Opinion
Nos. 25935-8-III; 26039-9-III.
June 19, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 06-1-00500-0, Evan E. Sperline, J., entered January 23, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Brown, J., concurred in by Sweeney and Korsmo, JJ.
Valentin Sandoval in his consolidated appeal and personal restraint petition (PRP) seeks to vacate his third degree rape conviction by challenging his trial counsel's effectiveness when misadvising him of the deportation consequences of changing his plea. We affirm Mr. Sandoval's conviction and guilty plea because the record lends insufficient support, and deny his PRP.
FACTS
The State charged Mr. Sandoval with second degree rape — forcible compulsion and/or lack of consent. The State agreed to reduce the charge to third degree rape-lack of consent and to recommend a six-month sentence in exchange for a guilty plea. According to Mr. Sandoval's trial counsel, Robert E. Schiffner, he was "very concerned" about being deported. Exhibit 1 to PRP at 2. Mr. Sandoval swore counsel "assured [him] that [he] would not be deported or put into Immigration Court by pleading guilty." Statement of Additional Grounds Affidavit.
Mr. Schiffner, swore Mr. Sandoval "did not want to plead guilty if the end result were that he should be immediately deported." Exhibit 1 to PRP at 2. Mr. Schiffner swore he encouraged Mr. Sandoval to accept the plea offer because he believed Mr. Sandoval would have sufficient time "to retain proper immigration counsel to ameliorate any potential immigration consequences of his guilty plea." Id. Considering Mr. Sandoval "was immediately put into deportation proceedings[,]" Mr. Schiffner concluded: "My advice to Mr. Sandoval was unfortunately incorrect." Id.
Mr. Sandoval, on advice of counsel, pleaded guilty to third degree rape. The court sentenced him to six months. Border Patrol immediately put a hold on him and started deportation proceedings. Immigration proceedings are stayed pending this appeal. Mr. Sandoval appealed and filed a PRP.
Mr. Sandoval attaches the immigration court record as an appendix to his reply brief. These documents are not included in this court's record, and, therefore, are not properly before this court on direct appeal. RAP 9.1.
ANALYSIS
The issue is whether Mr. Sandoval's third degree rape conviction and supporting guilty plea should be vacated because the plea was not knowing, intelligent and voluntary due to ineffective assistance from his trial counsel.
The facts relating to defense counsel's advice to Mr. Sandoval and the later deportation proceedings are not included in the direct appeal record. As they are not part of the designated appellate record, we cannot consider them on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Thus, no direct appeal record supports Mr. Sandoval's improper plea arguments. Therefore, no relief can be afforded to Mr. Sandoval in his direct appeal or in his pro se statement of additional grounds for review, which raises the same concerns.
A PRP petitioner must show actual and substantial prejudice by a violation of either constitutional rights or a fundamental error of law. In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990). Three options exist for a petitioner raising a constitutional issue: (1) if the petitioner fails to meet the threshold burden of showing actual prejudice stemming from the constitutional error, the petition must be dismissed; (2) if the petitioner makes a prima facie showing of actual prejudice, but the court cannot determine the merits of the contention solely on the record, the court must remand for a hearing on the merits or a reference hearing is required; or (3) if the petitioner has proven the error actually prejudiced him, the petition must be granted. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992).
Due process requires a defendant's guilty plea be knowing, voluntary and intelligent. In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297, 88 P.3d 390 (2004). A plea is involuntary if the defendant did not understand the consequences of pleading guilty. State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980). However, "[a] defendant need not be informed of all possible consequences of a plea but rather only direct consequences." State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). Direct consequences are distinguished from collateral consequences by "whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. (citing Barton, 93 Wn.2d at 305).
Mr. Sandoval contends his plea was not knowing, intelligent, and voluntary because defense counsel incorrectly informed him of the deportation consequences. In reviewing his claim of ineffective assistance of counsel, our focus is whether "(1) defense counsel's performance fell below an objective standard of reasonableness, and (2) whether this deficiency prejudiced the defendant." State v. Stowe, 71 Wn. App. 182, 186, 858 P.2d 267 (1993) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). "The first prong of the Strickland test is satisfied if counsel's performance falls below an objective standard of reasonableness in light of all surrounding circumstances." Stowe, 71 Wn. App. at 186. Even if counsel's performance is deemed deficient, the defendant must also show prejudice: a reasonable probability that, but for counsel's unprofessional errors, defendant would not have pleaded guilty and would have insisted on going to trial. Id.
Trial counsel is obliged to aid a defendant "'in evaluating the evidence against him and in discussing the possible direct consequences of a guilty plea.'" State v. Holley, 75 Wn. App. 191, 197, 876 P.2d 973 (1994) (quoting State v. Malik, 37 Wn. App. 414, 417, 680 P.2d 770 (1984)) (emphasis in original). Regarding a deportation consequence, Washington courts have held that a defendant need not be advised of the possibility of deportation because "a deportation proceeding that occurs subsequent to the entry of a guilty plea is merely a collateral consequence of that plea." In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). When counsel affirmatively misrepresents deportation consequences and the defendant relies upon these misrepresentations in making his or her plea, counsel's performance is "objectively unreasonable." United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), cert. denied, 544 U.S. 1034 (2005). A plea based on misinformation is involuntary. State v. Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006).
While trial counsel advised Mr. Sandoval that deportation proceedings would not immediately commence following conviction, possible deportation was a known consequence of the plea. Counsel provided this advice knowing rape is a crime with deportation consequences. See 8 USC § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable"); 8 USC § 1101(a)(43)(A) (rape is an "aggravated felony").
The State argues defense counsel correctly advised Mr. Sandoval because in fact he is still not deported. Deportation proceedings were merely stayed due to our review. Although Mr. Sandoval may not have pleaded guilty if he had been properly advised of the consequences of his plea, deportation is not a direct consequence of his plea. Ross, 129 Wn.2d at 284. Mr. Sandoval's conviction and guilty plea are affirmed.
Affirmed; personal restraint petition is denied.
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.
SWEENEY, J. and KORSMO, J., concur.