Opinion
No. 106,277.
2012-06-15
STATE of Kansas, Appellee, v. Ovis Edgardo GRAJEDA, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Daniel J. Arkell, of Law Office of Daniel J. Arkell, P.A., of Dodge City, for appellant. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Daniel J. Arkell, of Law Office of Daniel J. Arkell, P.A., of Dodge City, for appellant. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Ovis Edgardo Grajeda appeals from the order of the Finney County District Court denying his motion to withdraw a plea of no contest to charges of aggravated assault and criminal damage to property. Grajeda filed his motion after he was sentenced to a controlling prison term of 13 months and placed on probation for 24 months. Grajeda asserted that he had not been adequately informed of the immigration implications of his plea. We find no error in the district court's ruling and affirm that decision.
A defendant seeking to withdraw a plea after sentencing must show relief is necessary to correct manifest injustice. K.S.A.2009 Supp. 22–3210(d)(2). Manifest injustice has been described as something obviously unfair or shocking to the conscience. State v. Kelly, 291 Kan. 868, Syl. ¶ 3, 248 P.3d 1282 (2011). An appellate court will not disturb a trial court's denial of a motion to withdraw a plea after sentencing unless the defendant establishes an abuse of discretion. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). In exercising its discretion under K.S.A.2009 Supp. 22–3210(d), the district court should consider if (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. White, 289 Kan 279, 285, 211 P.3d 805 (2009); see also State v. Moses, 280 Kan. 939, 950–54, 127 P.3d 330 (2006) (recognizing other relevant factors supporting the denial of a postsentence motion to withdraw plea despite the court's failure to substantially comply with K.S.A.2009 Supp. 22–3210(a), including the reasonable promptness of the motion; prejudice to the State; defendant's prior involvement in the criminal justice system; and defendant's receipt of a favorable plea bargain).
A trial court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion). The standard for appellate review here is a formidable one.
In this case, the district court conducted an evidentiary hearing on Grajeda's motion. An appellate court must accept a district court's factual findings if they are supported by substantial evidence admitted at the hearing. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Substantial evidence has sufficient substance, standing without contradiction, to persuade a reasonable person of a given fact, circumstance, or conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007). In making that assessment, the appellate court does not weigh conflicting evidence or make independent credibility determinations. Vaughn, 288 Kan. at 143.
For purposes of our decision, we accept several propositions. First, Grajeda is a citizen of Honduras and an undocumented alien subject to deportation. Second, the conviction for aggravated assault would almost certainly result in Grajeda's involuntary repatriation to Honduras. We suppose that Grajeda would have gone to trial had he been allowed to withdraw his plea. Nothing in the record supports the notion that he had a colorable defense to the charges and, thus, some expectation of an acquittal. The failure to make such a showing would be an alternative basis to affirm the ruling of the district court, but we do not rely on it.
The facts of the underlying criminal offenses are legally irrelevant. Grajeda was charged with the crimes to which he pled along with aggravated battery, criminal threat, and domestic battery. The last three were dismissed as part of a plea agreement with the State. The agreement also called for a joint recommendation to the district court for presumptive guidelines sentencing on the aggravated assault and criminal damage offenses to be run concurrently. As we have noted, Grajeda received a sentence placing him on probation.
Grajeda premises his argument on Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), in which the United States Supreme Court held that a lawyer representing a criminal defendant provides constitutionally ineffective assistance of counsel if he or she fails to advise the defendant about clear immigration ramifications of a particular strategic choice, typically pleading to certain charges, or misinforms the defendant about those ramifications. If the immigration consequences are “unclear or uncertain,” the lawyer has an obligation to tell the defendant “the criminal charges may carry a risk of adverse immigration consequences.” 130 S.Ct. at 1483; see also State v. Lowe, No. 103,678, 2012 WL 139264, at *4 (Kan.App.), pet. for rev. filed February 13, 2012 (unpublished opinion) (noting duty on defense counsel under Padilla).
Grajeda entered his plea on October 12, 2010. He was sentenced on November 10, 2010, and filed the motion to withdraw his plea on February 23, 2011. The district court appointed new counsel for Grajeda and heard evidence on the motion on April 20, 2011.
Grajeda's former lawyer testified at the hearing that Grajeda had stated he was a United States citizen, so deportation was not an issue. Grajeda testified to the contrary. The district court did not expressly resolve that conflicting testimony. But neither that dispute nor its resolution is essential to the outcome.
Grajeda's former lawyer testified that on July 27, 2010, he mailed a letter to Grajeda, who was being held as a pretrial detainee at the Finney County jail, stating in part: “If you are not a U.S. citizen your charges are deportable offenses. This is outlined in a federal law called the Immigration and Nationality Act .” The admonition regarding immigration consequences was set out in bold type. At the hearing, Grajeda testified that he did not receive the letter. The district court, however, determined Grajeda's testimony to be lacking credibility. The district court made a factual finding, binding on appeal, that Grajeda received the letter. Grajeda's former lawyer also testified that he warned Grajeda of potential immigration consequences of felony charges during a meeting at the jail in August 2011. The lawyer's notes contain a reference to that advice.
The record on appeal also shows that during Grajeda's plea hearing the district court told Grajeda that if he were not a United States citizen, “then the possibility of deportation occurs if there is ever a felony conviction.” The district court told Grajeda, “[Y]ou want to make sure that you have a way to protect yourself from being deported....” Later during the plea hearing, Grajeda informed the district court he wished to proceed with the plea arrangement and did so.
In Lowe, this court affirmed the denial of a motion to withdraw a plea, finding that Lowe had been sufficiently informed under Padilla through this statement in the written plea agreement: “ ‘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.’ “ Lowe, 2012 WL 139264, at *4. Neither the statement nor immigration consequences were discussed orally with Lowe during the plea hearing. But “[t]hat language clearly identified deportation as a likely outcome and not merely an abstract possibility” in conformity with Padilla. 2012 WL 139264, at *4.
The evidence here shows Grajeda was at least as well informed on the immigration consequences of his decision to enter a plea. Especially given the district court's factual findings regarding the July 27 letter and given the discussion at the plea hearing, we conclude the district court did not abuse its discretion in denying the motion to withdraw the no contest pleas. Grajeda was sufficiently informed of potential adverse immigration consequences related to his decision to plead to the aggravated assault and criminal damage to property charges. His lawyer was not ineffective on that score, and Grajeda was not misled about deportation. The plea was, in that respect, knowingly and voluntarily made. There was no manifest injustice in holding Grajeda to the plea he entered, which resulted in the dismissal of the most serious charge against him and his avoiding imprisonment as a punishment.
Affirmed.