed counsel, Mr. Mendoza filed a motion to

suppress. The motion was denied for reasons not disclosed in the record on review. Mr.

Mendoza’s attorney subsequently engaged in plea negotiations with the State. As a result,

Mr. Mendoza was able to plead to a reduced charge of possession of a controlled

substance. In May 1995, Mr. Mendoza received a sentence of 11 days’ incarceration.
No. 36557-3-III
State v. Mendoza


      Shortly after his conviction, the United States Immigration and Naturalization

Service issued Mr. Mendoza an order to show cause and notice of hearing, alleging he

was subject to deportation on two bases: (1) entry without inspection, and (2) conviction

for a controlled substance offense. An immigration judge subsequently ordered Mr.

Mendoza’s deportation solely on the ground of entry without inspection.

      In 2011, Mr. Mendoza moved to vacate his 1995 conviction on statutory grounds.

The State did not oppose this motion. The superior court vacated his conviction under

RCW 9.94A.640.1

      In January 2019, Mr. Mendoza filed a notice of appeal of his 1995 conviction. He

argued the appeal was timely because he had never previously been notified of his right of

appeal. The State did not challenge the timeliness of Mr. Mendoza’s appeal. After

considering the matter on the court’s motion docket for dismissal as untimely, our

commissioner found extraordinary circumstances under RAP 18.8(b) to extend the time

for Mr. Mendoza to appeal. The commissioner also granted leave to Mr. Mendoza to

supplement the record on review with documents appended to his memorandum filed in


      1
       The order did not fully extinguish the impact of Mr. Mendoza’s conviction.
“[W]hen a conviction is vacated for rehabilitative reasons,” such as under RCW
9.94A.640, “the conviction remains valid for immigration purposes.” State v. Cervantes,
169 Wn. App. 428, 432, 282 P.3d 98 (2012).


                                            2
No. 36557-3-III
State v. Mendoza


response to the court’s motion on timeliness. Approximately one month later, Mr.

Mendoza moved to supplement the record with declarations from himself and his former

trial counsel. Without conceding the accuracy of the factual assertions in the declarations,

the State did not oppose their inclusion in the record on review. Based on the lack of

objection, the clerk of court granted Mr. Mendoza’s motion.

                                        ANALYSIS

       Mr. Mendoza claims his guilty plea was invalid because it was not accompanied by

constitutionally-mandated advice regarding immigration consequences. The right to

effective assistance of counsel in the Sixth Amendment to the United States Constitution

encompasses this type of claim. State v. Sandoval, 171 Wn.2d 163, 170, 249 P.3d 1015

(2011). To provide constitutionally effective assistance, counsel representing a noncitizen

defendant must provide advice regarding potential immigration consequences of a

proposed guilty plea. Id. A defendant claiming his or her counsel failed to live up to this

obligation must satisfy the dual requirements of deficient performance and prejudice.

Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Failure to establish either of the two requirements precludes relief. In re Pers.

Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).




                                              3
No. 36557-3-III
State v. Mendoza


       Our analysis is focused on the issue of prejudice. In the current context, prejudice

turns on whether Mr. Mendoza has established that, but for counsel’s failure to provide

adequate immigration advice, there was a reasonable probability he would have rejected

the State’s plea offer and insisted on taking his case to trial. Sandoval, 171 Wn.2d at 174-

75. This showing has not been made.

       Most fundamentally, Mr. Mendoza has not alleged that accurate immigration

advice would have prompted him to take his case to trial on the original drug trafficking

charges. Mr. Mendoza merely claims that if he had known he would have been deported

without any chance to stay in the United States, he would have asked his attorney to do

whatever was possible to keep fighting his case. This vague assertion is insufficient.

       Even if Mr. Mendoza could be understood to assert that he was willing to take his

case to trial under the original charges, there is no evidence that such a decision would

have been rational under the circumstances. See Padilla v. Kentucky, 559 U.S. 356, 372

130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (A “reasonable probability” entails showing

a decision to reject a plea offer “would have been rational under the circumstances.”). Mr.

Mendoza was undocumented at the time of his plea. As such, he was removable

regardless of his drug conviction. 8 U.S.C. § 1229a(e)(2)(B). The record contains no

evidence Mr. Mendoza would have been eligible for relief from removal, but for his


                                             4
No. 36557-3-III
State v. Mendoza


conviction. He therefore had no viable immigration benefit that could have been retained

after a successful trial. Cf. Sandoval, 171 Wn.2d at 176 (rejecting plea offer rational when

defendant stood to lose lawful permanent resident status).

       Not only did Mr. Mendoza have no immigration benefits to lose as a result of his

plea, the State’s bargain provided much to be gained. By lowering the charge from

possession with intent to distribute to simple possession, the State’s offer saved Mr.

Mendoza from serving a significant prison sentence.2 In addition, the reduced charge

meant Mr. Mendoza would not be designated an aggravated felon under United States

immigration laws. See former 8 U.S.C. § 1101(a)(43)(B)(1994). This protected him from

at least some adverse immigration consequences. See 8 U.S.C. § 1326(b)(2); U.S.

SENTENCING COMM’N, GUIDELINES MANUAL § 2L1.2(b)(2) (1994) (listing heightened

penalty for illegal re-entry into the United States after an aggravated felony). On the

record before this court, it appears adequate immigration advice would have made Mr.




       2
        At sentencing, Mr. Mendoza faced a range of 0 to 90 days based on an
offender score of 0 and a seriousness level of II. Had he been convicted of possession
with intent to distribute cocaine, his seriousness level would have been VIII and his
range would have been 21 to 27 months. See WASH. SENTENCING GUIDELINES
COMM’N, IMPLEMENTATION MANUAL I-2, I-4 (1994),
http://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentencing_Man
ual_1994.pdf (last visited July 20, 2020).

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No. 36557-3-III
State v. Mendoza


Mendoza’s decision to accept the State’s plea offer more likely, not less so. No prejudice

is established.

                                    CONCLUSION

       The validity of Mr. Mendoza’s original judgment of conviction is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                          _________________________________
                                          Pennell, C.J.

WE CONCUR:



______________________________
Siddoway, J.


______________________________
Korsmo, J.




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                                      No. 36557-3-III

       KORSMO, J. (concurring) — I have signed the majority opinion which rightly

concludes that Mr. Mendoza’s case has no merit. This additional opinion is necessary

because the case never should have progressed to this point. The State1 should have

objected to the effort to expand the record and, regardless of any objection, our clerk

should not have granted the motion because this evidence failed to satisfy RAP 9.11 on

several grounds. But even without those mistakes, this appeal should be dismissed.

       The 1995 conviction that Mr. Mendoza now seeks to challenge was vacated in

2011 at his request. He has not sought to reinstate that conviction. Accordingly, he is not

an aggrieved person who can file an appeal. RAP 3.1. Another consequence of the

vacation is that there was no case that could have been revived if the motion to withdraw

the plea had been successful. There was no case for the superior court to act on and no

case from which this appeal could be taken.2 This case is as moot as it can be.


       1
         In many, if not most, ancient cases, the State also is likely to have a laches claim
to assert.
       2
         To the extent that State v. Cervantes, 169 Wn. App. 428, 282 P.3d 98 (2012),
permits an appeal from a vacated conviction, I disagree. The consequences flowing from
a Washington conviction are a function of Washington law, and Mr. Mendoza simply has
not explained how he was still aggrieved under Washington law. How other jurisdictions,
including the federal courts, apply a vacated Washington conviction is a function of their
law, not ours. The consequences of a guilty plea on immigration status are significant
and, therefore, a defendant must be advised about them (when relevant) before a plea is
entered. A change in federal law might explain a local defendant’s motivation to
challenge a conviction, but it does not change the effect of a vacated conviction in
Washington. Nor do such changes retroactively change proper legal advice given in 1995.
No. 36557-3-III
State v. Mendoza—concurrence


       Mr. Mendoza has attempted to convert his out of time appeal into a personal

restraint petition, a device that was itself untimely. RCW 10.73.090. The majority

opinion rightly explains why any PRP would fail, but I believe it is necessary to clarify

that we should not tolerate this backdoor effort to evade the time bar statute.

       RAP 16.4(b) permits a PRP when a person is under “restraint” due to a prior

conviction. The conviction in this case was vacated in 2011 at Mr. Mendoza’s request. It

imposes no further disabilities on him. For that reason this court also could not grant him

any relief, a requirement of RAP 16.4(d). For both reasons, any PRP would need to be

dismissed without getting to a reference hearing to test the truth of the allegations.

       With these observations, I concur.



                                               _________________________________
                                                       Korsmo, J.




                                              2
