State v. Gutierrez ( 2021 )


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  •                            NOT DESIGNATED FOR PUBLICATION
    No. 122,585
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    STATE OF KANSAS,
    Appellee,
    v.
    SAUL GUTIERREZ,
    Appellant.
    MEMORANDUM OPINION
    Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed December 3,
    2021. Affirmed.
    Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
    Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
    Schmidt, attorney general, for appellee.
    Before BRUNS, P.J., BUSER, J., and WALKER, S.J.
    BUSER, J.: This is an appeal by Saul Gutierrez of the district court's denial of his
    postsentencing motion to withdraw plea. Gutierrez contends his court appointed attorney
    provided ineffective assistance of counsel by misleading him regarding the immigration
    consequences of pleading no contest to aggravated battery. Gutierrez, who is facing
    deportation, claims he was prejudiced as a result.
    After an evidentiary hearing on the motion, the district court made extensive and
    detailed findings of fact and conclusions of law. The district court ruled that Gutierrez'
    1
    attorney had competently represented his legal interests and that Gutierrez was not
    prejudiced by his attorney's conduct. Accordingly, the district court determined that
    Gutierrez had not established manifest injustice to justify the postsentence withdrawal of
    his no contest plea. Finding no abuse of discretion, we affirm the district court.
    FACTUAL AND PROCEDURAL BACKGROUND
    On November 7, 2016, the State charged Saul Gutierrez with aggravated indecent
    liberties with a child and rape. These charges were the result of allegations that while at
    his residence in February 2016, Gutierrez lewdly fondled two minor girls while their
    mother and aunt were away. The State subsequently amended the complaint, deleting the
    rape count and adding a second aggravated indecent liberties with a child charge. In April
    2018, Gutierrez' first trial ended in a mistrial when, during voir dire, jurors observed that
    Gutierrez was wearing a house arrest bracelet.
    On December 10, 2018, the first day of his second trial, Gutierrez entered into a
    plea agreement wherein he agreed to plead no contest to a single amended count of
    aggravated battery, a severity level 5 person felony, in violation of K.S.A. 2015 Supp. 21-
    5413(b)(2)(A). In return, the State agreed to dismiss the remaining count and to allow
    Gutierrez to seek a durational departure and dispositional departure to probation.
    The plea agreement was memorialized in a petition to enter plea of no contest
    (plea petition) filed with the court clerk. The plea petition, typewritten in both English
    and Spanish, included the following paragraph regarding the potential immigration
    consequences of the plea:
    "Deportation Consequences. Defendant recognizes that pleading 'No Contest' may have
    consequences with respect to his immigration status if he is not a citizen of the United
    States. Under federal law, a broad range of crimes are removable offenses, including the
    offense(s) to which defendant is pleading 'No Contest.' Removal and other immigration
    2
    consequences are the subject of a separate proceeding, however, and defendant
    understands that no one, including his attorney or the district court, can predict to a
    certainty the effect of his conviction on his immigration status. Defendant nevertheless
    affirms that he wants to plead 'No Contest' regardless of any immigration consequences
    that his plea may entail, even if the consequence is his automatic removal from the
    United States." (Emphases added.)
    The plea petition was signed and sworn to by Gutierrez. Among the other
    representations he made in the pleading, Gutierrez stated that he understood fully "that
    the court may impose any sentence within the statutory limits and grant or deny probation
    independently of the agreement between the District Attorney, my attorney, and myself."
    Moreover, Gutierrez stated: "I . . . offer my plea of 'No Contest' with full understanding
    of all the matters set forth in the Information and in this petition." His attorney, Charles
    Lamb, signed a certificate of counsel that he had made no predictions or promises to
    Gutierrez regarding any sentence the district court may impose.
    At the plea hearing, the district court asked Gutierrez if he understood the plea
    petition and Gutierrez stated he did. The district court asked Gutierrez whether he
    understood that he may not receive probation if he accepted the plea agreement, and
    Gutierrez stated he understood that possibility and he had not been promised probation by
    his attorney. Similarly, Gutierrez denied that he had been threatened or pressured to enter
    the no contest plea. Finally, the district court asked Gutierrez if he was satisfied with
    Lamb's legal representation, and Gutierrez stated he was. Gutierrez then pled no contest
    to aggravated battery. The district court accepted Gutierrez' plea and found him guilty of
    the charge.
    Prior to sentencing, Gutierrez filed a motion for both a dispositional and durational
    departure sentence. In support, Gutierrez explained that he was 71 years old, had
    Parkinson's disease, and stage IV prostate cancer. Gutierrez stated that he was receiving
    3
    ongoing cancer treatment and was scheduled for another surgery in the near future. As a
    result, Gutierrez requested a departure sentence to probation.
    A presentence investigation (PSI) report calculated Gutierrez' criminal history
    score as A. The PSI stated that Gutierrez was a United States citizen, and he possessed a
    Social Security number. Relevant to the issue on appeal, however, Gutierrez is not a
    United States citizen but a lawful permanent resident.
    Sentencing was on February 15, 2019. At the outset, the district court denied
    Gutierrez' request for a dispositional departure to probation. But the district court granted
    a downward durational departure, sentencing Gutierrez to 100 months' imprisonment,
    which was less than the presumptive 122-to-136-month term.
    Six days after sentencing, on February 21, 2019, Gutierrez filed a pro se motion to
    withdraw his plea, alleging that Lamb threatened him into entering a plea, lied to him
    about "fake" witnesses, and made sexual advances towards his sister. Thereafter,
    Gutierrez retained a new attorney, Michael Duma.
    In 2019, the United States Immigration Control Enforcement filed a detainer to
    hold Gutierrez for future deportation. On October 29, 2019, Duma filed a second motion
    to withdraw Gutierrez' plea. The motion alleged that Gutierrez' prior counsel, Lamb, was
    ineffective for misleading him regarding the immigration consequences of his plea.
    On November 14, 2019, the district court held an evidentiary hearing on Gutierrez'
    second motion to withdraw plea. The motion—which is the subject of this appeal—was
    limited to the issue of Lamb's alleged ineffective assistance regarding the immigration
    issue.
    4
    At the hearing, both Gutierrez and Lamb testified. Gutierrez testified that he told
    Lamb that he was legally in the United States and had served in the United States
    military. Gutierrez also testified that he never told his attorney or the individual who
    prepared the PSI that he was a United States citizen. Additionally, Gutierrez testified that
    Lamb did not discuss the immigration impacts of his plea and did not review with him the
    paragraph in the plea petition regarding the deportation consequences of his plea. As a
    result, Gutierrez testified that he did not believe there were any deportation risks
    associated with entering his no contest plea. Moreover, Gutierrez testified that he would
    not have entered the plea had he known it would subject him to deportation.
    For his part, Lamb testified he assumed that Gutierrez was a United States citizen
    based on Gutierrez' representations that he was "legal" and had served in the military.
    Accordingly, the attorney testified that he did not spend significant time discussing the
    deportation consequences of the plea. Contrary to Gutierrez' testimony, however, Lamb
    said he did, in fact, discuss the Deportation Consequences provision in the plea petition,
    albeit in a more limited way than he would have had he known Gutierrez was not a
    United States citizen. Rather than reviewing the provision word-for-word, the attorney
    testified he remembered telling Gutierrez that upon his plea, "If you have an issue, you
    could be deported."
    After taking Gutierrez' motion to withdraw plea under advisement, on November
    14, 2019, the district court denied the motion in a bench ruling. The district court's oral
    findings of fact and conclusions of law were extensive and detailed—comprising 29
    transcript pages. A written order denying Gutierrez' motion for failure to show manifest
    injustice was also filed.
    According to the district court, its ruling denying the motion was predicated on
    three factors. First, and central to the district court's finding that Lamb did not provide
    5
    ineffective assistance, was that Lamb reasonably believed Gutierrez was an American
    citizen. As the district court explained:
    "[T]he only fact in the defendant's favor is that he told Lamb that he was in Mexico. All
    other facts supported that Lamb was reasonable in his belief the defendant was a US
    citizen. Defendant's English was good. And while the defendant had an interpreter, it was
    made clear at the hearing on his motion to withdraw a plea that he did not need an
    interpreter. Moreover, this Court recalls hearings in which the defendant had an
    interpreter, yet he answered the Court's questions in English without the use of an
    interpreter.
    "As already stated, the defendant told Mr. Lamb that he was legally here. In fact,
    when the defendant found that Lamb had asked his sister about his immigration, he called
    Mr. Lamb specifically to tell him that he was legally in this country and in the national
    guard. Mr. Lamb was also aware the defendant had been in the military and used the fact
    as one reason for requesting the departure.
    "The defendant was 71 years old and had been in the country since he was
    eighteen years of age, according to his testimony.
    "According to the PSI in this case, he was a US citizen, as it is marked on the
    front of that PSI, and possessed a Social Security number. But it was never established in
    this hearing where that information came from. And, according to the sentencing, no one
    corrected that PSI when they were offered the opportunity to correct any mistakes to the
    PSI.
    "According to the defendant, he had a permanent resident card that would have
    been issued in 1965 and which had been renewed every ten years. According to the
    defendant, it had last been renewed in either 2010 or 2010—2009 or 2010.
    "According to the PSI and the Court's ruling on the State's motion to admit
    Defendant's prior convictions, he had two separate prior convictions in 1993 and 1987 for
    sex offense convictions. The defendant's counsel, Mr. Duma, acknowledged, pursuant to
    a question by this Court, that he did not know why the defendant was not deported for
    those convictions. He also had, according to the PSI, a DUI conviction, the last one being
    2016.
    "Other than the defendant's name and the fact that he was Hispanic, which Gudiel
    [State v. Gudiel, No. 117,001, 
    2017 WL 4558556
    , at *4 (Kan. App. 2017) (unpublished
    6
    opinion)] rejected as a trigger for Defendant's counsel to investigate, and Defendant
    telling Lamb he was from Mexico, Lamb was reasonable in believing Defendant when he
    told him that he was legally here."
    Second, apart from the district court's finding that, under the circumstances, Lamb
    was not required to inform Gutierrez of any immigration consequences from his plea, the
    district court found that Lamb had satisfied the requirements of Padilla v. Kentucky, 
    559 U.S. 356
    , 
    130 S. Ct. 1473
    , 
    176 L. Ed. 2d 284
     (2010), to inform certain clients of the risk
    of deportation. In particular, the district court noted that Lamb had warned Gutierrez of
    the immigration risks when reviewing the plea petition, and the petition also contained a
    provision that expressly warned Gutierrez of the potential deportation consequences.
    The district court found:
    "Moreover, unlike Padilla . . . Lamb did not give the defendant erroneous advice.
    Lamb testified that he told the defendant if he has an issue with immigration, then the
    defendant could be deported. Lamb carried out the—Padilla's requirement that counsel
    inform the defendant whether his or her plea carries a risk of deportation.
    ....
    "Furthermore, the plea petition in this case, which was in English and in Spanish,
    specifically advised the defendant that his conviction was a removable offense. The
    paragraph informed the defendant that his no-contest plea could have consequences on
    his immigration status if he was not a citizen, but no one could predict with certainty.
    "Finally, the defendant affirmed that he wanted to plea no contest regardless of
    the immigration consequences pursuant to that paragraph.
    ....
    "It's understandable in this case that neither Defendant nor Lamb discussed the
    paragraph in-depth because neither believed it was an issue, as Defendant believed that
    he was legal. [Lamb] asked him, according to his testimony, 'Are you okay here? Are you
    legal?' Defendant said, 'Yes.' Lamb said he did not go into more detail. He testified that
    he did not spend as much time as he normally would, and Defendant had no questions
    after they went over the plea.
    7
    "At the plea hearing, this Court addressed the plea petition. The Court asked the
    defendant if he had gone over it and discussed it with his attorney. The defendant
    answered that he had. The Court further asked if there was anything that he didn't
    understand. The defendant said, 'No, sir.' This Court asked if there was anything in the
    petition that he was not entirely clear about, and the defendant said, 'No, sir.' Despite
    Defendant's denial of reading the provision in the plea petition, his signing that
    [acknowledgement], coupled with Lamb's telling him he could be deported if he had
    immigration issues, was sufficient to satisfy Padilla. That is the—it has been so held in
    several other cases . . . . [Citations omitted.]"
    In summary, the district court's findings regarding these two factors supported the
    court's conclusion of law that Lamb was not ineffective under the first prong of the two-
    prong constitutional standard established in Strickland v. Washington, 
    466 U.S. 668
    , 687,
    
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984).
    Lastly, the district court found that Gutierrez also had not established the second
    prong—the prejudice prong—of the Strickland standard, that but for Lamb's alleged
    errors, he would not have entered a plea of no contest but would have gone to trial. In this
    regard, the district court noted that Gutierrez was motivated to accept the plea agreement
    because he wanted to argue for probation. In addition, the district court noted that
    Gutierrez had substantially benefitted from the plea, avoiding the possibility of two life
    sentences without parole under the habitual sex offender statute, and, instead, received
    100 months' imprisonment.
    Although Gutierrez testified that he would not have entered a plea had he known
    of the deportation risk, the district court found his testimony was not credible given
    Gutierrez' prior representations at the plea hearing that he understood the provisions of
    the plea petition and wanted to seek probation. As a result, the district court concluded
    that, even if Gutierrez had established ineffective assistance on the part of Lamb,
    Gutierrez did not establish he was prejudiced as a result. Without a showing of attorney
    8
    ineffectiveness and prejudice, the district court concluded as a matter of law Gutierrez
    had not shown the requisite manifest injustice to withdraw his plea under K.S.A. 2020
    Supp. 22-3210(d)(2).
    Gutierrez appeals.
    ANALYSIS
    On appeal, Gutierrez contends the district court abused its discretion by denying
    his postsentence motion to withdraw plea. Gutierrez argues that he established manifest
    injustice to withdraw his plea because Lamb misled him regarding the immigration
    consequences of entering the plea, and that he was prejudiced as a result. Gutierrez notes
    he is facing deportation, a consequence Gutierrez claims he had not anticipated when
    entering his plea.
    Standards of Review and Summary of Relevant Kansas Law
    We begin with a summary of our standards of review and Kansas law applicable to
    motions to withdraw pleas. Appellate courts review a district court's decision to deny a
    motion to withdraw a no contest plea for an abuse of discretion. See State v. Cott, 
    311 Kan. 498
    , 499, 
    464 P.3d 323
     (2020). A judicial action constitutes an abuse of discretion if
    (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
    based on an error of fact. State v. Ingham, 
    308 Kan. 1466
    , 1469, 
    430 P.3d 931
     (2018).
    The party asserting the district court abused its discretion bears the burden of showing
    such abuse of discretion. State v. Thomas, 
    307 Kan. 733
    , 739, 
    415 P.3d 430
     (2018).
    Moreover, appellate courts are bound by the district court's credibility determinations and
    may not reweigh the evidence presented during the hearing on the motion. State v.
    Anderson, 
    291 Kan. 849
    , Syl. ¶ 3, 
    249 P.3d 425
     (2011).
    9
    "To correct manifest injustice the court after sentence may set aside the judgment
    of conviction and permit the defendant to withdraw the plea." K.S.A. 2020 Supp. 22-
    3210(d)(2). Factors a court generally considers in determining whether a defendant has
    shown the manifest injustice necessary to withdraw a plea after sentencing mirror those
    considered when reviewing for good cause to support a presentence motion to withdraw a
    plea. State v. Johnson, 
    307 Kan. 436
    , 443, 
    410 P.3d 913
     (2018); see also State v. Moses,
    
    280 Kan. 939
    , 950-54, 
    127 P.3d 330
     (2006) (noting that a defendant's favorable plea
    bargain may support denial of postsentence motion to withdraw plea).
    When determining whether a defendant has demonstrated good cause to withdraw
    a plea, a district court generally looks to the following three factors from State v. Edgar,
    
    281 Kan. 30
    , 36, 
    127 P.3d 986
     (2006): (1) whether the defendant was represented by
    competent counsel; (2) whether the defendant was misled, coerced, mistreated, or
    unfairly taken advantage of; and (3) whether the plea was fairly and understandingly
    made. State v. Frazier, 
    311 Kan. 378
    , 381, 
    461 P.3d 43
     (2020). These factors should not
    be applied mechanically and to the exclusion of other factors. State v. Fritz, 
    299 Kan. 153
    , 154, 
    321 P.3d 763
     (2014). Instead, these factors establish "'viable benchmarks'" for
    the district court when exercising its discretion, but the court should not ignore other facts
    that might exist in a particular case. State v. Schaefer, 
    305 Kan. 581
    , 588, 
    385 P.3d 918
    (2016).
    Of relevance to this appeal, when a defendant files a postsentence motion to
    withdraw plea alleging ineffective assistance of counsel, manifest injustice is established
    by meeting the constitutional test for ineffective assistance. The constitutional test asks:
    (1) whether the attorney's representation fell below an objective standard of
    reasonableness and (2) whether absent the attorney's errors, there is a reasonable
    probability that the result of the proceeding would have been different. See Strickland,
    
    466 U.S. at 687
    ; State v. Kelly, 
    298 Kan. 965
    , 969-70, 
    318 P.3d 987
     (2014). Prejudice is
    shown if there is a reasonable probability that, but for the deficient performance, the
    10
    defendant would have insisted on going to trial instead of entering the plea. A reasonable
    probability is a probability that is sufficient to undermine confidence in the outcome. 298
    Kan. at 969-70.
    A claim of ineffective assistance of trial counsel is a mixed question of law and
    fact requiring de novo review. Thompson v. State, 
    293 Kan. 704
    , 715, 
    270 P.3d 1089
    (2011). However, there is a strong presumption that counsel provided the defendant with
    adequate assistance and used reasonable professional judgment in making all significant
    decisions. Johnson, 307 Kan. at 447; Kelly, 298 Kan. at 970. Indeed, judicial scrutiny of
    counsel's performance in a claim of ineffective assistance of counsel is highly deferential
    and requires consideration of all the evidence before the judge or jury. 298 Kan. at 970.
    On appeal, Gutierrez contends that Lamb "was constitutionally ineffective under
    Padilla v. Kentucky . . . because he falsely told him that deportation was a risk only if he
    had 'immigration issues,' and failed to explain to him that his offense was deportable,
    even though he was a long-time legal resident alien." The State counters that Gutierrez'
    argument
    "ignores the fact that the Defendant received advice based on the information he provided
    to defense counsel, that he was advised of potential deportation consequences, and that he
    received what he wanted in his very favorable plea deal; the opportunity to apply for
    probation. Accordingly, he had failed to establish manifest injustice permitting him to
    withdraw his plea."
    Of note, the parties agree that the Strickland factors and Edgar factors provide the proper
    analytical approach to resolving this appellate question.
    11
    Deportation Consequences of a No Contest Plea to an Aggravated Felony
    At the outset, Gutierrez claims that because he pled no contest to aggravated
    battery, a crime of violence, his deportation was a "'virtual certainty.'" The State does not
    directly respond to this assertion, and the district court made no finding regarding
    whether federal law necessarily mandated deportation of an alien convicted of aggravated
    battery.
    "The Immigration and Nationality Act (INA) renders deportable any alien
    convicted of an 'aggravated felony' after entering the United States. 
    8 U.S.C. § 1227
    (a)(2)(A)(iii). Such an alien is also ineligible for cancellation of removal, a form of
    discretionary relief allowing some deportable aliens to remain in the country. See §§
    1229b(a)(3), (b)(1)(C). Accordingly, removal is a virtual certainty for an alien found to
    have an aggravated felony conviction, no matter how long he has previously resided
    here." Sessions v. Dimaya, 584 U.S. ___, 
    138 S. Ct. 1204
    , 1210-11, 
    200 L. Ed. 2d 549
    (2018).
    Upon his plea of no contest, Gutierrez was found guilty of aggravated battery in
    violation of K.S.A. 2015 Supp. 21-5413(b)(2)(A). Under the INA, an "aggravated felony"
    includes a "a crime of violence (as defined in 
    18 U.S.C. § 16
    ) for which the term of
    imprisonment [is] at least one year . . . ." 
    8 U.S.C. § 1101
    (a)(43)(F) (2014). Further, 
    18 U.S.C. § 16
    (a) (2014) provides that a "crime of violence" includes "an offense that has as
    an element the use, attempted use, or threatened use of physical force against the person
    or property of another . . . ." K.S.A. 2015 Supp. 21-5413(b)(2)(A) defines aggravated
    battery as "recklessly causing great bodily harm to another person or disfigurement of
    another person."
    Given this statutory and caselaw precedent, for purposes of this appeal we will
    assume without deciding that federal law provides that, as a noncitizen of the United
    12
    States, upon Gutierrez' conviction for aggravated battery, deportation was a virtual
    certainty under federal immigration law.
    Did Lamb Know or Should Have Known that Gutierrez was Not a United States Citizen?
    Next, we consider whether, under the circumstances, Lamb was required to advise
    Gutierrez that upon his plea, deportation was a virtual certainty. Gutierrez asserts that
    "Lamb knew or should have known his immigration status." According to Gutierrez:
    "Even if there is no general duty to inquire into the citizenship status of every client, Mr.
    Gutierrez asserts that when defense counsel knows that a client is born outside of the
    United States, counsel should be required to ask one further question, 'Are you a United
    States citizen?'" Of note, Gutierrez does not favor us with legal precedent in support of
    this aspect of his argument.
    In response, the State counters that Lamb did not render ineffective assistance
    because Gutierrez "represented to him that he was 'legal,' and gave no indication that he
    faced deportation." Moreover, "[d]efense counsel was clear that he believed the
    Defendant faced no immigration consequences because this is how the Defendant
    represented himself over the course of the case." In short, the State contends that Lamb
    did not know and had no reason to know that Gutierrez was subject to deportation. In
    support, the State cites State v. Muriithi, 
    273 Kan. 952
    , 
    46 P.3d 1145
     (2002), superseded
    by Padilla, 
    559 U.S. 356
    , and State v. Gudiel, No. 117,001, 
    2017 WL 4558556
    , at *4
    (Kan. App. 2017) (unpublished opinion).
    In ruling on the question of whether, under the circumstances, Lamb knew or
    should have known that Gutierrez was not a United States citizen, the district court found
    the following relevant facts:
    13
    • Lamb was aware that Gutierrez was born in Mexico in 1947 and
    immigrated to the United States in 1965;
    • Lamb knew that Gutierrez had served in the United States military;
    • Lamb believed that Gutierrez was a United States citizen. According to the
    district court, "In fact, Lamb testified he did not learn [Gutierrez] was a
    permanent resident until the day of the [plea withdrawal] hearing . . . ."
    • On one occasion, Lamb called Gutierrez' sister and asked her about
    Gutierrez' immigration. The defendant, learning about the call, called Lamb
    and told him, "[H]e was legally in the country."
    • On another occasion, Lamb asked Gutierrez, "Are you okay here? Are you
    legal?" Gutierrez responded, "Yes."
    • Although Gutierrez had an interpreter throughout the criminal proceedings,
    the district court opined that "he did not need an interpreter," noting that his
    English was "good."
    All things considered, the district court concluded that other than Gutierrez' birth in
    Mexico, "All other facts supported that Lamb was reasonable in his belief [that] the
    defendant was a US citizen."
    Given the facts known to Lamb, was his belief that Gutierrez was a United States
    citizen reasonable such that Lamb was not required to advise his client that upon his plea
    deportation was a virtual certainty?
    Gutierrez contends that Lamb was constitutionally ineffective under Padilla and
    that "Padilla controls the outcome here." The State counters that Padilla is
    distinguishable because "Padilla's counsel knew Padilla was not a citizen of the United
    States and incorrectly advised Padilla that he would not need to worry about deportation."
    14
    In Padilla, the United States Supreme Court held, in relevant part:
    "Immigration law can be complex, and it is a legal specialty of its own. Some
    members of the bar who represent clients facing criminal charges, in either state or
    federal court or both, may not be well versed in it. There will, therefore, undoubtedly be
    numerous situations in which the deportation consequences of a particular plea are
    unclear or uncertain. The duty of the private practitioner in such cases is more limited.
    When the law is not succinct and straightforward . . . a criminal defense attorney need do
    no more than advise a noncitizen client that pending criminal charges may carry a risk of
    adverse immigration consequences. But when the deportation consequence is truly
    clear, . . . the duty to give correct advice is equally clear." 
    559 U.S. at 369
    .
    There is a critical difference in the knowledge of Padilla's defense counsel
    regarding his client's immigration status and Lamb's knowledge of Gutierrez' immigration
    status. In Padilla, defense counsel knew that his client was not a United States citizen.
    Here, Lamb did not know Gutierrez was not a United States citizen. On the contrary, as
    found by the district court, Lamb had a reasonable belief that Gutierrez was a United
    States citizen. Significantly, it is not without consequence that despite Lamb's inquiries
    into Gutierrez' immigration status, his client never informed Lamb he was not a United
    States citizen. Instead, as the district court found, Gutierrez made many assertions that
    reasonably led his attorney to believe Gutierrez was, in fact, a United States citizen.
    Moreover, as the district court noted, the PSI expressly stated that Gutierrez was a United
    States citizen, and Gutierrez did not take any action to correct the PSI prior to sentencing.
    In concluding that, under these circumstances, Lamb was not obligated to advise
    Gutierrez of any adverse immigration consequences upon his plea of no contest, the
    district court cited Muriithi, 
    273 Kan. 952
    . In Muriithi, our Supreme Court determined
    that "[t]he record does not show that Muriithi's counsel knew or should have known that
    he was an alien. Absent such [a] showing, Muriithi's counsel had no duty to investigate
    Muriithi's immigration status." 
    273 Kan. at 960
    . Muriithi established as a rule of law:
    15
    "Whether an attorney's failure to inform a client of possible deportation consequences of
    a nolo contendere plea constitutes ineffective assistance of counsel depends upon whether
    the attorney knew or should have known that the defendant was not a citizen of the
    United States." 
    273 Kan. 952
    , Syl. ¶ 3.
    As recognized by the district court, Muriithi was superseded in part by Padilla.
    Yet, as acknowledged by Gutierrez, our court has, on numerous occasions applied this
    rule of law from Muriithi when evaluating appeals such as this one, wherein a noncitizen
    challenged the denial of a postsentencing plea withdrawal motion based on ineffective
    assistance of counsel. See State v. Stephens, 
    46 Kan. App. 2d 853
    , 856, 
    265 P.3d 574
    (2011) (Padilla did not impose upon counsel "the duty to investigate the citizenship or
    immigration status of every client in a criminal case"); Gudiel, 
    2017 WL 4558556
    , at *4
    (discussing cases) ("Based on the current state of the law, if [Defendant's] counsel did not
    know or should not have known that [the Defendant] was a noncitizen, counsel was not
    constitutionally ineffective in failing to advise [the Defendant] of possible immigration
    consequences."); State v. Rodriquez, No. 108,505, 
    2014 WL 1096553
    , at *10-12 (Kan.
    App. 2014) (unpublished opinion) (concluding that the defense attorney had no reason to
    know that the Defendant was not a citizen when the Defendant had not informed his
    attorney that he was not a United States citizen); Hernandez v. State, No. 107,069, 
    2013 WL 2395302
    , at *3 (Kan. App. 2013) (unpublished opinion) ("[W]e are not prepared to
    say that a criminal defense lawyer has an obligation to ask a client about his or her
    immigration status or citizenship simply because the person has a recognizably ethnic
    name or a Hispanic name. Nor are we prepared to say a lawyer must ask every client
    about his or her immigration status or citizenship.").
    The factual circumstances found by the district court, which are supported by
    substantial competent evidence, bolster the court's legal conclusion that Lamb did not
    know and should not have known that Gutierrez was not a United States citizen. As a
    16
    result, Lamb was not constitutionally required to advise Gutierrez of potential
    immigration consequences of his no contest plea.
    Did Lamb Adequately Inform Gutierrez of Immigration Consequences?
    Next, we consider another aspect of the ineffective assistance of counsel claim—
    whether the district court erred in concluding, assuming Lamb knew or should have
    known that Gutierrez was not a United States citizen, that he adequately informed
    Gutierrez of the potential immigration consequences of entering his plea.
    According to Gutierrez, the Deportation Consequences clause in the plea petition
    "only warned Mr. Gutierrez that the plea 'may' have deportation consequences and may
    be a 'removable' offense." In his view, this warning was insufficient. The State counters
    that Lamb's advice and the Deportation Consequences clause "fulfilled Padilla's
    mandate."
    The district court noted that Gutierrez' attorney testified that he reviewed the
    Deportation Consequences clause in the plea agreement with Gutierrez and warned him,
    "If you have an [immigration] issue, you could be deported." In addition, the district
    court noted the Deportation Consequences provision, which was presented to Gutierrez in
    English and Spanish, "specifically advised the defendant that his conviction was a
    removable offense."
    Two sentences in the Deportation Consequences clause deserve special attention.
    First, as noted by the district court, the clause specifically informed Gutierrez that his
    plea to aggravated battery was a deportable offense: "Under federal law, a broad range of
    crimes are removable offenses, including the offense(s) to which defendant is pleading
    'No Contest." (Emphasis added.) Second, the Deportation Consequences clause
    concluded with: "Defendant nevertheless affirms that he wants to plead 'No Contest'
    17
    regardless of any immigration consequences that his plea may entail, even if the
    consequence is his automatic removal from the United States." (Emphasis added.)
    Importantly, at the plea hearing, Gutierrez testified that he had read the plea agreement
    petition, reviewed it with Lamb, and understood its provisions. Further, despite its
    warnings and disclaimers, at the plea hearing Gutierrez testified that he still wanted to
    enter a no contest plea.
    At the plea withdrawal hearing, in contravention of his statements made at the plea
    hearing and in the plea petition, Gutierrez denied that he had read the Deportation
    Consequences clause. But the document was signed and sworn to by Gutierrez, and Lamb
    testified that he discussed the deportation consequences provision in the plea petition
    with him, albeit in a more limited way given that he was unaware that Gutierrez was not a
    United States citizen. Lamb testified that he remembered telling Gutierrez that upon his
    plea, "If you have an issue, you could be deported."
    On several occasions, our court has held that provisions in plea agreements and
    plea petitions, like the Deportation Consequences clause in this case, sufficiently apprised
    the defendant of the immigration consequences of entering a plea and satisfied the
    requirements of Padilla. See State v. Romero, No. 112,891, 
    2016 WL 463783
    , at *3
    (Kan. App. 2016) (unpublished opinion) ("[T]he evidentiary record here establishes
    [Romero] was made aware at the time he entered his guilty plea that his legal status in the
    United States was at risk and that there was a likelihood that he would be deported as a
    consequence of his plea."); State v. Montes-Jurado, No. 105,564, 
    2013 WL 1444321
    , at
    *4 (Kan. App. 2013) (unpublished opinion) ("Here, the acknowledgment of rights and
    entry of plea that [the Defendant] signed satisfied the requirements of Padilla for two
    reasons. First, the acknowledgment of rights and entry of plea contained a provision that
    expressly informed him about the potential immigration consequences that he faced if he
    pled guilty. Second, [the Defendant] conceded that his counsel had gone over this
    document with him, and the trial court determined that there was no indication that he did
    18
    not understand it."); State v. Lowe, No. 103,678, 
    2012 WL 139264
    , at *4 (Kan. App.
    2012) (unpublished opinion) ("[W]e believe the information in the acknowledgement
    satisfied the requirements of Padilla. That language clearly identified deportation as a
    likely outcome and not merely an abstract possibility.").
    Applying the law to the facts, we conclude that although Lamb was not required to
    advise Gutierrez of potential adverse immigration consequences, the oral and written
    advice provided to Gutierrez was sufficient to meet the Padilla standards.
    In summary, Lamb did not know and had no reason to know Gutierrez was not a
    United States citizen subject to deportation. As a result, Lamb was not required to advise
    Gutierrez of the potential adverse immigration consequences of his no contest plea. But
    assuming Lamb had a duty to advise Gutierrez of these consequences, he fulfilled that
    duty by his oral and written advice. In short, under the totality of circumstances of
    Lamb's representation, we hold the district court did not err in ruling that his legal
    representation was not ineffective.
    Apart from Any Attorney Ineffectiveness, Did Gutierrez Establish Prejudice?
    For the sake of completeness, we next consider, assuming Lamb was ineffective,
    whether the district court erred in ruling that Gutierrez failed to establish the second
    prong of the Strickland test—that there is a reasonable probability that, but for Lamb's
    errors, Gutierrez would not have pled guilty but proceeded to trial. Prejudice is shown if
    there is a reasonable probability that, but for the deficient performance, the defendant
    would have insisted on going to trial instead of entering the plea. See Kelly, 298 Kan. at
    969-70.
    At the plea withdrawal hearing, Gutierrez testified that, had he known the
    immigration consequences of his plea, he would not have pled and, instead, would have
    19
    proceeded to trial. Gutierrez also testified that he wanted to stay in the United States to
    receive ongoing cancer treatments.
    The district court made the following findings on the issue of prejudice:
    "In this case, if the defendant had been convicted of the charges that he was
    facing, the two counts of aggravated indecent liberties with a child, both off-grid person
    felonies, he faced a likelihood of a much longer sentence because he would have fallen
    under [K.S.A. 2015 Supp.] 21-6626, the aggravated habitual sex offender statute. He
    would have faced life without any possibility of parole for each count. That sentence is
    significantly longer than the 130 months or even the 100 months which this Court granted
    him.
    ....
    "During the sentencing hearing in this case, Lamb said Defendant's decision to
    plead was his best chance to avoid prison given the allegations and his prior convictions.
    It is clear the defendant changed his mind because he had an opportunity to request
    departures regarding the length of sentence and requesting probation. Moreover, this
    defendant has failed to show that he has a colorable defense to show—in this case.
    Defendant has failed to show that his decision to reject the plea offer, which is what he
    must show to show prejudice, and would have gone to trial, would not have been rational
    under the circumstances in this case.
    "This Court handled this matter, and it was clear that on the day—this Court
    remembers the defendant wanted to plead because he thought he had an opportunity to
    get probation. This Court does not believe that he has shown prejudice, and therefore the
    defendant's motion to withdraw his plea is denied."
    From these findings it is apparent the district court did not believe Gutierrez' after-
    the-fact assertions that he would not have entered his no contest plea had he known of the
    immigration consequences. This was a credibility determination made by the district
    court. In this regard, "[a]ppellate courts do not reweigh evidence, resolve evidentiary
    conflicts, or make witness credibility determinations. [Citation omitted.]" State v.
    20
    Chandler, 
    307 Kan. 657
    , 668, 
    414 P.3d 713
     (2018). It is not our role to contradict the
    district court's credibility determination.
    Moreover, as discussed earlier, there was substantial competent evidence that
    Gutierrez, with knowledge that he was not a United States citizen, was fully aware of the
    immigration risks of his plea yet insisted on entering the plea. And given Gutierrez'
    statements at the plea hearing that he both understood the plea petition and wanted to
    seek probation, there is substantial competent evidence to support the district court's
    finding that Gutierrez was motivated to accept the plea agreement, regardless of the
    immigration consequences, because he wanted the opportunity to obtain a dispositional
    departure sentence of probation. All things considered, we find no error in the district
    court's determination that Gutierrez failed to establish prejudice as a result of any claimed
    ineffectiveness by Lamb.
    In summary, the district court reasonably concluded that Gutierrez' appointed
    attorney competently represented his legal interests and that Gutierrez failed to
    demonstrate there was a reasonable probability that, but for the claimed deficient
    performance, he would have insisted on going to trial instead of entering his plea.
    Finally, as discussed earlier in the context of Gutierrez' ineffective assistance of
    counsel claim, we also conclude that Gutierrez failed to establish the remaining Edgar
    factors—that he was misled, coerced, mistreated, or unfairly taken advantage of, or that
    his plea was not fairly and understandingly made. See Frazier, 311 Kan. at 381; Edgar,
    
    281 Kan. at 36
    . At the plea hearing, Gutierrez testified that he was of sound mind, he
    understood the provisions of the plea petition and the consequences of entering his plea,
    he had not been threatened or coerced into entering a plea, and he was satisfied with
    Lamb's legal representation. Accordingly, based on Gutierrez' own testimony at the plea
    hearing and Lamb's testimony at the plea withdrawal hearing, we find that Gutierrez has
    21
    failed to establish the remaining Edgar factors indicated manifest injustice existed to
    warrant withdrawal of his plea.
    In conclusion, for all of these reasons, we hold the district court did not abuse its
    discretion when it ruled that Gutierrez did not show manifest injustice to justify setting
    aside the judgment of conviction and withdrawal of his no contest plea. See K.S.A. 2020
    Supp. 22-3210(d)(2).
    Affirmed.
    22
    

Document Info

Docket Number: 122585

Filed Date: 12/3/2021

Precedential Status: Non-Precedential

Modified Date: 12/3/2021