Opinion
No. 106,355.
2012-12-14
STATE of Kansas, Appellee, v. Marco A. CARRILLO–FUENTES, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeff Goering, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In March 2008, Marco A. Carrillo–Fuentes, a native of Mexico, was charged with burglary, misdemeanor theft, and criminal damage to property. Following his arrest, Carrillo–Fuentes admitted to police that he had been involved in the incidents charged in the information. He entered into a plea agreement in which he was warned: “If I am not a United States citizen, I understand that a conviction of a felony offense most likely will result in my deportation from the United States.” Pursuant to the agreement, Carrillo–Fuentes pled no contest to burglary and criminal damage to property, and the State dismissed the misdemeanor theft charge and recommended the low-number presumptive sentence and probation.
In July 2008, the court imposed a controlling 11–month prison sentence but granted Carrillo–Fuentes probation for 24 months. His counsel informed the court that the United States Immigration and Customs Enforcement Agency (ICE) had a “hold” on Carrillo–Fuentes in anticipation of a possible deportation, but according to Carrillo–Fuentes' mother his citizenship papers had been approved which should resolve the deportation issue. Two days later, ICE took Carrillo–Fuentes into custody.
In October 2008, while awaiting deportation, Carrillo–Fuentes moved to withdraw his pleas. At the hearing on the motion, his counsel stated that Carrillo–Fuentes was in the process of becoming a citizen of the United States at the time of his pleas but never signed the documents necessary to complete his citizenship application. Counsel claimed that the pleas were entered under the false assumption that Carrillo–Fuentes was, or was soon to be, a U.S. citizen.
The State argued, however, that the parties had discussed the immigration hold on Carrillo–Fuentes before sentencing and the likelihood that he could be deported. The State emphasized that Carrillo–Fuentes admitted to being involved in the crimes and that he was a known gang member. The State also argued that defense counsel was not obligated to advise Carrillo–Fuentes of collateral consequences of his pleas, such as deportation. The court overruled Carrillo–Fuentes' motion, Carrillo–Fuentes did not appeal, and he was deported shortly thereafter.
In April 2009, a probation-violation warrant was issued against Carrillo–Fuentes for failing to report to his probation officer.
In March 2010, the United States Supreme Court issued its opinion in Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). Padilla imposed upon defense counsel the obligation to correctly advise a criminal defendant about immigration consequences from a plea. Several of the federal circuits have held that Padilla does not apply retroactively. See United States v. Mathur, 685 F.3d 396, 400 (4th Cir.2012); United States v. Amer, 681 F.3d 211, 213–14 (5th Cir.2012); Figuereo–Sanchez v. United States, 678 F.3d 1203, 1208–09 (11th Cir.2012); United States v. Chang Hong, 671 F.3d 1147, 1157 (10th Cir.2011).
Carrillo–Fuentes illegally reentered the country, and in February 2011 he was arrested on the outstanding warrant. The State filed another probation violation warrant asserting Carrillo–Fuentes had violated the laws of the United States by reentering the country illegally after his deportation.
In May 2011, Carrillo–Fuentes filed a second motion to withdraw his pleas. A different lawyer represented Carrillo–Fuentes at the hearing on this second motion. At the hearing, Carrillo–Fuentes claimed he had not been advised properly about the possibility of deportation at the time he entered his no-contest pleas. He argued that excusable neglect should allow him to assert this claim notwithstanding the 1–year time limit of K.S.A.2011 Supp. 22–3210(e). But because Carrillo–Fuentes knew about his impending deportation within the 1–year time period, the district court found no excusable neglect. The court denied the motion and Carrillo–Fuentes appealed.
On appeal, Carrillo–Fuentes does not challenge the court's denial of his second motion to withdraw his pleas. Instead, he argues that his first counsel was ineffective (1) for failing to inform him about the likelihood of him being deported following his pleas and (2) for failing to inform him of his right to appeal the denial of his first motion. He also argues that his second attorney was ineffective for failing to review the substance of his first motion and for not arguing at the second hearing for an Ortiz hearing, which would allow him to appeal the ruling on his first motion. State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). Carrillo–Fuentes asks us to remand this case to the district court for a hearing under Ortiz, 230 Kan. 733, Syl. ¶ 3.
State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), allows an appellate court to exercise its discretion on whether to remand a case to the district court to consider a claim of ineffective assistance of counsel raised for the first time on appeal. Citing State v. Shepherd, 232 Kan. 614, 657 P.2d 1112 (1983), the Van Cleave court pointed out that before ordering a remand the appellate court must “ ‘determine in the first instance whether there are valid grounds to expect that a new trial might be granted by the trial court.’ “ 239 Kan. at 120. Further, in deciding whether to remand to the district court the appellate court must consider whether the underlying motion “ ‘has merit and is not frivolous or an attempt to delay the appellate process.’ “ 239 Kan. at 120.
Carrillo–Fuentes presents two layers of ineffective lawyering. First, he claims the lawyer on his first motion was ineffective for failing to inform him about “immigration consequences prior to entering a plea” and in not advising him of his appeal rights. Second, he claims the lawyer on his second motion was ineffective for failing to ask the district court to conduct an Ortiz hearing to determine that his first lawyer was ineffective, thereby enabling Carrillo–Fuentes to file a late appeal of the ruling on his first motion.
Success for Carrillo–Fuentes hinges on him convincing us that he has a colorable claim of ineffectiveness against his first lawyer and that invoking Ortiz is not just a stalling tactic. If he does not state a colorable claim that his first lawyer was ineffective, then his second lawyer certainly could not be ineffective for failing to raise the issue.
But even if Carrillo–Fuentes states a colorable claim that his first lawyer was ineffective, we still must determine whether that entitles him to an Ortiz hearing on whether he is entitled to file a late appeal of the ruling at the first hearing. Again, if he is not entitled to an Ortiz hearing on his claims that his first lawyer was ineffective, his second lawyer certainly cannot be held to be ineffective for not asking for an Ortiz hearing.
Carrillo–Fuentes has failed to state a colorable claim that his first lawyer was ineffective. At the time Carrillo–Fuentes' first motion was filed, Padilla had not been decided. At the time of Carrillo–Fuentes' first motion, the law of Kansas was that “due process does not require that a defendant be informed of all collateral consequences that might follow from a guilty plea. [Citation omitted.]” State v. Moody, 282 Kan. 181, 194–95, 144 P.3d 612 (2006). Quoting United States v. King, 618 F.2d 550, 552 (9th Cir.1980), the Kansas Court of Appeals noted in Cox v. State, 16 Kan.App.2d 128, 130, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992), that among the collateral consequences that need not be spelled out for a defendant was “ ‘his potential deportation.’ “ Thus, in State v. Murthii, 273 Kan. 952, 956–57, 46 P.3d 1145 (2002), our Supreme Court declared that the trial court was not obligated to notify a defendant during a plea hearing of the potential for deportation because it was only a collateral consequence of the conviction. We find no Kansas appellate court decision in existence at the time of Carrillo–Fuentes' pleas which imposed on counsel the duty to advise a client of the immigration consequences of a plea.
Further, in order to warrant a remand for an Ortiz hearing on the whether Carrillo–Fuentes should be entitled to a late appeal from the ruling on his first motion, Carrillo–Fuentes had to present a colorable claim that he was entitled to notice of his right to appeal the district court's ruling and (1) he was not notified of his right to appeal, (2) he was not provided an attorney to perfect an appeal, or (3) he was provided an attorney but the attorney failed to perfect and complete the appeal. See Ortiz, 230 Kan. 733, Syl. ¶ 3.
Carrillo–Fuentes contends that he was entitled to notice of his right to appeal but was not notified of his right to appeal the district court's ruling on his first motion. But in Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007), the Supreme Court held that a criminal defendant does not have a statutory right to be informed of the right to appeal from a postconviction motion and thus cannot qualify for relief under the first prong of the Ortiz standard. Cf. K.S.A. 22–3424(f). From this we conclude that after his sentence was imposed, Carrillo–Fuentes had no statutory right to be advised of his right to appeal the ruling on his later postconviction motion. See State v. Patton, 287 Kan. 200, 219, 195 P.3d 753 (2008) (identifying three Kansas statutes that provide specific procedural safeguards of the right to appeal by certain criminal defendants).
Because Carrillo–Fuentes fails to present a colorable claim (1) that his first lawyer was ineffective in not anticipating the ruling in Padilla and (2) that his first lawyer had a duty to inform him of his appeal rights following the ruling on his first postconviction motion, his second lawyer cannot be ineffective for failing to ask for what would be a fruitless Ortiz hearing.
Thus, we find no colorable basis which justifies remanding this case for a hearing under Ortiz.
Affirmed.