                                                                          FILED
                                                                      JANUARY 28, 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. 36109-8-III
                                               )         (consolidated with
                        Respondent,            )         No. 36425-9-III)
                                               )
                 v.                            )
                                               )
 MARIA FRANCISCA CONTRERAS,                    )         UNPUBLISHED OPINION
                                               )
                        Appellant.             )
                                               )
                                               )
 In the Matter of the Personal Restraint of    )
                                               )
 MARIA FRANCISCA CONTRERAS,                    )
                                               )
                        Petitioner.            )

       SIDDOWAY, J. — Post-Padilla v. Kentucky,1 we are presented with another

contention that a criminal defense lawyer provided ineffective assistance of counsel by

failing to advise a client of immigration consequences of a guilty plea. Maria Francisca

Contreras seeks relief from personal restraint in the form of her 2003 conviction of

welfare fraud—a type of first degree theft that requires willfully fraudulent conduct—

supported by a declaration that her trial lawyer failed to advise her that the plea would




       1
           559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


render her inadmissible and ineligible to file for cancellation of removal and adjustment

of status, her “one chance to remain in the United States.” Personal Restraint Petition

(PRP) at 5.

       Given a persuasive showing that Ms. Contreras’s lawyer knew or could have

determined that the adverse immigration consequence was material to Ms. Contreras, that

the consequence was truly clear, that the lawyer failed to research and advise Ms.

Contreras of the clear consequence, and a reasonable reason to believe that Ms. Contreras

would have taken her chances at trial, we grant Ms. Contreras her requested relief and

remand for proceedings consistent with this opinion.

                    FACTS AND PROCEDURAL BACKGROUND

       In 2003, Maria Francisca Contreras was charged with first degree theft (welfare

fraud), first degree identity theft, and witness tampering. The charges arose from Ms.

Contreras’s application for and receipt of food stamps and public assistance, which she

supported with false, sworn, representations. The Department of Social and Health

Services discovered after several years that Ms. Contreras’s husband was employed

during the period she received public assistance and that Social Security numbers she

used did not belong to her husband or herself. When confronted, Ms. Contreras admitted

that her husband signed the documents because she told him they were for medical

coupons.




                                             2
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       Gail Siemers was appointed to represent Ms. Contreras, who originally entered a

plea of not guilty. Two months later, Ms. Contreras pleaded guilty to the count of first

degree theft under RCW 9A.56.030(1)(a) and 74.08.331. The latter provision imposes

criminal liability for only willful or fraudulent conduct.

       The plea agreement identified the standard range for Ms. Contreras as 0-60 days

and the State’s recommendation that she serve 15 days, converted to work crew or

community service. It included the State’s recommendation to dismiss the other two

counts if Ms. Contreras paid back half the money she obtained in public assistance by a

date prior to the change of plea hearing (half being $2,149.50).

       Consistent with a longstanding statutory requirement, Ms. Contreras’s statement

on plea of guilty disclosed that for a noncitizen, pleading guilty to a crime “is grounds for

deportation, exclusion from admission to the United States, or denial of naturalization.”

Clerk’s Papers (CP) at 25. While Ms. Contreras reads and writes English, she was

provided a Spanish interpreter for her change of plea hearing. The interpreter signed a

declaration stating that Ms. Contreras indicated her understanding that her plea “could

result in deportation if the Immigration and Naturalization Service pursued such actions,”

and that she faced “the potential for deportation.” CP at 31. It contained Ms. Siemers’s

acknowledgment that she had read and discussed the statement with Ms. Contreras and

believed Ms. Contreras was competent and fully understood the statement.



                                              3
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       At the change of plea hearing, Ms. Contreras affirmed that she had read and signed

the plea agreement and did not have any questions. After questioning her and learning

that Ms. Contreras was not a citizen of the United States or legally in the country, the

court asked if she understood that by pleading guilty to this charge, the conviction “may

affect your ability to stay in this country?,” to which she answered, “Yes.” CP at 63. The

trial court accepted Ms. Contreras’s guilty plea.

       At Ms. Contreras’s sentencing hearing, a letter she had written was read to the trial

court by the interpreter. It stated, “I want to ask you not to be too hard on me when you

impose judgment because I know that I did something bad, but I had very great reasons.”

CP at 69. The letter said she had needed money to pay for babysitters for her children

while she attended school to obtain her GED[2] and CNA,[3] because she “wanted to get

ahead to be able to take care of my children.” Id. It asked,

              Judge, sir, please help me. I want to pay the State, but in payments
       because they helped me a lot. But I don’t want to have a criminal record
       because maybe I’ll never be able to get my papers fixed to be able to stay in
       this country. And all the time that I was in school will not count and that
       was through a lot of work and a lot of effort.

CP at 69-70 (emphasis added).

       Ms. Siemers also addressed Ms. Contreras’s concern about immigration

consequences, telling the court that “Maria has been very concerned about how this is


       2
           General equivalency diploma.
       3
           Certified nursing assistant.

                                             4
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


going to make her future turn out. She does understand that she could very well be

deported.” CP at 70. She told the court, “I have referred her to the immigration lawyers

to address that problem even before we entered the plea.” Id.

       It was revealed at the plea hearing that Ms. Contreras had so far been unable to

pay the $2,149.50 required as a condition of the plea, but the State had given her one

more day to pay, failing which it would withdraw the plea agreement. By the time of

sentencing, she had paid $2,000.00 and she delivered another $100.00 in cash at

sentencing. The prosecutor accepted it as sufficient, stating that the State “appreciate[d]

the effort that it took to come up with . . . $2,100 in cash to pay half the restitution.”

CP at 72.

       The trial court accepted the plea agreement and sentenced Ms. Contreras to 15

days on work crew. In 2004, Ms. Contreras completed her work crew requirements. She

completed payments of the remaining restitution and LFOs4 (she owed a remaining

principal amount of $3,642.50) and obtained a certificate of discharge in August 2013.

       In August 2014, Ms. Contreras moved for relief from her judgment on the basis

that she received ineffective assistance of counsel under Padilla. The trial court denied

the motion, stating in its order that she had been properly advised as Padilla had not been

decided at the time of her plea and sentencing, the United States Supreme Court had held



       4
           Legal financial obligations.

                                               5
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


that Padilla did not apply retroactively, her collateral attack was untimely under RCW

10.73.090 and 10.73.100, and she had not demonstrated a deficiency in the guilty plea

statement or judgment that would justify setting either aside.

       In 2015, the Washington Supreme Court decided that while Padilla created a new

rule under federal law for retroactivity purposes, Washington statutes had long required

that criminal defendants be advised of immigration consequences of a guilty plea, so

Padilla simply applied a Washington lawyer’s duty to a specific concern. In re Pers.

Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 100-03, 351 P.3d 138 (2015). It therefore

would apply retroactively to Washington defendants. Addressing the distinct issue of

whether Padilla was a retroactively applicable “significant change in [the] law” that

overcomes the one-year time bar to collateral relief provided by RCW 10.73.100(6), the

court held that it was. Tsai, 183 Wn.2d at 103. This is because several Washington

appellate decisions issued before Padilla appeared to foreclose the possibility that the

unreasonable, prejudicial failure to provide advice on deportation consequences could

ever be ineffective assistance of counsel. Id. at 105.

       In 2018, represented by new counsel, Ms. Contreras moved to vacate her sentence

and withdraw her guilty plea, again asserting ineffective assistance of counsel and

arguing that it was now clear her motion was not time-barred. The State opposed the

motion solely on the basis that Ms. Contreras had been informed of the possibility of

immigration consequences at the plea hearing and at sentencing. In response to the

                                             6
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


State’s objection, Ms. Contreras submitted a declaration in which she declared that Ms.

Siemers

         never talked to me about my immigration status. She never talked with me
         about whether my conviction would be any definite problem for keeping
         my immigration status. The only things I was ever told about immigration
         consequences by the court was in the papers that I signed with the court’s
         interpreter. I remember him, because there were some words that he used
         that I did not understand. These may have been words that were to do with
         court that I would not have ever used before.

         . . . The forms that I signed were what the interpreter had told me—that
         being deported wasn’t an automatic thing that would be the result of my
         guilty plea.

CP at 188.

         The trial court denied Ms. Contreras’s motion, citing the following grounds in its

order:

   1) [Ms. Contreras] affirmed at her change of plea that she understood she
      faced immigration consequences due to her citizenship status. At
      sentencing, [Ms. Contreras] additionally reflected she was concerned about
      immigration consequences, but she agreed to proceed. [Ms. Contreras’s]
      attorney made a record that [Ms. Contreras] had been referred to an
      immigration attorney prior to change of plea and was aware of the potential
      immigration consequences she faced. Therefore, [Ms. Contreras] was
      properly advised of the immigration consequences of the plea, consistent
      with Padilla . . . and State v. Sandoval, 171 Wn.2d 163, 249 P.2d 1015
      (2001).

   2) [Ms. Contreras] has failed to show any deficiency in either the Guilty Plea
      statement or the Judgment and Sentence that would justify setting the
      Judgment aside pursuant to CrR 7.8.

CP at 193-94.



                                              7
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       Ms. Contreras appealed. Several months later, she filed a personal restraint

petition seeking relief for Ms. Siemers’s allegedly ineffective assistance. Her motion to

consolidate her direct appeal and the PRP was granted.

       Ms. Contreras’s PRP lacked a declaration from Ms. Siemers, although it explained

efforts to obtain a declaration from her. In responding to the PRP, the State obtained and

filed a declaration from Ms. Siemers. In it, Ms. Siemers asserted that she, the interpreter,

and the trial court all informed Ms. Contreras about the “possible consequences of a

conviction” and “the issue of possible removal from the United States,” and that Ms.

Contreras “would have had to tell me through the interpreter, repeatedly, that she

understood the possible ramification of deportation.” Resp’t’s Br., App. A (Decl. of

Siemers at 2-3) (emphasis added). The declaration did not respond to Ms. Contreras’s

charge that Ms. Siemers “never talked to me about . . . whether my conviction would be

any definite problem for keeping my immigration status.” CP at 188 (emphasis added).

                                       ANALYSIS

       We address our primary attention to Ms. Contreras’s PRP. Where relevant facts

about counsel’s representation do not appear in the trial court record, necessitating a PRP,

a petitioner “has not ‘already had an opportunity to appeal to a disinterested judge,’” and

a requirement to show actual and substantial prejudice from a constitutional error does

not apply. Sandoval, 171 Wn.2d at 168-69 (quoting In re Pers. Restraint of Grantham,

168 Wn.2d 204, 214, 227 P.3d 285 (2010)). The petitioner’s burden is to show only that

                                             8
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


she is entitled to relief for one of the reasons listed in RAP 16.4(c). Id. (citing Grantham,

168 Wn.2d at 214). A petitioner may not rely on conclusory allegations, but must

establish facts entitling her to relief with a preponderance of competent, admissible

evidence. In re Pers. Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 636, 362 P.3d 758

(2015).

       Effective assistance of counsel is guaranteed by both the federal and state

constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz,

127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective assistance of

counsel, a defendant must show two things: “(1) defense counsel’s representation was

deficient, i.e., it fell below an objective standard of reasonableness based on

consideration of all the circumstances; and (2) defense counsel’s deficient representation

prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s

unprofessional errors, the result of the proceeding would have been different.” State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (emphasis omitted) (citing

State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).

       The State opposes Ms. Contreras’s request for relief on grounds that because she

failed to appeal the trial court’s denial of her CrR 7.8 motion in 2014, that order is law of

the case and forecloses relitigation of her Padilla claim. Alternatively, it argues that she

received effective assistance of counsel.

                                              9
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


I.     THE LAW OF THE CASE DOCTRINE DOES NOT FORECLOSE MS. CONTRERAS’S
       PETITION

       The State cites several reported decisions in support of its argument that because

Ms. Contreras failed to appeal the 2014 denial of her CrR 7.8(b) motion, the denial order

is law of the case. All are inapposite. Two—In re Personal Restraint of Brown, 143

Wn.2d 431, 445, 21 P.3d 687 (2001) and In re Personal Restraint of Taylor, 105 Wn.2d

683, 688, 717 P.2d 755 (1986)—deal with the ability of a petitioner to seek review of an

issue previously raised and rejected on direct appeal. The presently pending appeal is

Ms. Contreras’s first direct appeal. Moreover, a petitioner is able to renew a ground for

relief that was raised and rejected on direct appeal if the interests of justice require

reconsideration, and the interests of justice are served if there has been an intervening

material change in the law. State v. Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).

       The third case cited by the State—Lutheran Day Care v. Snohomish County, 119

Wn.2d 91, 113, 829 P.2d 746 (1992)—speaks of the law of the case doctrine generally,

identifying three senses in which the term “law of the case” is used. The court points out

that the doctrine was “entirely inapplicable” to the issues on appeal because two senses in

which “law of the case” is used require a prior appellate decision and the third sense

requires jury instructions. The same is true here. There is no prior appellate decision that

the State points to as law of the case. No jury instructions are at issue.




                                              10
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       The relevant law, which permits review of the ineffective assistance of counsel

issue raised by Ms. Contreras’s petition, is found in RCW 10.73.140 and RAP 16.4(d).

RCW 10.73.140 provides in relevant part that the Court of Appeals will not consider a

ground for review that was raised and rejected in a “previously filed . . . petition for

personal restraint.” RAP 16.4(d) similarly provides that no more than one “petition” for

similar relief on behalf of “the same petitioner” will be entertained without good cause

shown. Unlike the prior filing of a PRP, a petitioner’s prior filing of a postconviction

motion for collateral relief with the trial court does not require us to reject a first PRP.

In re Pers. Restraint of Bailey, 141 Wn.2d 20, 28, 1 P.3d 1120 (2000).

II.    MS. CONTRERAS DEMONSTRATES INEFFECTIVE ASSISTANCE OF COUNSEL

       As Ms. Contreras emphasizes, she admits receiving and being aware of the

disclosure of possible immigration consequences contained in her statement on plea of

guilty. And her own letter to the trial court expressed her fear that “maybe” she would

not be able to get her papers fixed to be able to stay in the country.

       She argues that effective assistance of counsel required more: it required advice

that the type of first degree theft to which she was pleading guilty not only “maybe”

would prevent her from getting her “papers fixed,” it would clearly prevent her from

getting her papers fixed. She contends that the certainty of that consequence, if known,

would have caused her to take her chances at trial.




                                              11
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       Deficient representation

       The Sixth Amendment right to effective assistance of counsel encompasses the

plea process. Sandoval, 171 Wn.2d at 169. Counsel’s faulty advice can render the

defendant’s guilty plea involuntary or unintelligent. Id.

       As early as the spring of 1983, the Washington legislature recognized that a

criminal conviction could have significant immigration consequences and enacted

legislation requiring that before accepting a plea of guilty to a criminal offense,

Washington courts must determine that the defendant has been advised that for noncitizen

defendants, potential consequences of conviction are deportation, exclusion from

admission to the United States, or denial of naturalization. LAWS OF 1983, ch. 199, § 1.

It provided that beginning in September 1983, if a defendant faced such consequences

without having received the required warning, “the court, on defendant’s motion, shall

vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a

plea of not guilty.” RCW 10.40.200(2).

       Seventeen years later, the United States Supreme Court held in Padilla that a

steady expansion of deportable offenses, a 1952 circumscription and the 1990 elimination

of sentencing judges’ conclusive authority to decide whether a particular conviction

should be disregarded as a basis for deportation, and the 1996 elimination of the Attorney

General’s authority to grant discretionary relief from deportation, had “dramatically

raised the stakes of a noncitizen’s criminal conviction.” Padilla, 559 U.S. at 361-64. It

                                             12
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


held that “[f]or at least the past 15 years,” the weight of prevailing professional norms

had responded. Id. at 372, 367. Observing that “‘[p]reserving the client’s right to remain

in the United States may be more important to the client than any potential jail

sentence,’” and “[t]he importance of accurate legal advice for noncitizens accused of

crimes has never been more important,” the Court held that competent counsel is required

by the Sixth Amendment to the United States Constitution to advise a client facing

criminal charges about the risk of deportation. Id. at 364, 368 (quoting Immigration &

Naturalization Serv. v. St. Cyr, 533 U.S. 289, 322, 121 S. Ct. 2271, 150 L. Ed. 2d 347

(2001)).

       Because the Court recognized that “[i]mmigration law can be complex,” “[s]ome

members of the bar who represent clients facing criminal charges . . . may not be well

versed in it,” and “[t]here will . . . undoubtedly be numerous situations in which the

deportation consequences of a particular plea are unclear or uncertain,” the Court

announced the following standard for assessing a criminal defense lawyer’s duty:

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

Id. at 369 (footnote omitted).

       In Sandoval, 171 Wn.2d at 174 n.3, our Supreme Court declined to spell out a

criminal defense lawyer’s duty to inquire about, research, and advise a client about

                                             13
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


immigration consequences of a conviction where those consequences may be a client’s

priority. Amici had asked the Court to hold that a constitutionally competent criminal

defense attorney handling a noncitizen defendant’s case should (1) investigate the facts;

(2) discuss the defendant’s priorities; (3) research the immigration consequences of the

charged crime and the plea alternatives, and advise the defendant accordingly; and (4)

defend the case in light of the client’s interests and the surrounding circumstances. Id.

The Court explained that because Mr. Sandoval’s ineffective assistance claim was

narrowly focused on specific advice he received, amici’s requested holding exceeded the

scope of the case. The Court stated it would “consider these issues if and when they are

squarely presented.” Id. At least some of those issues are presented here.

       Several factors contribute to our conclusion that Ms. Contreras has made an

adequate showing of deficient representation.

              1. Ms. Siemers’s preparation of a list of immigration attorneys was not
                 “the very best advice a criminal attorney can give”

       At sentencing, Ms. Siemers told the court that Ms. Contreras “has been very

concerned about how this is going to make her future turn out,” and said, “I have referred

her to the immigration lawyers to address that problem even before we entered the plea.”

CP at 70. One might infer from the statement that “by refer[ing] her . . . to address that

problem” Ms. Siemers had satisfied herself that Ms. Contreras had been able to consult




                                             14
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


with an immigration lawyer and obtain the needed advice. Id. If so, that could be, as the

State argues, “the very best advice a criminal attorney can give.” Resp’t’s Br. at 22.

       But there is no evidence that Ms. Contreras was able to hire an immigration

lawyer.5 Ms. Siemers’s declaration in response to the PRP clarifies what she meant by

making a referral, stating, “I . . . made a list for clients of immigration attorneys in case

the client wanted further information on immigration in general.” Resp’t’s Br., App. A

(Decl. of Siemers at 3).

       The record makes clear that at the time she was charged and pled guilty, Ms.

Contreras was indigent. Ms. Siemers was her court-appointed lawyer. Ms. Siemers

informed that court that Ms. Contreras at that time “has five kids and no husband” and

was in need of child support enforcement services.6 CP at 73. Ms. Contreras’s letter to

the trial court explained that she wrongly obtained public assistance “because it was the

only money I could have and without that money, I wouldn’t have been able to afford a

baby-sitter to take care of my children for me to go to school.” CP at 69. Ms. Siemers

was aware that the guilty plea she negotiated required Ms. Contreras to come up with

$2,149.50 in restitution immediately, and that Ms. Contreras struggled to comply and


       5
         The implication of her 2018 declaration is that she did not consult an
immigration lawyer. The declaration states that if she had understood the consequence of
her plea she would have “done anything I could have to find a lawyer who could save me
from giving up any chances to become a US citizen.” CP at 188.
       6
         Ms. Contreras’s own declaration states, “I have 4 children that I have been
raising without any help.” Id.

                                              15
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


came up short. The prosecutor accepted $2,100.00, “appreciat[ing] the effort that it took

to come up with” that amount. CP at 72.

       When a noncitizen criminal defendant has no money to hire an immigration

lawyer, for her criminal lawyer to provide a list of names of immigration lawyers is not

“the very best advice a criminal attorney can give.” For immigration consequences that

the criminal defense lawyer knows or should know are material to her noncitizen client,

the lawyer has a duty to conduct enough research to determine if the consequences are

clear, and if they are clear, has a duty to provide that information to the client.

              2. The statutory warnings contained in the statement on plea of guilty were
                 not sufficient

       We agree with the observation in Ms. Contreras’s reply brief that when Ms.

Siemers asserts in her declaration that Ms. Contreras was adequately advised, she is

referring to the general immigration warnings provided in the statement on plea of guilty.

For more than 25 years, a failure to give those warnings has automatically, statutorily,

entitled a defendant facing adverse immigration consequences to withdraw a guilty plea.

RCW 10.40.200(2). Because those warnings are crafted to apply to all noncitizen

defendants, however, they do not provide a criminal defendant with helpful information

on clear consequences that might apply to him or her. The general statutory warnings do

not discharge a defense lawyer’s Sixth Amendment duty to provide advice on clear and

material consequences that are faced by the lawyer’s client.


                                              16
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


              3. The record demonstrates that Ms. Siemers was aware that being able to
                 remain in the United States was material to Ms. Contreras

       The central point of Ms. Contreras’s letter to the sentencing judge was her fear

about the uncertainty of immigration consequences. She told the judge she did not want

to have a criminal record because “maybe I’ll never be able to get my papers fixed to be

able to stay in this country.” CP at 69 (emphasis added). Ms. Siemers’s own statements

at sentencing reveal her knowledge that Ms. Contreras was distressed at the uncertainty

of her situation, telling the court that “Maria has been very concerned about how this is

going to make her future turn out,” and that Ms. Contreras was originally enthusiastic

about taking the plea, but “[t]hen she stepped back a little bit, so I don’t know if she was

aware of how serious this is.” CP at 70.

              4. Ms. Contreras demonstrates that it was clearly foreseeable, and not a
                 mere possibility, that the type of theft to which she pled guilty would
                 prevent her from establishing legal residency in the United States

       Welfare fraud under RCW 74.08.331(1), which was the type of theft to which Ms.

Contreras pleaded guilty under RCW 9A.56.030, requires proof of willfully false

statements, representations or impersonations; willful failures to reveal any material fact,

condition or circumstance affecting eligibility or need for assistance; willful failures to

promptly notify the county office of changes in status or circumstances affecting

eligibility or need for assistance; or any other fraudulent device in obtaining or

attempting to obtain public assistance. Ms. Contreras does not contend that her


                                             17
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


conviction subjected her to automatic deportation as an aggravated felony or a “crime

involving moral turpitude” for which a sentence of a year or more could have been

imposed. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii). She does contend, however, that the law

was truly clear at the time of her guilty plea that welfare fraud under RCW 74.08.331(1)

is a “crime involving moral turpitude,” the conviction for which is a recognized ground

of immigration inadmissibility and makes her ineligible to apply for cancellation of

removal and adjustment of status. See 8 U.S.C. § 1229b(b)(1).

       Under the Immigration and Naturalization Act, “any alien convicted of, or who

admits having committed, or who admits committing acts which constitute the essential

elements of . . . a crime involving moral turpitude (other than a purely political offense)

. . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Congress has not defined “crime

involving moral turpitude,” but longstanding controlling authority held at the time of Ms.

Contreras’s guilty plea that a crime in which fraud is an ingredient involves moral

turpitude. Jordan v. DeGeorge, 341 U.S. 223, 229, 71 S. Ct. 703, 95 L. Ed. 886 (1951)

(“[F]raud has consistently been regarded as such a contaminating component in any

crime that American courts have, without exception, included such crimes within the

scope of moral turpitude.”); and see Burr v. Immigration & Naturalization Serv.,

350 F.2d 87, 91 (9th Cir. 1965) (“Crimes in which fraud is an ingredient have always

been regarded as involving moral turpitude.”).



                                             18
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


       Whether a crime involves moral turpitude depends on the inherent nature of the

crime, as defined in the statute concerned, rather than the circumstances surrounding the

particular transgression. Okabe v. Immigration & Naturalization Serv., 671 F.2d 863,

865 (5th Cir. 1982). Whether a statute defines a crime involving moral turpitude is a

question of law, reviewed de novo. United States v. Yin, 935 F.2d 990, 1003 (9th Cir.

1991). Our research into cases decided before Ms. Contreras entered her guilty plea in

November 2003 reveals only cases in which it was either conceded or determined that

welfare fraud is a crime involving moral turpitude. See Miller v. United States

Immigration & Naturalization Serv., 762 F.2d 21, 22 (3d Cir. 1985) (concession that

welfare fraud is a crime involving moral turpitude (hereafter sometimes CIMT)); United

States v. Concepcion, 795 F. Supp. 1262, 1275 (E.D.N.Y. 1992) (guilty pleas to

fraudulently obtaining public assistance from programs for the poor were pleas to CIMT);

Mendoza v. Immigration & Naturalization Serv., 16 F.3d 335, 336 (9th Cir. 1994) (effort

to terminate deportation proceedings on other grounds after Board of Immigration

Appeals affirmed decision that conviction for welfare fraud, a CIMT, rendered petitioner

deportable); Flores v. Immigration & Naturalization Serv., 66 F.3d 1069, 1073 (9th Cir.

1995), superseded on reh’g, 74 F.3d 1245 (1996) (petitioner’s conviction for welfare

fraud precluded her from establishing the “good moral character” required to apply for a

suspension of deportation); Diaz v. Reno, No. 97 CIV. 6580 (MBM), 2000 WL 502852,

at *5 (S.D.N.Y. Apr. 26, 2000) (undisputed that petitioner’s conviction for welfare fraud

                                            19
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


scheme was conviction of a CIMT; he petitions for relief on other grounds). See also

Rodriguez v. Ashcroft, 95 F. App’x 208, 211 (9th Cir. 2004) (affirming Board of

Immigration Appeal’s conclusion that petitioner’s welfare fraud conviction constituted a

CIMT). The State has not brought any contrary authority to our attention.

       In Ms. Siemers’s declaration, she says she spent a good deal of time finding her

old notes and reviewing the court file. She does not say that during her representation of

Ms. Contreras she ever researched or otherwise investigated whether Ms. Contreras’s

guilty plea would have clear, material immigration consequences. “Reasonable conduct

for an attorney includes carrying out the duty to research the relevant law.” State v.

Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at 690-91).

Silence on matters that are of great importance to a lawyer’s client, when answers are

readily available, is “fundamentally at odds with the critical obligation of counsel to

advise the client of ‘the advantages and disadvantages of a plea agreement.’” Padilla,

559 U.S. at 370 (quoting Libretti v. United States, 516 U.S. 29, 50-51, 116 S. Ct. 356,

133 L. Ed. 2d 271 (1995)).

III.   MS. CONTRERAS HAS DEMONSTRATED ACTUAL AND SUBSTANTIAL PREJUDICE

       To demonstrate actual and substantial prejudice, “‘a defendant challenging a

guilty plea must show that there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.’” Sandoval,

171 Wn.2d at 174-75 (quoting In re Pers. Restraint of Riley, 122 Wn.2d 772, 780-81, 863

                                             20
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


P.2d 554 (1993)). “[A] ‘reasonable probability’ is lower than a preponderance standard.”

State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (citing Strickland, 466 U.S. at

694; State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015)). “Rather, it is a

probability sufficient to undermine confidence in the outcome.” Id. (citing Strickland,

466 U.S. at 694). It is demonstrated if a petitioner can convince the court that a decision

to reject the plea bargain would have been rational under the circumstances. Sandoval,

171 Wn.2d at 175.

       Ms. Contreras now swears that “[i]f I had known that by pleading guilty would

just get me deported forever, I would have done anything I had to to find a lawyer who

could save me from giving up any chances to become a US citizen.” CP at 188. This

current claim is consistent with the concern about the ability to remain in the United

States that she expressed at the sentencing hearing. The importance to her of the

opportunity to remain in the United States is further supported by the time and effort she

invested in earning her GED and CNA, and her later payment in full of her LFOs in order

to obtain a certificate of discharge.

       The State disputes that it would have been rational for Ms. Contreras to reject the

plea bargain, pointing to what it characterizes as the “ironclad” nature of the

prosecution’s case. Resp’t’s Br. at 21. But since adverse immigration consequences are

themselves a severe penalty and can mean exile and separation from family, the strength

of the State’s case does not compel a conclusion that Ms. Contreras could not rationally

                                             21
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras


have decided to take her chance at trial. See Sandoval, 171 Wn.2d at 175-76. And in one

sense, the documentary character of the State’s evidence supports the bona fides of Ms.

Contreras’s claim that she would have been willing to take her chances: she is willing,

now, to lose the benefit of her plea bargain, knowing that the State represents that it has a

strong documentary case. It will not be handicapped in a future trial by the inability to

locate witnesses or by memories that will have faded.

       Ms. Contreras has demonstrated that her lawyer’s failure to advise her of her

foreseeable inadmissibility and ineligibility for cancellation of removal prejudiced her.

We reverse the trial court, vacate her conviction, and remand to the trial court for

proceedings consistent with this opinion.

       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.


                                                  _____________________________
                                                  Siddoway, J.

I CONCUR:



_____________________________
Fearing, J.




                                             22
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras (Dissent)




                        No. 36109-8-III (consol. w/ No. 36425-9-III)

       PENNELL, A.C.J. (dissenting) —To prevail on her personal restraint petition, Maria

Contreras must show a reasonable probability that, had she received appropriate

immigration advice back in 2003, she would have opted to take her case to trial instead of

accepting the State’s plea offer. State v. Sandoval, 171 Wn.2d 163, 174-75, 249 P.3d

1015 (2011). I do not believe Ms. Contreras as met this burden.

       Most significantly, Ms. Contreras has never claimed she would have been willing

to take her case to trial. Cf. Sandoval, 171 Wn.2d at 175 (Prejudice was shown where the

defendant swore “he would have rejected the plea offer had he known the deportation

consequence.”). Instead, Ms. Contreras states that had she received complete advice, she

“would have done anything . . . to find a lawyer who could save [her] from giving up any

chances to become a [United States] citizen.” Clerk’s Papers (CP) at 188. It is unclear to

me how this statement is responsive to the inquiry at hand. Ms. Contreras must show that,

faced with the binary choice of the State’s offer or going to trial, she would have chosen

the latter. She has not done so. Ms. Contereras’s silence on this fundamental topic is

telling and should be fatal to her request for relief.

       Even if Ms. Contreras claimed that complete immigration advice would have

prompted her to go to trial, the prejudice inquiry would not end. Ms. Contreras would still

                                               23
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras (Dissent)


need to demonstrate that the choice of proceeding to trial “‘would have been rational

under the circumstances.’” Sandoval, 171 Wn.2d at 175 (quoting Padilla v. Kentucky,

559 U.S. 356, 372, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). Again, the record is silent

in this regard.

       This is not a case where Ms. Contreras stood to lose an existing immigration

benefit as a result of her plea. Ms. Contreras was undocumented. She was therefore

removable regardless of a criminal conviction. 8 U.S.C. § 1229a(e)(2)(B). Ms.

Contreras’s case stands in contrast to Sandoval, where the defendant was a legal

permanent resident and could not be placed in deportation proceedings without a

conviction.

       Ms. Contreras proffers that her conviction lost her the possibility of qualifying

for cancellation of removal under 8 U.S.C. § 1129b(b)(1). But Ms. Conteras fails to

show that she would have been a candidate for cancellation of removal, regardless of her

conviction. Cancellation of removal is not an affirmative basis for seeking immigration

status. It is a discretionary defense to removal. See Pereira v. Sessions, __ U.S. __, 138

S. Ct. 2105, 2109, 201 L. Ed. 2d 433 (2018). To be eligible to request cancellation of

removal, an undocumented immigrant must show four elements: (1) 10 years of physical

presence in the United States, (2) good moral character during the 10-year period, (3) no

disqualifying crime, and (4) “exceptional and extremely unusual hardship” to the

applicant’s United States citizen or lawful permanent resident “spouse, parent, or child.”

                                             24
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras (Dissent)


See 8 U.S.C. 1229b(b)(1).7 While the absence of a conviction for welfare fraud may8

have allowed Ms. Contreras to establish element (3), the record is silent as to every other

element.

       This is not a case where Ms. Contreras had nothing to lose by going to trial,

thereby making the choice to go to trial rational regardless of the implausibility of

obtaining cancellation of removal. Ms. Contreras’s plea agreement recommended no jail


       7
          The hardship showing “must be greater than the typical hardship endured by
close family members when the alien is removed.” Marin-Garcia v. Holder, 647 F.3d
666, 672 (7th Cir. 2011).
        8
          Recent case law developments suggest Ms. Contreras’s welfare fraud conviction
may not, in fact, constitute a crime of moral turpitude. Under United States immigration
law, certain petty offenses are excluded from the crime of moral turpitude definition. A
petty offense is one where “the maximum penalty possible for the crime of which the
alien was convicted . . . did not exceed imprisonment for one year and, if the alien was
convicted of such crime, the alien was not sentenced to a term of imprisonment in excess
of 6 months.” 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Ms. Contreras was sentenced prior to
the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Prior to Blakely, the maximum penalty for Ms.
Contreras’s offense (welfare fraud in violation of former RCW 9A.56.030(1)(a) (1995)
and former RCW 74.08.331 (1998)) would have been believed to be the statutory
maximum of 10 years, without regard to the applicable sentencing guidelines. But
Blakely changed the understanding of maximum penalties. As a result of Blakely and
subsequent Supreme Court cases, the Ninth Circuit Court of Appeals holds that when a
federal statute asks whether a Washington offense was “punishable by imprisonment for
a term exceeding one year,” the inquiry relates to the high end of the defendant’s standard
guideline range, not the statutory maximum. United States v. Valencia-Mendoza, 912
F.3d 1215 (9th Cir. 2019). The high end of Ms. Contreras’s standard guideline range was
60 days, well short of the petty offense cap of one year. Although the petty offense
exception uses the language “maximum penalty possible” instead of “punishable by,”
8 U.S.C. § 1182(a)(2)(A)(ii)(II), the two terms are sufficiently similar to raise a question
about whether Ms. Contreras’s offense may qualify as a petty offense and, therefore, not
qualify as a crime of moral turpitude.

                                             25
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras (Dissent)


time. This arrangement likely was valuable to Ms. Contreras as a single mother of several

children.9 In addition, because Ms. Contreras was undocumented, staying out of jail

meant she faced a reduced risk of coming to the attention of immigration authorities and

being placed in removal proceedings.10 The materials submitted with Ms. Contreras’s

personal restraint petition fail to address whether she was willing to spend time in jail,

away from her children, and incur an increased risk of deportation proceedings, simply in

order to retain a theoretical chance at cancellation of removal.

       Contrary to the majority, I do not find Ms. Contreras’s current willingness to

upend her criminal conviction and take her chances at trial to be compelling evidence she

would have made the same choice back in 2003. Two points are important in this regard.

First, Ms. Conteras’s current decision to file a personal restraint petition suggests she

may have recently come to the attention of the immigration authorities. To the extent this

is true, Ms. Contreras’s motivation to avoid attention would not be the same today as



       9
         Ms. Contreras’s declaration states she has four children she has “been raising
without any help.” CP at 188.
       10
          See Wash. Defender Ass’n, Defending Noncitizens Charged with Washington
Theft Offenses (Oct. 2017), https://defensenet.org/wp-content/uploads/2017/11/WDAIP-
Theft-Advisory-update-10-25-2017-FINAL.pdf (“Staying out of jail should lower, but
not eliminate risk of [Immigration and Customs Enforcement] apprehension.”).
Although this practice advisory is from 2017, the government’s practice of identifying
undocumented persons in local jail facilities for purposes of initiating removal
proceedings is not a new one. See, e.g., United States v. Salgado, 292 F.3d 1169, 1171
(9th Cir. 2002); United States v. Camarillo-Tello, 236 F.3d 1024, 1025 (9th Cir. 2001);
United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir. 2002).

                                             26
Nos. 36109-8-III; 36425-9-III
State v. Contreras; In re Pers. Restraint of Contreras (Dissent)


it was back in 2003. Second, although the State’s case against Ms. Contreras “was

ironclad” at the time of her 2003 plea, Resp’t’s Br. at 21, it may not remain so today.

At the time of Ms. Contreras’s conviction, the State claims it had sworn written

statements and a confession to support its case. But the record is silent as to whether the

paperwork and witnesses necessary to revive the case remain available today. Given the

not-insignificant chance the State has not retained records pertaining to a long-final

conviction, and that witnesses to Ms. Contreras’s purported confession may no longer be

available, Ms. Contreras would undoubtedly have a better chance of winning at trial

today than she did back in 2003.

       This case falls far short of the requirements for showing prejudice under Padilla

and Sandoval. I therefore dissent.




                                              Pennell, A.C.J.




                                             27
