                                                                               FILED
                                                                            JUNE 12,2014
                                                                     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

In re the Petition for Relief from Personal      )
Restraint of:                                    )          No. 30150-8-III
                                                 )          (consolidated with
JUAN PEDRO RAMOS,                                )          No. 30766-2-III)
                                                 )
                       Petitioner.               )
----------------------------)

                            )
STATE OF WASHINGTON,                             )         ORDER DENYING MOTION FOR
                                                 )         RECONSIDERATION AND
                       Respondent,               )         GRANTING MOTION TO PUBLISH
                                                 )
             v.                                  )
                                                 )
JUAN PEDRO RAMOS,                                )
                                                 )
                       Appellant.                )

       The Court has considered appellant's motion for reconsideration and the appellant's

motion to publish the opinion of May 8, 2014, and the record and file herein, and is of the

opinion the motion for reconsideration should be denied and the motion to publish should be

granted. Therefore,

       IT IS ORDERED the motion for reconsideration of this court's decision of May 8, 2014,

is denied.

       IT IS FURTHER ORDERED the motion to publish is granted. The opinion filed by the

court on May 8, 2014 shall be modified on page 1 to designate it is a published opinion and on

page 15 by deletion of the following language:
No. 30150-8-111 conso!. w/30766-2-111
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


              A majority of the panel has detennined that this opinion will not be
      printed in the Washington Appellate Reports but will be filed for public
      record pursuant to RCW 2.06.040.

      DATED: June 12,2014 


      PANEL: Judges Brown, Siddoway, Fearing 


      FOR THE COURT: 


                                               ~!Jf!o)~
                                               CHIEF JUDGE
                                                                            FILED 

                                                                          MAY 8,2014 

                                                                 In the Office ofthe Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Petition for Relief from Personal   )
Restraint of:                                 )        No. 30150-8-III
                                              )        (consolidated with
JUAN PEDRO RAMOS,                             )        No. 30766-2-III)
                                              )
                       Petitioner,            )        UNPUBLISHED OPINION
                                              )
                                              )
STATE OF WASHINGTON                           )
                                              )
                       Respondent,            )
            v.                                )
                                              )
JUAN PEDRO RAMOS,                             )
                                              )
                       Appellant.             )

       FEARING, J. -    We once again address the ramifications of Padilla v. Kentucky,

559 U.S. 356 130 S. Ct. 1473, 1761. Ed. 2d 284 (2010). In 1997, noncitizen Juan Pedro

Ramos pled guilty to the crime of first degree theft. Through an appeal and a personal

restraint petition, Ramos seeks to vacate the guilty plea, claiming his criminal defense

attorney failed to inform him that the crime was a deportable offense. We rule that

Ramos did not suffer from ineffective assistance of counsel, since the immigration
No. 30150-8-III consol. w/30766-2-II1
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


consequences of his plea were not clear and he was warned of possible deportation. We

deny the plea vacation.

                                         FACTS

       Juan Pedro Ramos is not a United States citizen, although his parents, on his

behalf, applied for a green card in 1992. On December 26, 1996, the State of Washington

charged Ramos with first degree theft. The State alleged Ramos and two others planned

to steal 23 cars, valued at over $690,000, from a dealership. The court appointed attorney

Rem Ryals to represent him.

       On January 21, 1997, Juan Pedro Ramos pled guilty to first degree theft. In the

signed statement of defendant on plea of guilty, Ramos acknowledged that his guilty plea

could affect his immigration status. Paragraph 6(h) of the guilty plea statement provided:

      IfI am not a citizen of the United States, a plea of guilty to an offense
      punishable as a crime under state law is grounds for deportation, exclusion
      from admission to the United States, or denial of naturalization pursuant to
      the laws of the United States.

Paragraph 12 of the guilty plea statement provided:

      My lawyer has explained to me, and we have fully discussed, all of the
      above paragraphs. I understand them all. I have been given a copy of this
      "Statement of Defendant on Plea of Guilty." I have no further questions to
      ask the judge.

Clerk's Papers (CP) at 52, 54.

      At a plea hearing, the court informed Juan Pedro Ramos that he was giving up


                                            2

No. 30I50-8-III conso!. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


various constitutional rights and explained, "If you're not a citizen of the United States,

you'll face deportation upon the entry of a finding of guilty." Report of Proceedings (RP)

at 3 (Jan. 21, 1997). Ramos indicated he understood.

       Juan Pedro Ramos was 18 years old when arrested for the theft. He now testifies

that he got "off to a bad start" when younger. CP at 13. Alas, he "was young and

arrogant and wasn't making very good choices about what to do with [his] life." CP at

13.

       A week after he pled guilty in 1997, a Franklin County Superior Court sentenced

Juan Pedro Ramos to 45 days in jail, and fined him $1,029.35. After he was convicted,

Juan Pedro Ramos' mother stopped the green card application process out of fear that her

son would be deported.

       In January 2011, Juan Pedro Ramos contacted a lawyer to inquire about his

immigration status. Ramos claims he then discovered that his conviction required he be

deported. To date, United States Custom and Border Protection has not sought to deport

Ramos.

       Juan Pedro Ramos now asserts that his attorney, Rem Ryals, never inquired about

his immigration status. Ramos further claims he was not infonned, at the time of his

plea, about certain deportation as a result of entering the guilty plea. In an affidavit,

Ramos testifies his lawyer never told him that ifhe pled guilty to the charges that he


                                              3

No. 30150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


would have no chance to remain in the United States. Ifhe had been told of the

immigration consequences, he would not have pled guilty but would have found a lawyer

who would explain to him how he might avoid deportation by possibly pleading guilty to

another crime. In a second affidavit, Ramos testifies that, during the court hearing when

he pled guilty, he learned of a chance he would be deported. He learned of the possibility

when reviewing papers with his counsel Rem Ryals before he appeared before the judge.

       In April, Juan Ramos filed, in superior court, a motion to vacate his guilty plea.

Noted veteran criminal defense attorney, James Egan, signed an affidavit swearing that

attorney Ryals' practice was simply to read the immigration warnings to his clients. Rem

Ryals, an experienced criminal defense attorney, is deceased.

       Ramos supported his assertion that his conviction subjects him to mandatory

deportation with an affidavit from prominent veteran immigration attorney, Thomas

Roach. Roach claims Ramos is subject to mandatory deportation under 8 U.S.C. §

1101(a)(43)(M)(i), which requires immediate deportation for an "aggravated felony"

which includes "[any crime involving] fraud or deceit in which the loss to the victim

exceeds $10,000." Attorney Roach does not explain how he concludes Ramos' conduct

was fraudulent or deceitful, nor does he cite any case in support of this legal opinion.

       The superior court found the motion to vacate the plea time barred and transferred

it to this court for consideration as a personal restraint petition (PRP) under


                                              4

No. 30150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


CrR 7.8(c)(2). While the PRP was pending, Juan Pedro Ramos filed a notice of appeal

from the 1997 judgment and sentence, with an accompanying motion and affidavit for

late filing of direct appeal under RAP 18.8(b). The Court of Appeals commissioner

found Ramos' appeal timely because the sentencing court did not inform him of his

appeal rights at the time of his plea. We consolidated Ramos' direct appeal with his

personal restraint petition.

                                    LAW AND ANALYSIS

                               Personal Restraint Petition-Appeal

       A personal restraint petition and an appeal from the 1997 prosecution have both

advantages and disadvantages to Juan Ramos. In an appeal, Ramos may assert the

benefits afforded by Padilla since his conviction is not final, but he may not bring new

evidence to this court, such as the affidavits of counsel Egan and Roach. See Chaidez v.

United States, 568 U.S. _, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Sandoval,

171 Wn.2d 163, 168,249 P.3d 1015 (2011). Although Juan Pedro Ramos may not bring

to this court new evidence, such as the affidavits of counsel Egan and Roach, in his

appeal, he may supply new evidence in his personal restraint petition. Sandoval, 171

Wn.2d at 168; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

       Understandably, Juan Pedro Ramos wishes the best of both worlds and the

advantages of and no disadvantages from both proceedings. Equally understandably, the


                                            5

No. 30150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


State cries foul and asks that we analyze the appeal separate from the personal restraint

petition. We grant Ramos his wish.

       The Washington State Supreme Court has impliedly rejected the constrained

approach the State urges this court to adopt. Sandoval, 171 Wn.2d at 169. In Sandoval,

the court explained, if a "defendant wishes to raise issues on appeal that require evidence

or facts not in the existing trial record, the appropriate means of doing so is through a

personal restraint petition, which may be filed concurrently with the direct appeal."

Sandoval, 171 Wn.2d at 169 (quoting McFarland, 127 Wn.2d at 335). Therefore, this

court may consider the affidavits Ramos filed and apply Padilla to Ramos'

circumstances.

                             Ineffective Assistance of Counsel

       The underlying and critical issue before us is whether Juan Pedro Ramos may

vacate his 1997 guilty plea for first degree theft, because of his defense attorney's

purported failure to warn him of the immigration consequences of his plea. To establish

ineffective assistance of counsel, a defendant must satisfy a two part test (1) that his or

her counsel's assistance was objectively unreasonable and (2) that as a result of counsel's

deficient assistance, he or she suffered prejudice. Strickland v. Washington, 466 U.S.

668,690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate the first prong-

deficient performance-a reviewing court "judge[s] the reasonableness of counsel's


                                              6

No. 30150-8-111 consol. w/30766-2-111
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


challenged conduct on the facts of the particular case, viewed as of the time of counsel's

conduct." Strickland, 466 U.S. at 690. The appellate court will presume counsel was

effective. State v. Gomez Cervantes, 169 Wn. App. 428, 434,282 P.3d 98 (2012).

       The Sixth Amendment right to effective assistance of counsel encompasses the

plea process. Sandoval, 171 Wn.2d at 169 (citing In re Pers. Restraint ofRiley, 122

Wn.2d 772,780,863 P.2d 554 (1993)); McMann v. Richardson, 397 U.S. 759, 771, 90 S.

Ct. 1441,25 L. Ed. 2d 763 (1970). Faulty advice of counsel may render the defendant's

guilty plea involuntary or unintelligent. Sandoval, 171 Wn.2d at 169 (citing Hill V.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); McMann, 397 U.S. at

770-71). To establish that the plea was involuntary or unintelligent due to counsel's

inadequate advice, the defendant must show under the test in Strickland that his

attorney's performance was objectively unreasonable and that he was prejudiced by the

deficiency. Sandoval, 171 Wn.2d at 169.

      Prior to Padilla, deportation was considered to be a collateral consequence under

Washington law and anything short ofan affirmative misrepresentation by counsel of the

plea's deportation consequences could not support a plea withdrawal. Sandoval, 171

Wn.2d at 170 n.l (citing In re Pers. Restraint ofYim, 139 Wn.2d 581, 587-89, 989 P.2d

512 (1999)). Padilla explicitly rejected the proposition that only affirmative misadvice

about deportation consequences of the plea, and not failure to give such advice, could


                                            7

No. 30 150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


constitute ineffective assistance of counsel. Padilla, 559 U.S. at 369-74. Padilla also

emphasized that for "at least the past 15 years, professional norms have generally

imposed an obligation on counsel to provide advice on the deportation consequences of a

client's plea." Id. at 372.

       In Padilla, the Supreme Court stated 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." Padilla, 559 U.S. at 366. Padilla

explained that because "[i]mmigration law can be complex," the precise advice a

constitutionally effective counselor provides, depends on the clarity of the law. Padilla,

559 U.S. at 369. If the applicable immigration law "is truly clear" that an offense is

deportable, defense counsel must correctly advise the defendant that pleading guilty to

that particular charge would lead to deportation. Padilla, 559 U.S. at 369. If "the law is

not succinct and straightforward," counsel must provide only a general warning that

"pending criminal charges may carry a risk of adverse immigration consequences."

Padilla, 559 U.S. at 369.

       To assess whether Rem Ryals' advice failed to comport with the Padilla standard,

the court must determine whether the relevant immigration law was "truly clear" that the

offense was deportable. See Sandoval, 171 Wn.2d at 169-70. Padilla and Sandoval

provide some guidance for when immigration consequences are clear.


                                             8

No. 30150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


       In Padilla, the defendant pled guilty to transporting a significant amount of

marijuana in his truck-a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i):

       Any alien who at any time after admission has been convicted of a violation
       of (or a conspiracy or attempt to violate) any law or regulation of ...
       relating to a controlled substance ... , other than a single offense involving
       possession for one's own use of 30 grams or less of marijuana, is
       deportable.

       The Padilla Court deemed this statute "succinct, clear, and explicit in defining the

removal consequence for Padilla's conviction." Padilla, 559 U.S. at 368. By simply

"reading the text of the statute," Padilla's lawyer could determine that a plea of guilty

would make Padilla eligible for removal. Padilla, 559 U.S. at 368. Instead, counsel was

ruled incompetent for misadvising Padilla that he would not have to worry about his

immigration status since he had been in the country so long. Padilla, 559 U.S. at 359,

368-69.

       In Sandoval, counsel advised the defendant to accept the State's plea offer to third

degree rape because he would not be immediately deported and would have sufficient

time to retain proper immigration counsel and ameliorate any potential immigration

consequences of his plea. Sandoval, 171 Wn.2d at 167. The court concluded counsel

performed deficiently by incorrectly dismissing the risks of deportation and not

informing the defendant that third degree rape equated to an "aggravated felony" under




                                             9

No. 30l50-8-III conso!. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


federal immigration law that certainly subjected him to deportation. Sandoval, 171

Wn.2d at 174.

       Juan Pedro Ramos' guilty plea is unlike Padilla or Sandoval because the

consequences of Ramos' plea are ambiguous. Under 8 U.S.C. § l227(a)(2)(A)(iii), "Any

alien who is convicted of an aggravated felony at any time after admission is

deportable."} An alien convicted of an aggravated felony is not eligible for cancellation

of removal. 8 U.S.C. §§ 1229b(a)(3) & (b)(1)(C). 8 U.S.C. § 1 10 1(a)(43)(M)(i) defines

"aggravated felony" to include any crime "[which] involves fraud or deceit in which the

loss to the victim exceeds $10,000." CP at 19.

       Juan Ramos claims his crime, first degree theft, qualifies as an "aggravated

felony." Ramos supports his assertion that his conviction subjects him to mandatory

deportation with an affidavit from immigration attorney Thomas Roach. While we

recognize Mr. Roach as a premier immigration attorney, our role is to decide on our own,

rather than to rely on counsel, whether Ramos' conviction is one for an "aggravated

felony." Questions oflaw, except foreign law, are not the subject of expert testimony.

Clarkv. Eltinge, 38 Wash. 376,80 P. 556 (1905); UTELCOM, Inc. v. Bridges, 2010-0654




       } The federal and state statutes cited herein are all from the 1996 version in effect
when Juan Pedro Ramos committed the theft in the first degree and entered his guilty
plea. The current versions of the statutes contain no differences pertinent to the outcome.


                                             10 

No. 30150-8-III consol. w/30766-2-III
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


(La. App. 1 Cir. 9112111); 77 So.3d 39,54; Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d

487, 495 (7th Cir. 2009).

       The Immigration and Nationality Act (INA) does not define the terms "fraud" or

"deceit." 8 U.S.C. § 110 1. But several federal circuits offer guidance. When

interpreting the meaning of 8 U.S.C. § 11 01 (a)(43)(M)(i), the court in Valansi v.

Ashcroft, 278 F.3d 203,209 (3d Cir. 2002) held the terms should be construed in the

commonly accepted legal sense. Fraud means a false representation of a material fact

made with knowledge of its falsity and with intent to deceive. Valansi, 278 F.3d at 209­

10. The deceived party must believe and act on the misrepresentation to his

disadvantage. Valansi, 278 F.3d at 209-10. Likewise, the term "deceit" is commonly

perceived and has been defined as the act of intentionally giving a false impression.

Valansi, 278 F.3d 209-10; see also Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008)

("fraud" and "deceit" retained their commonly understood legal meanings).

       The Second Circuit, in construing "fraud" and "deceit" under the INA, noted that

an offense under 8 U.S.c. § l101(a)(43)(M)(i) ordinarily involves the taking or

acquisition of property with consent that has been fraudulently obtained. Bazuaye v.

Mukasey, 273 F. App'x 77 (2d Cir. 2008). Bolstering its construction, the court noted

that Congress provided a separate definition for an "aggravated felony" where simple

theft is involved. That statute, former 8 U.S.C. § I 10 I (a)(43)(G) (1996), defines


                                              II 

    No. 30150-8-III consol. w/30766-2-II1
    In re Pers. Restraint ofJuan Pedro Ramos; State    V.   Ramos


    "aggravated felony" to include "a theft offense ... for which the term of imprisonment

    imposed ... is at least five years." This statute covers those theft offenses where a

    defendant takes property without consent, as opposed to consent fraudulently obtained.

           Fraud and deceit did not infect Juan Ramos' theft. Nothing in the State's probable

    cause affidavit, in the charging information, or in Juan Pedro Ramos' allocution suggests

    Ramos' crime "involved fraud or deceit." Ramos agreed to drive cars from a car

    dealership lot with keys provided to him by a colleague who stole the master set of keys.

    The affidavit holds no allegation that the keys were stolen by misrepresentation or deceit.

    Ramos sought to drive the cars from the dealership lot after business hours, without any

    representations.

           Ramos' theft also does not qualify as an aggravated felony, under other

    subsections of8 U.S.C. § 1101(a)(43). Today, under 8 U.S.C. § 1101(a)(43)(G), an

    aggravated felony includes "theft" but only if defendant is imprisoned for at least one
j
    year. Ramos received only a 45-day sentence. Whether an offense is an aggravated

    felony, for purposes of immigration and deportation, is determined by the actual term of

I   imprisonment imposed for that offense. United States     V.   Graham, 169 F.3d 787, 789-90

I
I
~
    (3rd Cir. 1999).

           Finally, Juan Pedro Ramos contends that his offense constituted a commission of a

i
~
    crime involving moral turpitude, which automatically made him ineligible to remain in


I                                               12 

No. 30150-8-111 consol. w/30766-2-1I1
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


the United States. To support his contention, Ramos cites to Jordan v. De George, which

held that all offenses involving fraud are crimes of moral turpitude. Jordan v. De

George, 341 U.S. 223, 227-32, 71 S. Ct. 703, 95 L. Ed. 886 (1951). But this argument

only returns us to our conclusion that Ramos' theft did not constitute fraud or deceit.

       Juan Ramos might argue that the cases defining "fraud and deceit" under the INA

were decided after he pled gUilty. But he cites no cases prior to his plea that defined his

conduct as fraudulent or deceitful. At the least, when Rem Ryals advised Ramos, the

immigration consequences of Ramos' guilty plea were unclear. If "the law is not

succinct and straightforward," counsel must provide only a general warning that "pending

criminal charges may carry a risk of adverse immigration consequences." Padilla, 559

U.S. at 369.

       Juan Ramos' own testimony establishes that Rem Ryals gave him accurate advice.

Ramos learned, based upon consultation with Ryals before the guilty plea, that he could

be deported. Padilla implies that defense counsel must communicate to the client the

immigration consequences of a plea, rather than rely upon the client reading a written

form warning. But we do not consider Ryals' reading of the warning from the form to be

less of a caution than if Ryals independently uttered the warning. No case requires that

the warning of immigration consequences come directly from the thoughts ofthe attorney

rather than the attorney reading the warning to the client.


                                             13
No. 301S0-8-IlI consol. w/30766-2-Ill
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


       Juan Pedro Ramos signed paperwork confirming the advice of Rem Ryals.

Paragraph 6(h) of the guilty plea statement provided that his plea was grounds for

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

pursuant to the laws of the United States. In paragraph 12 of the guilty plea, Ramos

recognized that his guilty plea could affect his immigration status and he acknowledged

that his lawyer had explained such to him. At his plea hearing, the court informed Juan

Pedro Ramos that he was giving up various constitutional rights and explained, "If you're

not a citizen of the United States, you'll face deportation upon the entry of a finding of

guilty." RP at 3 (Jan. 21, 1997). Ramos indicated he understood.

       Since Juan Ramos has not shown ineffective assistance of counsel, he fails to meet

the first prong of the Strickland test. Therefore, we need not address whether he was

prejudiced by any representation.

                                      CONCLUSION

       Under Padilla and Sandoval the advice of Juan Pedro Ramos' counsel was not

deficient. We affirm his conviction and deny his personal restraint petition.




                                             14 

No. 30150-8-II1 consol. w/30766-2-II1
In re Pers. Restraint ofJuan Pedro Ramos; State v. Ramos


      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.




                                                   Fearing, J.


WE CONCUR: 





Brown, J.




                                            IS 

