v. Figueroa-Lemus , 2020 CO 59 ( 2020 )


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    ADVANCE SHEET HEADNOTE
    June 22, 2020
    
    2020 CO 59
    No. 18SC572, People v. Figueroa-Lemus—Matters Subject to Appeal—Immigration
    Advisements
    Both the People and Figueroa-Lemus petitioned for review of the court of
    appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion
    to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction
    on the grounds that until the defendant is actually sentenced and judgment of
    conviction enters, there can be no final judgment from which an appeal would lie.
    The defendant challenges the appellate court’s ultimate conclusion on the merits
    that he was not entitled to an advisement by his counsel to the effect that he would
    be detained without bond during the pendency of any deportation proceedings
    initiated against him by the federal government.
    The supreme court vacates the court of appeals’ opinion. Because a guilty
    plea taken pursuant to a statutorily sanctioned stipulation to defer judgment and
    sentence does not become a final, appealable judgment unless and until the
    deferral is revoked, sentence is actually imposed, and judgment of conviction
    enters, the defendant was without any immediate right to appeal the denial of his
    Crim. P. 32(d) motion, and the court of appeals was therefore not authorized to
    entertain the defendant’s claim. The supreme court chooses, nevertheless, to
    exercise its original jurisdiction in this case, and finds that the defendant was
    adequately advised concerning the deportation consequences of his plea, and
    therefore the district court did not abuse its discretion in denying his motion to
    withdraw.
    The Supreme Court of the State of Colorado
    2 East 14th Avenue • Denver, Colorado 80203
    
    2020 CO 59
    Supreme Court Case No. 18SC572
    Certiorari to the Colorado Court of Appeals
    Court of Appeals Case No. 14CA1181
    Petitioner/Cross-Respondent:
    The People of the State of Colorado,
    v.
    Respondent/Cross-Petitioner:
    Eswin Ariel Figueroa-Lemus.
    Judgment Vacated
    en banc
    June 22, 2020
    Attorneys for Petitioner/Cross-Respondent:
    Philip J. Weiser, Attorney General
    William G. Kozeliski, Senior Assistant Attorney General
    Denver, Colorado
    Attorneys for Respondent/Cross-Petitioner:
    Megan A. Ring, Public Defender
    Mark Evans, Deputy Public Defender
    Denver, Colorado
    CHIEF JUSTICE COATS delivered the Opinion of the Court.
    ¶1    Both the People and Figueroa-Lemus petitioned for review of the court of
    appeals’ judgment affirming the denial of the defendant’s Crim. P. 32(d) motion
    to withdraw his guilty plea. The People challenge the appellate court’s jurisdiction
    on the grounds that until the defendant is actually sentenced and judgment of
    conviction enters, there can be no final judgment from which an appeal would lie.
    The defendant challenges the appellate court’s ultimate conclusion on the merits
    that he was not entitled to an advisement by his counsel to the effect that he would
    be detained without bond during the pendency of any deportation proceedings
    initiated against him by the federal government.
    ¶2    Because a guilty plea taken pursuant to a statutorily sanctioned stipulation
    to defer judgment and sentence does not become a final, appealable judgment
    unless and until the deferral is revoked, sentence is actually imposed, and
    judgment of conviction enters, the defendant was without any immediate right to
    appeal the denial of his Crim. P. 32(d) motion, and the court of appeals was
    therefore not authorized to entertain the defendant’s claim.             Choosing,
    nevertheless, to exercise our original jurisdiction in this case, we find that the
    district court did not abuse its discretion in denying the defendant’s motion.
    ¶3    The judgment of the court of appeals is therefore vacated, and the case is
    returned to the district court for further proceedings consistent with this opinion.
    2
    I.
    ¶4    Eswin Ariel Figueroa-Lemus, a lawful permanent resident of the United
    States, was arrested on October 28, 2012, and charged with one count each of
    possession of a controlled substance (cocaine), possession of drug paraphernalia,
    and driving under the influence. On May 6, 2013, he pled guilty to the controlled
    substance count pursuant to a statutorily sanctioned stipulation with the district
    attorney for the deferral of judgment for a period of two years, pending
    satisfaction of the conditions of his deferral. At the providency hearing at which
    his plea was taken, the defendant acknowledged his awareness that his plea could
    make him deportable, and defense counsel affirmatively stated on the record that
    he and the defendant had a lengthy conversation about immigration
    consequences, after which the defendant understood that this drug offense would
    render him deportable. When expressly asked by the trial court whether plea
    counsel’s statement was true, the defendant responded affirmatively.
    ¶5    On August 6, 2013, the People moved to revoke the deferred judgment,
    alleging that the defendant had been arrested by federal Immigration and
    Customs Enforcement (“ICE”) officers and therefore could no longer comply with
    the requirements of his deferred judgment. On October 10, 2013, the defendant
    filed a motion pursuant to Crim. P. 32(d) to withdraw his guilty plea, alleging in
    support that he had received constitutionally deficient assistance of counsel at the
    3
    plea hearing because his counsel failed to give him correct advice about the
    immigration consequences of his plea. He asserted that counsel was obligated to,
    but did not, properly advise him of, among other things, the fact that if he were to
    be subjected to deportation proceedings, he would be detained without bond
    throughout the pendency of those proceedings.
    ¶6    At the time his motion was heard, the defendant testified that if he had been
    properly advised, he would have rejected the plea deal and insisted on going to
    trial. His counsel testified that he affirmatively advised the defendant he would
    eventually be deported, but he conceded that he never told the defendant directly
    that he would be subjected to mandatory detention during the pendency of any
    deportation proceedings. In addition, an immigration attorney to whom defense
    counsel had referred the defendant before his plea, testified that he also informed
    the defendant that accepting the plea would result in his deportation but did not
    specify that accepting the plea would subject him to mandatory detention during
    the pendency of any deportation proceedings.
    ¶7    On May 5, 2014, the trial court denied the motion to withdraw the
    defendant’s guilty plea. The trial court found credible the testimony of the two
    attorneys and further found that their advice that the defendant would be
    deported if he accepted the plea was adequate advice concerning the deportation
    consequences of the plea.     The court also specifically found that mandatory
    4
    detention without bond was not a clear deportation consequence of the plea as to
    which the defendant was entitled to an advisement, noting the absence of any
    authority for that proposition.
    ¶8    Although the court of appeals acknowledged that a deferred judgment is
    not a final judgment for purposes of appeal, a majority of the division nevertheless
    concluded for a number of reasons that unless the defendant were entitled to an
    immediate appeal of the denial of his motion to withdraw, he would be without
    an adequate remedy. Characterizing our holding in Kazadi v. People, 
    2012 CO 73
    ,
    
    291 P.3d 16
    , as permitting a defendant to “challenge a deferred judgment under
    Crim. P. 32(d),” People v. Figueroa-Lemus, 
    2018 COA 51
    , ¶ 9, __ P.3d __, the court of
    appeals concluded that it was unlikely that we would provide a remedy in the
    district court without allowing appellate review.
    Id. at ¶
    11. On the merits,
    however, the majority affirmed the trial court’s denial of the defendant’s Crim. P.
    32(d) motion, expressly rejecting his contention that defense counsel was obliged
    to advise him he would be subject to mandatory detention during the pendency
    of his deportation proceedings and instead concluding that he had been
    adequately advised of the immigration consequences of his plea.
    ¶9    Both the People and the defendant then petitioned this court for a writ of
    certiorari to the court of appeals.
    5
    II.
    ¶10   Answering the question whether a criminal defendant has a right of
    immediate appeal from the denial of his motion to withdraw a guilty plea entered
    pursuant to a deferred judgment stipulation does not require us to break new
    ground.
    ¶11   We have a number of times in the past made abundantly clear that a
    statutorily sanctioned deferred judgment and sentence is not a final judgment, and
    therefore, unless and until revoked, it may not be subject to either direct appellate
    review or postconviction relief. People v. Carbajal, 
    198 P.3d 102
    , 105 (Colo. 2008);
    see also People In Interest of J.D., 
    2020 CO 48
    , ¶ 14, __ P.3d __ (citing precedent
    explaining that the entry of a deferred judgment is not a final appealable sentence);
    Kazadi, ¶¶ 
    18–19, 291 P.3d at 22
    (“[A] deferred judgment is not a final judgment,
    and thus may not be subject to either Crim. P. 35 review or direct appellate review
    until revoked.” (quoting 
    Carbajal, 198 P.3d at 105
    )). Although the decisions and
    rulings of a district court on motions made in the course of a criminal case are not,
    in the absence of specific authority to the contrary provided by rule or statute,
    appealable until a final judgment is reached, see C.A.R. 1(a), the court of appeals
    reasoned that we would not have permitted a challenge to deferred judgments by
    Crim. P. 32(d) in Kazadi had we not considered the denial of a motion to withdraw
    sufficiently final to permit immediate appellate review.       In combination, the
    6
    intermediate appellate court’s misunderstanding of the scope of Crim. P. 32(d), its
    misreading of our opinion in Kazadi, and its mistaken presumptions about the
    availability of review upon entry of a final judgment, all led it to this erroneous
    conclusion.
    ¶12   In Kazadi we found the procedural vehicle of Crim. P. 32(d) available for the
    withdrawal of those guilty pleas taken pursuant to a stipulation for deferred
    judgment, just as it is for the withdrawal of pleas of guilt and nolo contendere
    generally, precisely because a deferred judgment is not yet a final judgment subject
    to review by a higher court. ¶¶ 
    18–20, 291 P.3d at 22
    –23. Unlike Crim. P. 35, which
    provides for postconviction relief, Rule 32(d) does not authorize, or provide any
    mechanism for, challenges to the validity—constitutional or otherwise—of guilty
    pleas. Instead, it provides a vehicle for a pleading defendant to present the court
    taking his plea with a fair and just reason for discretionarily permitting
    withdrawal of that plea, rather than proceeding to sentencing and final judgment.
    See Kazadi, ¶ 
    14, 291 P.3d at 21
    .
    ¶13   As we have only recently again made clear, while a demonstration of the
    likelihood of a constitutional defect in the taking of a plea could certainly present
    a fair and just reason for permitting its withdrawal, so too could a number of other
    grounds not amounting to error at all. J.D., ¶ 13. The more flexible, discretionary
    standard of Crim. P. 32(d) permits considerations of fairness and the avoidance of
    7
    error rather than a remedy for error. See People v. Chippewa, 
    751 P.2d 607
    , 611 n.6
    (Colo. 1988) (declining to follow the court of appeals, which unnecessarily
    addressed the constitutional validity of the defendant’s advisement concerning
    mandatory sentencing, and instead merely finding an abuse of discretion where
    the defendant’s Crim. P. 32(d) motion established a fair and just reason for
    withdrawal of his plea).
    ¶14    Although section 16-12-101, C.R.S. (2019), grants every person convicted of
    an offense under the statutes of this state the right of appeal to review the
    proceedings resulting in his conviction, it expressly does so only according to the
    applicable rules of the supreme court, a reference we have often construed to
    include the final judgment requirement of the appellate rules. C.A.R. 1(a) (“An
    appeal to the appellate court may be taken from . . . [a] final judgment of any
    district . . . court . . . .”); see People v. Gabriesheski, 
    262 P.3d 653
    , 656–57 (Colo. 2011)
    (appealable matters are subject to the final judgment requirement of C.A.R. 1). Our
    statement in Kazadi to the effect that we will not overturn the denial of a motion to
    withdraw absent an abuse of discretion implied nothing to the contrary, instead
    merely articulating the standard of review of Crim. P. 32(d) motions without
    implying anything about the timing of such a review, much less suggesting an
    entitlement to immediate appellate review. And the suggestion of the court of
    appeals that an appeal from the denial of a motion to withdraw would be time-
    8
    barred whenever the deferred judgment is not revoked within forty-nine days
    following denial simply misreads C.A.R. 4(b), which measures time limitations for
    appeal only from appealable orders.
    ¶15   The denial of Crim. P. 32(d) motions to withdraw guilty pleas are clearly
    reviewable after sentencing and the entry of final judgments of conviction. See,
    e.g., 
    Chippewa, 751 P.2d at 608
    –09. Although the window for both filing and
    seeking review of the denial of a Crim. P. 32(d) motion is typically narrow, in
    Kazadi we found nothing on the face of the rule prohibiting a defendant stipulating
    to a deferred judgment from also taking advantage of that rule, if he so chooses.
    ¶ 
    20, 291 P.3d at 22
    –23. By the same token, however, the fact that we have
    construed the rule to entitle a defendant to move for the discretionary withdrawal
    of his plea up until his deferred judgment is revoked and judgment enters in no
    way implies that he also be entitled to bootstrap this advantage into a claim for
    appellate review before judgment actually enters.
    ¶16   In any event, rarely will it be the case that a defendant will be substantially
    disadvantaged by having to either fulfill or violate the conditions of his deferred
    judgment stipulation before challenging the plea court’s exercise of discretion to
    deny a motion to withdraw a guilty plea. However, in the limited situations in
    which that may be the case, a defendant laboring under a deferred judgment
    stipulation in this jurisdiction has a realistic opportunity for discretionary review
    9
    by this court. Paul v. People, 
    105 P.3d 628
    , 632–33 (Colo. 2005). As we have done
    at times in the past, where the defendant’s assignment of error has been fully
    briefed, the court of appeals has published its resolution of the matter, and our
    determination that the defendant’s claim is not yet ripe for appeal would
    otherwise result in unnecessary delay, see, e.g.,
    id., we choose
    to exercise our
    original jurisdiction and address the defendant’s claim.
    ¶17   The defendant asserts that he was denied the effective assistance of counsel
    in entering into his deferred judgment stipulation because his counsel failed to
    advise him that he would be detained during deportation proceedings by the
    federal government, and had he been made aware of that fact, he would not have
    entered into the agreement. In Padilla v. Kentucky, 
    559 U.S. 356
    , 365–66, 369 (2010),
    the United States Supreme Court found that the virtually automatic deportation
    mandate of existing federal immigration law was a unique consequence of which
    counsel has an obligation to inform his client before pleading guilty. Where
    immigration law is less than clear, the Court required counsel to advise his client
    merely that there may be a risk of adverse immigration consequences, but where
    the law is “succinct and straightforward,” it required counsel to provide correct
    advice.
    Id. at 369.
    In Juarez v. People, 
    2020 CO 8
    , ¶¶ 17–18, 
    457 P.3d 560
    , 564, we
    recently considered this requirement of Padilla, and interpreted it to be that where
    federal law makes a person pleading guilty to a particular crime deportable, the
    10
    correct advice for counsel to give is to inform his client precisely that—that by
    entering a guilty plea, federal law will make him deportable.
    ¶18   In denying the defendant’s Crim. P. 32(d) motion, the district court found
    credible the testimony of his counsel that he not only advised his client that by
    entering his guilty plea he would be deported, but that it was not a matter of “if”
    but only of “when.” There is no assertion that the defendant was given any
    additional, incorrect advice about the immigration consequences of his plea.
    Nothing more concerning the immigration consequences of his plea was required
    of his counsel. Since federal practice concerning detention during deportation
    proceedings was not something of which the defendant was entitled to
    advisement by either his counsel or the court, see Juarez, ¶¶ 
    17–18, 457 P.3d at 564
    ,
    there is no basis for finding that the district court abused its discretion in denying
    the defendant’s motion to withdraw his guilty plea.
    III.
    ¶19   The judgment of the court of appeals is therefore vacated, and the case is
    returned to the district court for further proceedings consistent with this opinion.
    11