                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          April 26, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II
    In the Matter of the Personal Restraint                         No. 46842-5-II
    Petition of

    ALICIA OLIVARES CASTANEDA, aka
    ALICIA OLIVARES-VAZQUEZ,

                                                              UNPUBLISHED OPINION

                                  Petitioner.

          WORSWICK, J. — Alicia Olivares Castaneda seeks relief from personal restraint imposed

following her guilty plea conviction of second degree theft by welfare fraud.1 Castaneda asserts

that her restraint is unlawful because she received ineffective assistance of counsel during the

plea process. Specifically, Castaneda asserts that her defense counsel was ineffective during the

plea process because counsel failed to adequately advise her of the immigration consequences of

pleading guilty to second degree theft by welfare fraud. The State concedes that Castaneda

received constitutionally ineffective assistance of counsel. We accept the State’s concession,

grant Castaneda’s petition, and vacate her second degree theft by welfare fraud conviction.

                                                 FACTS

          On July 25, 2013, Castaneda pleaded guilty to a reduced charge of second degree theft by

welfare fraud. On July 24, 2014, Castaneda filed a CrR 7.8 motion to vacate the judgment and

sentence, arguing that her defense counsel rendered ineffective assistance by failing to advise her



1
  On November 19, 2015, we granted the parties’ joint motion to stay this matter to allow
Castaneda to file a motion to withdraw her guilty plea at the superior court. We hereby lift the
stay.
No. 46842-5-II


of the deportation consequences of a guilty plea. The superior court concluded that Castaneda

had not made a substantial showing that she was entitled to relief due to ineffective assistance of

counsel and that resolution of the CrR 7.8 motion did not require a factual hearing. In

accordance with CrR 7.8(b)(2), the trial court transferred Castaneda’s motion for relief from

judgment to this court for consideration as a personal restraint petition (PRP). After this matter

was transferred to us, the parties filed a joint motion to grant Castaneda’s PRP. In the motion,

the State concedes that Castaneda received ineffective assistance of counsel.

                                            ANALYSIS

       To prevail on a collateral attack on a judgment and sentence by way of a PRP, a

petitioner must generally first establish that a constitutional error has occurred and it has resulted

in actual and substantial prejudice or that a nonconstitutional error has caused a complete

miscarriage of justice. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285

(2010). However, “if a personal restraint petitioner makes a successful ineffective assistance of

counsel claim, he has necessarily met his burden to show actual and substantial prejudice.” In re

Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). To establish

ineffective assistance of counsel, Castaneda must show that counsel’s performance fell below an

objective standard of reasonableness and that counsel’s deficiency prejudiced her. In re Pers.

Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013); Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The Sixth Amendment right to effective assistance of counsel encompasses the plea

process. State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015 (2011). Faulty advice of

counsel may render the defendant’s guilty plea involuntary or unintelligent. 171 Wn.2d at 169.



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No. 46842-5-II


Ineffective assistance of counsel constitutes a manifest injustice sufficient to allow a defendant to

withdraw her guilty plea. State v. Taylor, 83 Wn.2d 594, 597, 521 P.2d 699 (1974).

       In Padilla v. Kentucky, the United States Supreme Court established that because of

deportation’s “close connection” to the criminal process, advice about deportation consequences

falls within “the ambit of the Sixth Amendment right to counsel.” 559 U.S. 356, 366, 130 S. Ct.

1473, 176 L. Ed. 2d 284 (2010). Prior to Padilla, deportation was considered to be a collateral

consequence under Washington law and anything short of an affirmative misrepresentation by

counsel of the plea’s deportation consequences could not support a plea withdrawal. Sandoval,

171 Wn.2d at 170. In Sandoval, our Supreme Court concluded counsel performed deficiently by

incorrectly minimizing the risks of deportation and not informing the defendant that third degree

rape equated to an “‘aggravated felony’” under federal immigration law that certainly subjected

him to deportation. 171 Wn.2d at 174 (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)).

       Under Padilla and Sandoval, reasonable professional norms require defense counsel to

investigate the immigration statutes and relevant case law. Padilla, 559 U.S. at 366; Sandoval,

171 Wn.2d at 170-71. Here, Castaneda argues that her counsel failed to inform her that second

degree theft by welfare fraud is a deportable offense for which discretionary relief is unavailable,

and as a result his performance was constitutionally deficient. See 8 U.S.C. § 1229(b); see also 8

U.S.C. § 1227(a)(2). The State concedes that Castaneda received constitutionally inadequate

assistance of counsel. We accept the State’s concession, grant Castaneda’s petition, and vacate

her conviction for second degree theft by welfare fraud.




                                                 3
No. 46842-5-II


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Johanson, J.




 Maxa, A.C.J.




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