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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO



 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 32,252

 5 GUILLERMO CONTRERAS,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
 8 Camille M. Olguin, District Judge

 9   Hector H. Balderas, Attorney General
10   Margaret McLean, Assistant Attorney General
11   Olga Serafimova, Assistant Attorney General
12   Santa Fe, NM

13 for Appellee

14 Honce Law Office, LLC
15 Elizabeth A. Honce
16 Albuquerque, NM

17 for Appellant
 1                             MEMORANDUM OPINION

 2 HANISEE, Judge.

 3   {1}   Defendant appeals from the district court’s denial of his motion for relief from

 4 judgment, wherein Defendant sought to set aside the guilty plea on grounds that Rule

 5 5-303(F)(5) NMRA, requiring that the district court both notify a defendant of, and

 6 determine his or her understanding regarding, possible immigration consequences

 7 associated with a plea of guilty. The rule as well requires that district courts ensure

 8 that defense counsel advises defendants regarding the immigration consequences they

 9 will face upon a plea of guilty. In this regard, Defendant also sought relief based upon

10 his attorney’s ineffectiveness. On appeal, Defendant argues that: (1) he did not receive

11 adequate translation services during his plea hearing; (2) the district court erred in

12 ruling that Defendant failed to establish ineffective assistance of counsel; and (3) the

13 district court erred in ruling that Defendant failed to establish a Rule 5-303(F)(5)

14 violation. As to his final point of appeal, we reverse the district court and remand for

15 proceedings consistent with this Opinion.

16 BACKGROUND

17   {2}   Defendant, a citizen of Mexico, was arrested for intentional possession of

18 cocaine, contrary to NMSA 1978, Section 30-31-23 (1990, amended 2011), and use

19 or possession with intent to use drug paraphernalia, contrary to NMSA 1978, Section

                                               2
 1 30-31-25.1 (1997, amended 2001). In 2002, Defendant entered into a plea agreement

 2 with the State, pursuant to which he pled guilty to one count of cocaine possession,

 3 a fourth degree felony. After the district court accepted Defendant’s guilty plea, it

 4 inquired as to whether Defendant was a United States citizen. On the audio tape of the

 5 proceeding, an unidentified individual can be heard to reply in the negative. The court

 6 stated that at the upcoming sentencing hearing, it would like to know how sentencing

 7 would affect Defendant’s “ability to stay in the United States.” Defense counsel stated

 8 that he did not “think a deferred sentence would have [an effect] because there is no

 9 entry of guilt.” The court requested that this information be verified and instructed

10 both the defense and the State to conduct research on the matter. Defense counsel

11 again reiterated that he did not “believe [a deferred sentence] would have an effect

12 because as a deferral there is no adjudication.”

13   {3}   At the sentencing hearing, an Adult Probation and Parole officer (APPO)

14 recommended, as set forth within a presentence report that had been prepared

15 regarding Defendant, that the court impose only a deferred sentence. Defense counsel

16 requested that the court additionally “consider a conditional discharge” due to what

17 his perception that the APPO thought there might in fact be “a possible problem with

18 the [Immigration and Naturalization Service].” The court asked if there would be a

19 problem with deferring the sentence, and defense counsel responded:


                                              3
 1         I think with the deferral, according to the presentence report, there is. I
 2         think with the conditional discharge, there probably won’t be because a
 3         judgment is never entered; a finding of guilt is never entered, and
 4         obviously [Defendant] would be under the same terms and conditions
 5         that the probation office is recommending on a deferred sentence.

 6 After conferring with the APPO, the court noted that deportation would be triggered

 7 “either with a conditional discharge, with a deferral, with a suspended [sentence], or

 8 imposition of sentence. All four of those would cause the trigger because of the plea.”

 9 Ultimately, the district court followed the recommendation of the APPO and deferred

10 Defendant’s sentence for a period of eighteen months. Defendant completed his

11 probationary period without revocation and the district court entered an order of

12 dismissal.

13   {4}   Although not a part of the record on appeal, Defendant explains that

14 approximately six years after the district court entered the dismissal, he was taken into

15 the custody of Immigration and Customs Enforcement following a traffic stop. At that

16 time, Defendant obtained new counsel and filed a motion to withdraw his initial plea

17 or to set aside the judgment and sentence. Defendant claimed that the requisite inquiry

18 was not made regarding whether he understood that his plea may bare upon his

19 immigration status, and he was “never advised by his attorney of the specific

20 immigration consequences of his plea.”1 Defendant alleged that had he “known the


18 1 While the motion actually states that “inquiry was made as to whether Defendant
19 understood that his plea may have had an effect on his immigration status[,]” due to

                                               4
 1 specific collateral immigration consequences to his plea, [he] would have exercised

 2 his [c]onstitutional [r]ight . . . to a trial by jury and would not have agreed to plead[.]”

 3   {5}   The district court held a hearing on Defendant’s motion, and Defendant

 4 subsequently filed a motion for relief from judgment pursuant to Rule 1-060(B)(6)

 5 NMRA of the Rules of Civil Procedure, where Defendant again asserted that during

 6 the plea and sentencing hearings, he was never asked if he understood the immigration

 7 consequences of his plea nor was he informed as to what the immigration

 8 consequences would be. Defendant additionally claimed that his counsel’s failure to

 9 properly advise him of the immigration consequences constituted ineffective

10 assistance of counsel that resulted in prejudice to Defendant as he had been detained

11 and placed into removal proceedings before an immigration court. Defendant again

12 argued that had he known of the specific immigration consequences of his plea, he

13 would have exercised his constitutional right to trial by jury. Ultimately, Defendant

14 asserted that his judgment was void because he received ineffective assistance of

15 counsel and because his plea was not “willfully, knowingly, or intelligently made.”

16   {6}   Alternatively, Defendant filed a petition for a writ of habeas corpus, seeking to

17 have his sentence vacated and his conviction set aside on the same bases that he was

18 denied effective assistance of counsel and that his plea was not willful, knowing, or


18 the nature of Defendant’s argument to the contrary and the absence of the inquiry in
19 the record, we assume this was a typographical error by counsel.

                                                5
 1 voluntary. Defendant alleged a violation of his Sixth and Fourteenth Amendments

 2 under the United States Constitution and his Article II, Section 14 rights under the

 3 New Mexico Constitution. After a hearing on the matters, the district court issued a

 4 ruling, noting that Defendant sought to withdraw his plea and have the judgment set

 5 aside on the bases of a violations of Rule 1-060 and Rule 5-303(F)(5).

 6   {7}   In ruling against Defendant, the district court held that: (1) Defendant’s claim

 7 regarding his lack of knowledge as to the effect of his plea on his immigration status

 8 was not credible based upon the transcript of the sentencing hearing; (2) Defendant

 9 failed to demonstrate the unconstitutionality of his plea and sentence as “Defendant

10 was present at two recorded hearings where discussion of his guilty plea, and [its]

11 [e]ffect on immigration, was discussed” and “Defendant was notified in court

12 hearings[] . . . heard extensive argument in court hearings that the guilty plea would

13 affect his ability to remain the country”; (3) the record was silent as to a violation of

14 Rule 3-303(F)(5), as portions of the sentencing hearing discussing Defendant’s

15 constitutional rights were absent and after the plea was accepted, the district court

16 asked the attorneys to research the immigration consequences, thereby putting

17 Defendant “on notice that his guilty plea could affect his immigration status.”

18 Accordingly, the district court denied Defendant’s motion for relief from judgment or,

19 in the alternative, his petition for writ of habeas corpus.


                                               6
 1   {8}   In his brief in chief, Defendant explains that ultimately he voluntarily departed

 2 the United States and is currently permanently disallowed entry into the United States.

 3 Defendant appeals the district court’s denial of his Rule 1-060(B) motion for relief

 4 from judgment or sentence, arguing that the district court erred in ruling that

 5 Defendant: (1) received adequate translation during the plea hearing, (2) failed to

 6 show ineffective assistance of counsel and prejudice under Rule 1-060(B); and (3)

 7 failed to establish a Rule 5-303(F)(5) violation.

 8 DISCUSSION

 9 I.      Rule 5-303

10   {9}   Defendant contends that the district court abused its discretion when it ruled

11 that Defendant failed to establish a Rule 5-303 violation. He asserts in this regard that

12 the district court failed to inform him that his plea may have an effect on his

13 immigration status and failed to inquire as to whether defense counsel advised him of

14 the immigration consequences of a plea. In support, Defendant cites to the transcripts

15 of the plea and sentencing hearings and claims that the only inquiry made by the

16 district court during the proceedings was whether he had anything to say during the

17 sentencing hearing. As a result of the claimed error, Defendant maintains that his plea

18 was not willfully, knowingly, and intelligently made, and the plea should be

19 withdrawn and the conviction voided.


                                               7
 1   {10}   The State concedes that the district court failed to comply with the requirements

 2 of Rule 5-303(F)(5), but argues that this was not the version of the rule in place at the

 3 time Defendant entered his plea. The State asserts that Defendant cannot rely on a

 4 later version of the rule to void his conviction. It additionally argues that “[a]

 5 judgment is void only if the court rendering it lacked jurisdiction of the subject matter,

 6 or of the parties, or acted in a manner inconsistent with due process of law.” Classen

 7 v. Classen, 1995-NMCA-022, ¶ 10, 119 N.M. 582, 893 P.2d 478 (emphasis, internal

 8 quotation marks, and citation omitted). The State maintains that because federal due

 9 process does not require a district court to inform defendants that their pleas may have

10 immigration consequences and because Defendant failed to argue that the New

11 Mexico Constitution should be subject to a varied interpretation, the district court’s

12 ruling should be affirmed.

13   {11}   “A motion to withdraw a guilty plea is addressed to the sound discretion of the

14 [district] court, and we review the [district] court’s denial of such a motion only for

15 abuse of discretion.” State v. Garcia, 1996-NMSC-013, ¶ 7, 121 N.M. 544, 915 P.2d

16 300; State v. Favela, 2013-NMCA-102, ¶ 16, 311 P.3d 1213. “The district court

17 abuses its discretion in denying a motion to withdraw a guilty plea when the

18 undisputed facts establish that the plea was not knowingly and voluntarily given.”

19 State v. Paredez, 2004-NMSC-036, ¶ 5, 136 N.M. 533, 101 P.3d 799 (internal


                                                8
 1 quotation marks and citation omitted). The relevant inquiry is whether Defendant’s

 2 plea was knowing and voluntary, which requires this Court to examine whether the

 3 district court complied with the requirements of Rule 5-303(F)(5). See Paredez, 2004-

 4 NMSC-036, ¶ 8 (“The procedures established in Rule 5-303 are designed to ensure

 5 a guilty plea is made knowingly and voluntarily.” (internal quotation marks and

 6 citation omitted)). “A denial of a motion to withdraw a guilty plea constitutes manifest

 7 error when the undisputed facts establish that the plea was not knowingly and

 8 voluntarily given.” Garcia, 1996-NMSC-013, ¶ 7.

 9   {12}   The version of Rule 5-303(F)(5) in place at the time Defendant challenged the

10 proceedings in this case states that the district court shall not accept a guilty plea

11 without first, in open court, informing the defendant that the guilty plea may have an

12 effect upon the defendant’s immigration status and determining if “the defendant has

13 been advised by counsel of the immigration consequences of a plea[.]” Id. The

14 previous version of Rule 5-303, in effect at the time Defendant entered his plea, stated

15 that the district court “shall not accept a plea of guilty . . . without first, by addressing

16 the defendant personally in open court, informing the defendant of and determining

17 that the defendant understands . . . that, if the defendant is convicted of a crime, it may

18 have an effect upon the defendant’s immigration or naturalization status.” Rule 5-

19 303(E)(5) NMRA (2001). An examination of the record reveals that at the plea


                                                 9
 1 hearing, the district court accepted Defendant’s guilty plea, and only after accepting

 2 the plea inquired as to Defendant’s citizenship. Upon discovering that Defendant was

 3 not a citizen of the United States, the court asked both defense counsel and the State

 4 to research the effects the sentence would have on Defendant’s ability to remain in the

 5 country.

 6   {13}   Therefore, even under the former version of the rule, the district court failed to

 7 comply with the requirement of informing Defendant of and determining if Defendant

 8 understood potential effects the plea may have on his immigration status. Failure to

 9 advise Defendant of the potential impact of the guilty plea on his immigration status,

10 before the plea is completed, renders Defendant’s previously stated guilty plea

11 unknowing and involuntary. See Garcia, 1996-NMSC-013, ¶ 23 (“Failure to advise

12 a defendant of the potential penalties presumptively affects defendant’s substantial

13 rights and renders the plea unknowing and involuntary.”). “An involuntary plea is

14 inconsistent with the constitutional guarantee of due process.” State v. Robbins, 1967-

15 NMSC-091, ¶ 19, 77 N.M. 644, 427 P.2d 10. Accordingly, we reverse the district

16 court’s determination that Defendant failed to establish a violation of Rule 5-303. We

17 remand with instructions to the district court to allow Defendant to withdraw his plea.

18 See Garcia, 1996-NMSC-013, ¶ 24 (reversing and remanding to the district court with

19 instructions to allow the defendant to withdraw the guilty plea where the district court


                                                10
1 failed to comply with Rule 5-303). Allowing Defendant to withdraw his plea

2 effectively disposes of the other errors claimed on appeal; therefore, we do not reach

3 them herein.

4 CONCLUSION

5   {14}   For the foregoing reasons, we reverse the decision of the district court and

6 remand for proceedings consistent with this Opinion.

7   {15}   IT IS SO ORDERED.


8                                                ________________________________
9                                                J. MILES HANISEE, Judge


10 WE CONCUR:



11 _________________________________
12 RODERICK T. KENNEDY, Judge



13 _________________________________
14 TIMOTHY L. GARCIA, Judge




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