             Opinions of the Colorado Supreme Court are available to the
         public and can be accessed through the Judicial Branch’s homepage at
           http://www.courts.state.co.us. Opinions are also posted on the
           Colorado Bar Association’s homepage at http://www.cobar.org.


                                                        ADVANCE SHEET HEADNOTE
                                                                      June 17, 2019

                                       2019 CO 59

No. 17SC61, People v. Chavez-Torres — Postconviction Relief—Justifiable Excuse or
Excusable Neglect—Entitlement to a Hearing—Advice by Plea Counsel Regarding the
Immigration Consequences of a Guilty Plea.

       The supreme court agreed to review this case to determine whether a noncitizen

defendant is entitled to a hearing on the timeliness of his Crim. P. 35(c) postconviction

motion when he invokes the justifiable excuse or excusable neglect exception to the

statutory time bar and alleges that plea counsel provided him no advice regarding the

immigration consequences of his plea. It concludes that the answer generally depends

on the specific allegations set forth in the motion; however, when the plea agreement or

the plea hearing transcript is submitted, the trial court should consider it in conjunction

with the allegations advanced.

       The defendant alleged that he had no reason to question or investigate plea

counsel’s failure to advise him regarding the immigration consequences of his plea.

Further, although he was not required to do so, the defendant submitted the plea

agreement and the plea hearing transcript with his motion, and neither referenced

immigration consequences. Therefore, the supreme court concludes that the factual

allegations in the defendant’s motion (which must be assumed to be true), when
considered in conjunction with the plea agreement and the plea hearing transcript, are

sufficient to establish justifiable excuse or excusable neglect for failing to collaterally

attack the validity of his felony conviction within the applicable limitations period.

Accordingly, the defendant is entitled to a hearing.
                   The Supreme Court of the State of Colorado
                   2 East 14th Avenue • Denver, Colorado 80203

                                     2019 CO 59

                         Supreme Court Case No. 17SC61
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 15CA1507

                                     Petitioner:

                        The People of the State of Colorado,

                                          v.

                                    Respondent:

                               Israel Chavez-Torres.

                                Judgment Affirmed
                                      en banc
                                   June 17, 2019


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Carmen Moraleda, Assistant Attorney General
       Denver, Colorado

Attorneys for Respondent:
The Noble Law Firm, LLC
Antony Noble
Matthew Fredrickson
      Lakewood, Colorado




JUSTICE SAMOUR delivered the Opinion of the Court.
¶1     Is a noncitizen defendant entitled to a hearing on the timeliness of his

Crim. P. 35(c) postconviction motion when he invokes the justifiable excuse or excusable

neglect exception and alleges that plea counsel provided him no advice regarding the

immigration consequences of his plea? The answer generally depends on the specific

allegations set forth in the motion. However, when the plea agreement or the plea

hearing transcript is submitted, the trial court should consider it in conjunction with the

allegations advanced.

¶2     In this case, we hold that Israel Chavez-Torres is entitled to a hearing. The factual

allegations in his motion (which we must assume are true), when considered in

conjunction with the plea agreement and the plea hearing transcript, are sufficient to

establish justifiable excuse or excusable neglect for failing to collaterally attack the

validity of his felony conviction within the applicable three-year limitations period.

Chavez-Torres alleged that he had no reason to question or investigate his plea counsel’s

failure to advise him regarding the immigration consequences of his plea. Further,

although he was not required to do so, Chavez-Torres submitted the plea agreement and

the plea hearing transcript with his motion, and neither references the immigration

consequences of his plea.

¶3     In the companion case we announce today, People v. Alvarado Hinojos, 2019 CO 60,

__ P.3d __, we reach the opposite conclusion because we determine that the immigration

advisement contained in the plea agreement, at a minimum, gave Alvarado Hinojos

reason to question the accuracy of his plea counsel’s allegedly erroneous advice


                                             2
regarding the immigration consequences of the plea. Thus, even taking at face value the

allegations in Alvarado Hinojos’s motion, he was on notice at the time of his plea that he

needed to diligently investigate his counsel’s advice and, if appropriate, file a timely

motion challenging the validity of the conviction.

¶4     The court of appeals ruled in this case that Chavez-Torres’s motion merited a

hearing on the applicability of the justifiable excuse or excusable neglect exception. We

agree and therefore affirm its judgment. We remand with instructions to return the case

to the trial court for a hearing.

                           I. Factual and Procedural History

¶5     Chavez-Torres was born in Mexico. He immigrated to the United States with his

mother and three sisters in 1991 when he was thirteen years old. In August 1996, while

in high school, Chavez-Torres pled guilty to first-degree criminal trespass (a class 5

felony). He received a sentence to probation, which he completed successfully. In 2013,

seventeen years after his conviction, the United States Department of Homeland Security

(“DHS”) notified Chavez-Torres that it had initiated removal proceedings against him

based on his conviction. Chavez-Torres promptly consulted an immigration attorney

who advised him that his conviction made him ineligible for cancellation of removal

proceedings.    The immigration attorney thus opined that plea counsel may have

provided Chavez-Torres ineffective assistance by failing to provide an advisement about

the immigration consequences of the plea.

¶6     In May 2015, based on the advice from his immigration attorney, Chavez-Torres

sought postconviction relief by filing a motion pursuant to Crim. P. 35(c) attacking the

                                            3
validity of his conviction. Chavez-Torres asserted that his plea counsel had provided him

ineffective assistance by failing to advise him of the immigration consequences of his

plea, even though she was aware of his immigration status. He acknowledged that his

motion was untimely, as it was not filed within the applicable three-year limitations

period in section 16-5-402(1), C.R.S. (2018). But he argued that the untimeliness resulted

from circumstances constituting justifiable excuse or excusable neglect because he had no

reason to question the         effectiveness of his plea counsel’s assistance—and,

correspondingly, the constitutional validity of his conviction—until he was informed that

DHS had initiated removal proceedings against him. He contended that when he learned

his conviction prevented him from remaining in the United States, he realized that his

plea counsel may have provided him ineffective assistance and that his conviction may

be constitutionally infirm.

¶7     Although the prosecution did not respond to Chavez-Torres’s motion, the trial

court summarily denied it as untimely. It found that the motion was filed beyond the

three-year limitations period in section 16-5-402(1), that the facts alleged were insufficient

to trigger the justifiable excuse or excusable neglect exception set forth in section

16-5-402(2)(d), and that granting the requested relief would greatly prejudice the

prosecution’s case given the lengthy passage of time since the conviction. The trial court

reasoned that the decision in People v. Martinez-Huerta, 2015 COA 69, 363 P.3d 754,

foreclosed a hearing to determine the applicability of the justifiable excuse or excusable

neglect exception to the statutory time bar. In Martinez-Huerta, the court of appeals held

that the defendant’s allegation that he accepted the prosecution’s plea offer based on his

                                              4
plea counsel’s “affirmative, but erroneous” advice regarding the immigration

consequences of the plea entitled him to a hearing to determine whether there were

circumstances amounting to justifiable excuse or excusable neglect for failing to file a

timely Rule 35(c) motion. Id. at ¶ 2, 363 P.3d at 755. Because Chavez-Torres’s claim was

based on his plea counsel’s failure to advise him regarding the immigration consequences

of his plea, not on his plea counsel’s erroneous advice regarding such consequences, the

trial court ruled that Chavez-Torres was not entitled to a hearing as a matter of law.

¶8       Chavez-Torres appealed, and a division of the court of appeals reversed. The

division read Martinez-Huerta differently than the trial court and concluded that

Chavez-Torres had asserted facts which, if true, would establish justifiable excuse or

excusable neglect for failing to bring his Rule 35(c) motion within three years of the date

of his conviction. The division also agreed with Chavez-Torres’s argument that there was

no support in the record for the trial court’s determination that the prosecution would

suffer great prejudice if the relief requested were granted.        Therefore, the division

concluded that Chavez-Torres is entitled to a hearing to determine the applicability of the

justifiable excuse or excusable neglect exception to the three-year time bar.

¶9       The prosecution then petitioned for certiorari review, and we granted the petition.1




1   We granted certiorari to review the following issue:
            Whether the court of appeals erred when it held that a non-citizen
            defendant’s allegation that plea counsel failed to advise him of the
            adverse immigration consequences of a guilty plea was sufficient to
                                              5
                                        II. Analysis

¶10    We begin by articulating the controlling standard of review. We then examine the

time bar in section 16-5-402(1) and the justifiable excuse or excusable neglect exception in

section 16-5-402(2)(d). After reviewing these provisions, we pivot to discuss our decision

in People v. Wiedemer, where we interpreted the subsection (2)(d) exception. 852 P.2d 424,

440–42 (Colo. 1993). We end by applying Wiedemer to the facts alleged by Chavez-Torres,

which we must assume are true, and conclude that, when considered in conjunction with

the plea agreement and the plea hearing transcript, they would establish justifiable

excuse or excusable neglect. Accordingly, we hold that Chavez-Torres is entitled to a

hearing.

                                 A. Standard of Review

¶11    Whether the facts alleged, if true, would constitute justifiable excuse or excusable

neglect pursuant to section 16-5-402(2)(d) so as to entitle the defendant to a hearing is a

question of law. Close v. People, 180 P.3d 1015, 1019 (Colo. 2008).2 Therefore, our review

is de novo. Id.




           warrant a hearing on whether he established justifiable excuse or
           excusable neglect for the untimely filing of his Crim. P. 35(c) motion.
2 We recognize that our case law articulates the governing standard as both whether the
facts alleged, if true, would constitute justifiable excuse or excusable neglect and whether
the facts alleged, if true, could constitute justifiable excuse or excusable neglect. See, e.g.,
Close, 180 P.3d at 1019 (using “would”); id. (using “could”). We clarify today that the
correct standard is whether the facts alleged, if true, would constitute justifiable excuse or
excusable neglect. See Wiedemer, 852 P.2d at 440 n.15.
                                               6
                              B. Sections 16-5-402(1), (2)(d)

¶12    Section 16-5-402(1) establishes a three-year limitations period to bring a collateral

attack against the validity of all felony convictions that are not class 1 felonies.

Subsection (2) provides four exceptions to that time bar, one of which is relevant here:3

       (d) Where the court hearing the collateral attack finds that the failure to seek
       relief within the applicable time period was the result of circumstances
       amounting to justifiable excuse or excusable neglect.

Chavez-Torres invoked this exception, asserting justifiable excuse or excusable neglect

for filing his motion after the limitations period expired.4

                                  C. People v. Wiedemer

¶13    In Wiedemer, we observed that a defendant who invokes the justifiable excuse or

excusable neglect exception in subsection (2)(d) is not required to provide evidentiary

support for his allegations. 852 P.2d at 440 n.15. Instead, his motion must allege facts

which, if true, would entitle him to relief from the time bar. Id. To determine the

applicability of this exception, the trial court has to consider “the particular facts of [the]

case,” mindful of “the overriding concern” under the Due Process Clause that defendants




3 The limited number of exceptions reflects the General Assembly’s “recognition of the
difficulties attending the litigation of stale claims and the potential for frustrating various
statutory provisions directed at repeat offenders, former offenders, and habitual
offenders.” § 16-5-402(2).
4Chavez-Torres did not file a direct appeal. Therefore, his conviction became final for
purposes of subsection (1) in 1997 when the deadline to file a direct appeal expired. See
People v. Hampton, 876 P.2d 1236, 1239–40 (Colo. 1994). Because Chavez-Torres was
convicted of a class 5 felony, he was required to file any collateral attack on his conviction
within three years of the conviction becoming final.

                                              7
must “have a meaningful opportunity to challenge their convictions.” Close, 180 P.3d at

1019.

¶14     We have identified a nonexhaustive list of factors that are relevant to the justifiable

excuse or excusable neglect exception in subsection (2)(d):

        •   whether circumstances or outside influences prevented a timely challenge to a
            conviction;

        •   the extent to which the defendant, having reason to question the
            constitutionality of a conviction, timely investigated its validity and took
            advantage of available avenues of relief;

        •   whether the defendant had any previous need to challenge a conviction and
            either knew it was constitutionally infirm or had reason to question its validity;

        •   whether the defendant had other means of preventing the government’s use of
            a conviction, so that a postconviction challenge was previously unnecessary;
            and

        •   whether the passage of time affects the prosecution’s ability to defend against
            the challenge.

Id. at 1019–20 (citing Wiedemer, 852 P.2d at 441–42).

¶15     But the question here is not whether Chavez-Torres was justifiably excused in

filing his Rule 35(c) motion late or whether any neglect in his failure to file a timely motion

is excusable. The question is narrower: Is Chavez-Torres entitled to a hearing on the

timeliness of his motion?

¶16     Wiedemer provides guidance on this point as well.           There, we said that “a

Crim. P. 35(c) motion must allege facts that if true would establish justifiable excuse or

excusable neglect in order to entitle the moving party to a hearing on the applicability of

this exception to the time bar of § 16-5-402(1).” Wiedemer, 852 P.2d at 440 n.15. Consistent


                                               8
with Wiedemer, in Close, we determined, as a matter of law, that Close’s Rule 35(c)

postconviction motion merited a hearing because it “alleged facts which, if true, would

establish justifiable excuse or excusable neglect.” 180 P.3d at 1022. Thus, whether a

defendant who invokes the subsection (2)(d) exception to the applicable time bar is

entitled to a hearing will generally depend on the specific factual allegations advanced in

his motion.

¶17    However, we now conclude that, while a defendant is not required to provide

evidentiary support for his allegations regarding justifiable excuse or excusable neglect,

the trial court may rely on the plea agreement or the plea hearing transcript in denying

his Rule 35(c) motion without a hearing on timeliness grounds.5 Cf. Kazadi v. People, 2012

CO 73, ¶ 17, 291 P.3d 16, 22 (“A court must hold an evidentiary hearing on a Crim. P.

35(c) motion unless the motion, the files, and the record clearly establish that the

allegations in the motion lack merit and do not entitle the defendant to relief.”). In the

companion case we decide today, Alvarado Hinojos, we determine that Alvarado Hinojos

is not entitled to a hearing on the applicability of the subsection (2)(d) exception because

his plea agreement gave him reason to question and investigate his plea counsel’s

allegedly erroneous advice about the immigration consequences of the plea. Hence,




5We do not address whether the trial court may rely on any other part of the record (or
on any other evidence) to reject without a hearing an assertion related to justifiable excuse
or excusable neglect.


                                             9
when the plea agreement or the plea hearing transcript is submitted, the trial court should

consider it in conjunction with the allegations set forth in the Rule 35(c) motion.

¶18    With these principles in mind, we examine Chavez-Torres’s motion. Our inquiry

is whether he alleged facts which, taken at face value and considered in conjunction with

the plea agreement and the plea hearing transcript, establish justifiable excuse or

excusable neglect and therefore entitle him to a hearing on the applicability of the

subsection (2)(d) exception.

                                     D. Application

¶19    Chavez-Torres advanced factual allegations related to some of the Wiedemer

factors. See Wiedemer, 852 P.2d at 441–42. He asserted that:

       •   he told his plea counsel that he was not a citizen of the United States, but she
           nevertheless advised him to accept the prosecution’s plea offer;

       •   his plea counsel failed to advise him that his plea would prevent him from
           becoming a lawful permanent resident or from applying for cancellation of
           removal proceedings;

       •   he was unaware that his plea would prevent him from remaining lawfully in
           the United States;

       •   he relied on and heeded his plea counsel’s advice in accepting the plea offer;

       •   he did not learn that his conviction carried immigration consequences until
           removal proceedings were initiated against him;

       •   he would have rejected the plea offer and would have insisted on proceeding
           to trial if his plea counsel had properly advised him about the immigration
           consequences of the plea;

       •   he had no reason to question the validity of his conviction or the effectiveness
           of his plea counsel’s assistance until he learned that his conviction prevented
           him from remaining in the United States; and


                                            10
       •   his plea counsel is still an attorney practicing in Colorado (and is presumably
           available to testify at a hearing).

¶20    Thus, Chavez-Torres’s motion set forth factual assertions related to four of the five

Wiedemer factors. These factual assertions, if true, would establish that: (1) there were

circumstances or outside influences that prevented him from filing his motion in a timely

fashion; (2) he had no reason to question the constitutionality of his conviction during the

three-year limitations period; (3) although he had a present need to challenge his

conviction, see People v. Mershon, 874 P.2d 1025, 1036–37 (Colo. 1994), he neither knew his

conviction was constitutionally infirm nor had reason to question its validity; and (4) the

passage of time would not affect the prosecution’s ability to respond to his challenge

because his plea counsel is still a practicing attorney in Colorado (and could presumably

be subpoenaed to testify at a hearing).6 Notably, Chavez-Torres submitted the plea

agreement and the plea hearing transcript with his motion, and neither document

contains any references to immigration consequences. In other words, both documents

corroborate Chavez-Torres’s factual allegations.

¶21    Moreover, according to Chavez-Torres’s motion, the time that elapsed between

the day he learned of his plea’s immigration consequences and the day he filed his motion

did not exceed the amount of time prescribed in section 16-5-402(1) to collaterally attack




6The trial court found that “the prejudice to the state’s case would be great” because of the
passage of time. (Emphasis added.) But the passage-of-time factor relates to the effect
on the prosecution’s ability to defend against the Rule 35(c) motion, not to the effect on the
prosecution’s ability to retry the case in the event the requested relief is granted. Close, 180
P.3d at 1020.

                                              11
his conviction (three years). While this is not one of the factors we included in the

nonexhaustive list in Wiedemer, we find it relevant to the analysis. After all, the justifiable

excuse or excusable neglect exception was never intended to give defendants who invoke

its protection an unfair advantage.

¶22    Under these circumstances, we conclude that Chavez-Torres’s allegations (which

we must assume are true), when considered together with the plea agreement and the

plea hearing transcript, are sufficient to establish justifiable excuse or excusable neglect

for failing to file his Rule 35(c) motion within the three-year limitations period. Therefore,

we hold that he is entitled to a hearing on the applicability of the subsection (2)(d)

exception to the time bar in subsection (1).

¶23    In summarily denying Chavez-Torres’s motion, the trial court concluded that the

court of appeals’ decision in Martinez-Huerta foreclosed a hearing. To the extent that the

court in Martinez-Huerta suggested that a defendant who alleges that his plea counsel

failed to advise him about the immigration consequences of the plea—as opposed to

alleging that his plea counsel provided erroneous advice about the immigration

consequences of the plea—can never be entitled to a hearing, ¶ 17, 363 P.3d at 757, we

disagree with it.

¶24    The prosecution argues that an attorney’s failure to advise a client does not

generally establish justifiable excuse or excusable neglect. We agree. But the cases from

the court of appeals on which the prosecution relies are inapposite because the scope of

our analysis in this case is quite narrow—it is limited to Rule 35(c) claims in which a

noncitizen   defendant     alleges    justifiable   excuse   or   excusable   neglect   under

                                               12
subsection (2)(d) based on his plea counsel’s purported failure to fulfill her legal duty to

provide proper advice about the immigration consequences of his plea. In People v.

Slusher, 43 P.3d 647, 651 (Colo. App. 2001), the court concluded that counsel’s failure to

advise his client about the provisions of the Uniform Mandatory Disposition of Detainers

Act did not amount to justifiable excuse or excusable neglect, and in People v. Alexander,

129 P.3d 1051, 1056 (Colo. App. 2005), the court determined that appellate counsel was

not required by law to advise his client about the time limitations to file a postconviction

motion. Neither of those cases involved plea counsel’s alleged failure to provide proper

advice to a noncitizen client about the immigration consequences of a plea.

¶25    There is a compelling reason why we chart a carefully circumscribed course today

related to the immigration consequences of a plea. Changes to the immigration-law

landscape “have dramatically raised the stakes of a noncitizen’s criminal conviction” and

have rendered removal from the country “an integral part—indeed, sometimes the most

important part—of the penalty that may be imposed” when such a defendant pleads guilty

to certain crimes. Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (emphasis added).

¶26    Recognizing that it is the courts’ responsibility to ensure that no criminal

defendant “is left to the ‘mercies of incompetent counsel,’” id. at 374 (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970)), the U.S. Supreme Court explained in Padilla that

“[t]he weight of prevailing professional norms supports the view that [constitutionally

effective] counsel must advise her client regarding the risk of” removal from the country,

id. at 367. See also People v. Pozo, 746 P.2d 523, 529 (Colo. 1987) (“When defense counsel in

a criminal case is aware that his client is an alien, he may reasonably be required to

                                             13
investigate relevant immigration law” because “thorough knowledge of fundamental

[immigration] principles” may have a “significant impact on a client’s decisions

concerning plea negotiations and defense strategies.”). “The severity of deportation—

‘the equivalent of banishment or exile’— . . . 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 (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390–91 (1947)).           The Sixth

Amendment can require nothing less of an attorney representing a noncitizen criminal

defendant than “to provide advice about the risk of deportation arising from a guilty

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

¶27    Characterizing deportation as “uniquely difficult to classify as either a direct or a

collateral consequence” of a criminal conviction, Padilla, 559 U.S. at 366, the U.S. Supreme

Court has placed counsel’s obligation to inform a “client whether his plea carries a risk

of deportation,” id. at 374, in virtually a class by itself. We see no reason why this same

consideration should not be taken into account in assessing the entitlement of a criminal

defendant to a hearing concerning a claim of justifiable excuse or excusable neglect for

failing to challenge the validity of a conviction within the statutorily prescribed period.

¶28    The prosecution insists, however, that we should reverse the division’s judgment

based on court of appeals cases addressing ignorance of the law, lack of legal assistance,

and the recent discovery of a legal basis to collaterally attack a conviction.           The

prosecution misses the mark here too. Neither People v. White, 981 P.2d 624, 626 (Colo.

App. 1998), where White sought a finding of justifiable excuse or excusable neglect based

on his ignorance of the time bar in subsection (1), nor People v. Vigil, 955 P.2d 589, 591–92

                                             14
(Colo. App. 1997), where Vigil relied on his indigence, ignorance of the law, and lack of

legal assistance to attempt to establish justifiable excuse or excusable neglect, dealt with

plea counsel’s legal duty to advise a noncitizen client about a plea’s immigration

consequences.

¶29    Finally, the prosecution maintains that an ineffective assistance of counsel claim

can constitute justifiable excuse or excusable neglect for purposes of subsection (2)(d)

only when postconviction counsel fails to timely file a Rule 35(c) motion or to otherwise

pursue postconviction relief. Since Chavez-Torres’s ineffective assistance claim is based

on plea counsel’s advice, the prosecution contends that he cannot show justifiable excuse

or excusable neglect under subsection (2)(d). We are unpersuaded because the cases on

which the prosecution leans do not support its position. True, in People v. Valdez, the

court of appeals held that ineffective assistance of postconviction counsel can constitute

justifiable excuse or excusable neglect pursuant to subsection (2)(d). 178 P.3d 1269, 1279

(Colo. App. 2007). It is likewise true that in People v. Chang, the court of appeals concluded

that a finding of ineffective assistance of postconviction counsel would “satisfy

defendant’s obligation to establish justifiable excuse or excusable neglect to avoid the

time bar contained in § 16-5-402.” 179 P.3d 240, 243–44 (Colo. App. 2007). But in neither

case did the court of appeals say that ineffective assistance by postconviction counsel is

the only type of ineffective assistance of counsel that may constitute justifiable excuse or

excusable neglect under subsection (2)(d). Nor has that court ever held that ineffective

assistance by plea counsel cannot establish the justifiable excuse or excusable neglect



                                             15
exception in subsection (2)(d) under any circumstances. And we have never suggested

such a rule either.

¶30    In sum, since the plea agreement and the plea hearing transcript were submitted

to the trial court, Chavez-Torres’s factual allegations must be considered in conjunction

with both documents. Doing so leads us to conclude that Chavez-Torres’s motion merits

a hearing on the applicability of the subsection (2)(d) exception.

                                    III. Conclusion

¶31    We conclude that the division correctly held that the trial court erred in summarily

denying Chavez-Torres’s postconviction motion. Accordingly, we affirm its judgment

and remand with instructions to return the case to the trial court so that it may hold

further proceedings consistent with this opinion.




                                            16
