Summary
holding counsel must investigate relevant immigration law when counsel is aware defendant is an alien
Summary of this case from State v. RamirezOpinion
No. 85SC319
Decided November 9, 1987. Rehearing Denied December 21, 1987.
Certiorari to the Colorado Court of Appeals
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Cynthia Jones, Assistant Attorney General, for Petitioner.
Ken Stern, for Respondent.
Richard A. Hostetler, for amicus curiae American Civil Liberties Union.
Ann Allot, Lorna Rogers Burgess, Dan Kowalski, for amicus curiae American Immigration Lawyers Association.
Larry Pozner Associates, P.C., Shelly Gilman, for amicus curiae Colorado Criminal Defense Bar.
David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, for amicus curiae Colorado State Public Defender's Office.
In People v. Pozo, 712 P.2d 1044 (Colo.App. 1985), the Court of Appeals reversed and remanded an Arapahoe County District Court order denying two motions to withdraw guilty pleas filed by the respondent, Jose Borcella Pozo, under Crim. P. 35(c). The Court of Appeals held that Pozo received ineffective assistance of counsel at the time he entered the pleas because his attorney did not inform him of the possible deportation consequences that would flow from the pleas. We granted the People's petition for certiorari to review that holding, and now reverse and remand the case to the Court of Appeals with instructions to remand the case to the trial court for further proceedings.
The Colorado State Public Defender filed a brief as amicus curiae urging reversal of the judgment of the Court of Appeals. The American Civil Liberties Union, the Colorado Criminal Defense Bar and the American Immigration Lawyers Association filed briefs as amici curiae urging affirmance of the judgment of the Court of Appeals.
I
Pozo, an alien legally residing in the United States, came to this country from Cuba in April 1980. In October 1982, pursuant to a plea agreement, Pozo entered pleas of guilty to second degree sexual assault and to escape. Pozo received a sentence to the Department of Corrections of two years for the escape conviction and a consecutive sentence of two years and six months for the sexual assault conviction. In May 1983, after a detainer was filed against him by the Immigration and Naturalization Service, Pozo filed motions to vacate the judgments of conviction under Crim. P. 35(c). He asserted: (1) that he was not adequately advised of, nor did he understand the elements of the charges against him when he entered the pleas; and (2) that he did not receive effective assistance of counsel because his trial counsel did not advise him of the possible deportation consequences of his guilty pleas.
Pursuant to 8 U.S.C. § 1251 (a)(4) (1982) an alien who is convicted of a crime of moral turpitude within five years of entry into this country may be deported.
Pozo testified at the hearing on his Crim. P. 35(c) motion that, despite his claims of innocence, he entered the guilty pleas because his trial counsel rushed him and he did not fully understand the proceedings. The trial court found no merit in Pozo's claim that his pleas were invalid on this basis. Pozo did not appeal this ruling.
A hearing on these motions was held in June 1983. Pozo testified through an interpreter that in October 1982 he had not been aware of any possible deportation consequences of his guilty pleas and that he would not have entered such pleas had he been aware of those consequences. An affidavit signed by Pozo's trial counsel, stating that he had not discussed the possible deportation consequences of the guilty pleas with Pozo, was introduced into evidence. The trial court found that prior to entering the guilty pleas Pozo had not discussed deportation consequences with his trial counsel or any other counsel and was not aware of such consequences. However, the trial court concluded that Pozo had been represented by competent and effective counsel. The Court of Appeals concluded that Pozo had been denied effective assistance of counsel, reversed the trial court's ruling and remanded the case to the trial court with directions to reinstate the original charges and allow Pozo to plead anew.
II
A plea of guilty effects a waiver of fundamental rights and, therefore, must be knowingly, intelligently and voluntarily made to be valid. Hill v. Lockhart, 474 U.S. 52 (1985); Brady v. United States, 397 U.S. 742 (1970); see also People v. Mozee, 723 P.2d 117 (Colo. 1986). Under the sixth amendment to the United States Constitution and article II, section 16 of the Colorado Constitution, the voluntariness of a guilty plea entered by a defendant represented by counsel depends in part upon whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970), quoted in Hill v. Lockhart, 474 U.S. 52; People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979). A defendant who enters a guilty plea cannot later claim the plea was involuntary merely because counsel's advice was wrong, so long as such advice is within general bounds of reasonable competence. McMann v. Richardson, 397 U.S. 759.
In Hill v. Lockhart, 474 U.S. 52, the Supreme Court applied the two-part test of Strickland v. Washington, 466 U.S. 668 (1984), to a sixth amendment claim of ineffective assistance of counsel in connection with the entry of a guilty plea. Under Strickland, a defendant claiming a violation of the constitutional right to representation by competent counsel must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance resulted in prejudice to the defendant. We have previously indicated approval of the Strickland test in connection with ineffective assistance of counsel claims based on article II, section 16, of Colorado's Constitution. See Hutchinson v. People, 742 P.2d 875 (Colo. 1987). Pozo's constitutional claims must be considered in light of that standard.
It is well settled that a trial court is not required to advise a defendant sua sponte of potential federal deportation consequences of a plea of guilty to a felony charge when accepting such plea. E.g., Downs-Morgan v. United States, 765 F.2d 1534, 1537-38 (11th Cir. 1985); United States v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982); Garcia-Trigo v. United States, 671 F.2d 147, 150 (5th Cir. 1982); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895 (1976); Michel v. United States, 507 F.2d 461, 465 (2d Cir. 1974); Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972), cert. denied, 410 U.S. 945 (1973); State v. Chung, 210 N.J. Super. 427, 510 A.2d 72, 75 (1986); Commonwealth v. Wellington, 305 Pa. Super. 24, 451 A.2d 223, 224 (1982); State v. Malik, 37 Wn. App. 414, 680 P.2d 770, 772 (1984). This rule is grounded in the notion that in accepting a plea of guilty a trial court is not required to ascertain the defendant's knowledge or understanding of collateral consequences of the conviction. E.g., Downs-Morgan v. United States, 765 F.2d 1534; Tafoya v. State, 500 P.2d 247 (Alaska 1972), cert. denied, 410 U.S. 945 (1973). The trial court is required to advise the defendant only of the direct consequences of the conviction to satisfy the due process concerns that a plea be made knowingly and with full understanding of the consequences thereof.
Six states have enacted statutes which require trial courts to inform alien defendants of possible deportation consequences of guilty pleas. Cal. Penal Code § 1016.5 (West 1985); Conn. Gen. Stat. Ann. § 54-1j (West 1987); Mass. Gen. Laws Ann. ch. 278, § 29D (West 1981); Or. Rev. Stat. § 135.385(2)(d) (1983); Tex. Code Crim. Proc. Ann. art. 26.13(a)(4) (Vernon 1987); Wash. Rev. Code Ann. § 10.40.200 (1985).
Sixth amendment constitutional standards requiring effective assistance of counsel involve examination of quite different considerations, however. One who relies on the advice of a legally trained representative when answering criminal charges is entitled to assume that the attorney will provide sufficiently accurate advice to enable the defendant to fully understand and assess the serious legal proceedings in which he is involved. See Hawkman v. Parratt, 661 F.2d 1161 (8th Cir. 1981). While justice does not demand errorless representation, People v. Velasquez, 641 P.2d 943 (Colo.), cert. denied, 459 U.S. 805 (1982), attorneys must satisfy minimal standards of competency to render effective and, therefore, constitutionally acceptable representation. Strickland, 466 U.S. 668. As noted in Strickland, Lockhart and Hutchinson, the conduct of attorneys must by necessity be considered on a case-by-case basis in light of objective standards of minimally acceptable levels of professional performance prevailing at the time of the challenged conduct. The duty of counsel is, in essence, the duty to act as any reasonable attorney would act in the same circumstances. Thus, questions regarding the type of conduct or communication required of an attorney representing a client can rarely be answered by abstract concepts. See Strickland, 466 U.S. 668. From this perspective, it is not surprising that courts considering the issue of whether defense counsel has a duty to advise alien clients of potential deportation consequences have reached conflicting results. Compare People v. Padilla, 151 Ill. App.3d 297, 502 N.E.2d 1182 (1986) (failure to advise of deportation consequences constitutes ineffective assistance of counsel), appeal denied, 114 Ill.2d 554, 508 N.E.2d 734 (1987) and Commonwealth v. Wellington, 305 Pa. Super. 24, 451 A.2d 223 (1982) (counsel has a duty to inquire into and advise alien defendant of possible deportation consequences) with Tafoya v. State, 500 P.2d 247, 251 (Alaska 1972) (alien defendant received effective assistance of counsel despite counsel's failure to advise of deportation consequences), cert. denied, 410 U.S. 945 (1973) and State v. Ginebra, 511 So.2d 960 (1987) (counsel's failure to advise client of the collateral consequence of deportation does not constitute ineffective assistance of counsel) and Mott v. State, 407 N.W.2d 581 (Iowa 1987) (failure to advise alien defendant of collateral consequences cannot provide basis for a claim of ineffective assistance of counsel).
It is generally recognized that when an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he or she will in most cases be permitted to withdraw the plea. E.g., United States v. Briscoe, 432 F.2d 1351 (D.C. Cir. 1970) (guilty plea may be subject to attack where defendant misled by prosecutor as to deportation consequences); People v. Correa, 108 Ill.2d 541, 485 N.E.2d 307 (1984) (counsel's assurance that plea would not change immigration status constitutes ineffective assistance). See also United States v. Russell, 686 F.2d 35 (D.C. Cir. 1982); United States v. Santelises, 509 F.2d 703 (2d Cir. 1975). Contra Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979); United States v. Parrino, 212 F.2d 919 (2d Cir.) (criticized in Briscoe), cert. denied, 348 U.S. 840 (1954).
We are not prepared to state in absolute terms, as did the Court of Appeals, that an attorney has a duty to advise an alien client of the possible deportation consequences of a guilty plea. Nor can we conclude, as the trial court did, that an attorney has no such duty. The general issue framed by Pozo's Crim. P. 35(c) motions was whether he was denied effective assistance of counsel. Whether counsel adequately represented Pozo in view of the lack of advice concerning possible deportation consequences depends initially on whether counsel had a duty to apprise himself of this aspect of immigration law. If no such duty existed, counsel of course had no responsibility to discuss deportation consequences with Pozo. In essence, then, this case presents the question of whether an attorney's failure to research and investigate a particular body of law while representing a client rendered the attorney's assistance constitutionally ineffective. In cases alleging ineffective assistance of counsel, the trial court must judge the reasonableness of the attorney's conduct on the basis of all of the factual circumstances of the particular case, viewed in light of the prevailing standards of minimally acceptable professional conduct as of the time of the challenged conduct. See Strickland, 466 U.S. 668, 690. Such inquiry must include an initial determination of whether the body of law was relevant to the circumstances of the client and the matters for which the attorney was retained. The inquiry must also include a determination of whether the attorney had reason to believe that the area of law in question was relevant to the client and the client's legal problems. See Strickland, 466 U.S. 668, 691.
The California Court of Appeals recently had occasion to consider the duty of counsel to research and investigate immigration consequences in People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987). In Soriano, defense counsel advised her client regarding immigration consequences despite counsel's admission that she had not fully researched the pertinent immigration law. Noting that counsel was aware that her client was an alien, and that she did not adequately investigate federal immigration law, the court concluded that defendant had been deprived of effective assistance of counsel.
Although Soriano is factually distinguishable from this case insofar as it involved erroneous representations by counsel, we find the court's underlying concern over counsel's failure to engage in rudimentary legal investigation compelling. In People v. White, 182 Colo. 417, 514 P.2d 69 (1973), this court addressed a similar problem. In White, the attorney in question neglected to investigate material factual circumstances of his client's case and failed to research the law concerning the crime with which his client had been charged. We concluded that the failure to perform such basic duties rendered counsel's assistance constitutionally ineffective.
In determining whether the performance of Pozo's counsel fell below an objective standard of reasonable conduct, an examination of the relevant statutes and governing law is necessary. An alien who pleads guilty to a crime involving moral turpitude is subject to deportation under 8 U.S.C. § 1251(a) (1982) which provides in part as follows:
"Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who —
. . . .
" (4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefore [sic] in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial."
Pozo, although a legal resident of the United States, is deemed an "alien" because he is neither a citizen nor a national of the United States. 8 U.S.C. § 1101(a)(3) (1982). Therefore, he is subject to deportation under § 1251(a)(4) because he pled guilty to second degree sexual assault within five years of entering the country. See Ng Sui Wing v. United States, 46 F.2d 755, 756 (7th Cir. 1931) (common law rape is a crime involving moral turpitude).
In reversing the trial court's order, the Court of Appeals remanded with directions to vacate both guilty pleas and judgments of conviction entered thereon. The charges were to be reinstated against Pozo, and he was ordered to plead anew. The brief submitted by the Colorado Defense Bar as amicus curiae observes that escape is a crime which has been recognized as not involving moral turpitude. See In re J, I N Dec. 512 (1951) (escape is not a crime of moral turpitude when no specific criminal intent required by statute). The People, however, do not assert that the Court of Appeals erred in vacating both pleas, and the parties have treated both pleas as one throughout these proceedings. Furthermore, the record does not indicate what offense or offenses served as the basis for the decision to seek Pozo's deportation. In view of these circumstances, it would be inappropriate to address the question of whether escape as defined in Colorado must be deemed a crime involving moral turpitude and, if not, whether Pozo was prejudiced by his entry of a plea of guilty to that offense in light of the plea negotiations and other circumstances surrounding that decision.
The harsh consequences of deportation may be averted, however, if the trial court having jurisdiction over the alien defendant recommends to the Attorney General, at the time of first imposing judgment or passing sentence or within thirty days thereafter, that the defendant not be deported. 8 U.S.C. § 1251(b) (1982); Janvier v. United States, 793 F.2d 449 (2d Cir. 1986) (judicial recommendation is part of sentencing). Although Congress intended that aliens would be deported routinely for convictions of serious crimes under 8 U.S.C. § 1251(a)(4), the recommendation of the sentencing judge, properly made in accordance with 8 U.S.C. § 1251(b), is binding upon the Attorney General. Janvier, 793 F.2d 449, 452-53; accord Velez-Lozano v. Immigration Naturalization Serv., 463 F.2d 1305, 1308 (D.C. Cir. 1972); Haller v. Esperdy, 397 F.2d 211, 213 (2d Cir. 1968); United States ex rel. Santarelli v. Hughes, 116 F.2d 613, 616 (3d Cir. 1940). In practice, then, a sentencing judge can prevent the deportation of a convicted alien.
8 U.S.C. § 1251(b) provides as follows: "The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply . . . . if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution [sic] authorities, who shall be granted an opportunity to make representations in the matter. The provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(11) of this section."
In view of these factors, we conclude that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to critical phases of such proceedings. The determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien. When defense counsel in a criminal case is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law. See People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987). This duty stems not from a duty to advise specifically of deportation consequences, but rather from the more fundamental principle that attorneys must inform themselves of material legal principles that may significantly impact the particular circumstances of their clients. In cases involving alien criminal defendants, for example, thorough knowledge of fundamental principles of deportation law may have significant impact on a client's decisions concerning plea negotiations and defense strategies. See People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.
The record in this case does not establish whether Pozo's counsel had reason to know before the plea was entered that Pozo was an alien. At the hearing on Pozo's Crim. P. 35(c) motion, the trial court concluded that Pozo's attorney's failure to advise his client of deportation consequences did not render the attorney's assistance ineffective; thus, the trial court did not address the questions of whether the attorney had reason to know that Pozo was an alien and what the standards of minimally acceptable professional conduct were at the time. These determinations may best be performed by the trial court upon an adequate record. Furthermore, as Strickland indicates, a finding that defense counsel had reason to know of Pozo's alien status and failed to conduct appropriate research would not render the attorney's performance inadequate in the absence of a finding that such conduct resulted in prejudice to Pozo. The trial court made no specific findings concerning the question of prejudice — and again, the trial court is in the best position to evaluate the evidence and the credibility of witnesses with regard to this portion of the Strickland test.
In considering whether a defendant who challenges a previously entered guilty plea on the basis of ineffective assistance of counsel has suffered prejudice, trial courts must focus upon whether counsel's conduct affected the outcome of the plea process. Hill v. Lockhart, 437 U.S. 52 (1985). In Hill the Supreme Court observed that, "in order to satisfy the [ Strickland] prejudice requirement, the defendant must show that there is some reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 437 U.S. at 59. Of course, the particular posture of a given case can affect the focus of inquiry into a claim of prejudice resulting from conduct that fell below an objectively reasonable minimal level of representation. For example, the court observed in Strickland that a trial court considering a post-conviction challenge to a guilty verdict must determine whether there is a reasonable probability that, absent counsel's errors, the factfinder would have entertained a reasonable doubt about the defendant's guilt, while a court considering a challenged death sentence must determine whether a reasonable probability exists that, absent counsel's errors, the sentencer would have declined to impose that penalty. Strickland, 466 U.S. 668, 695 (1983). Whatever direction the inquiry into prejudice might take, determination of that issue will invariably involve questions of credibility for resolution by the trial court.
Because critical determinations remain to be made before a conclusion concerning Pozo's claim of ineffective assistance of counsel can be made, the judgment of the Court of Appeals must be reversed and the case must be returned to the trial court for further proceedings.
III
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions to remand the case to the trial court for further proceedings consistent with the views expressed herein.
JUSTICE ERICKSON dissents; JUSTICE VOLLACK joins in the dissent.
JUSTICE ROVIRA dissents; JUSTICE ERICKSON and JUSTICE VOLLACK join in the dissent.