State v. Paredes

2018 UT App 45THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
REYNALDO PAREDES,
Appellant.
Opinion
No. 20160508-CA
Filed March 22, 2018
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 151901382
German T. Flores, Attorney for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Reynaldo Paredes, a lawful permanent
resident of the United States, appeals from the district court’s
denial of his motion to withdraw his guilty plea. According to
Defendant, his counsel had not adequately informed him of the
immigration consequences of entering that plea, thereby failing
to provide him with effective representation. The district court
denied the withdrawal motion after finding that Defendant had
been adequately informed. We conclude that Defendant has not
demonstrated that the district court clearly erred or otherwise
abused its discretion in denying his withdrawal motion. We
therefore affirm.
State v. Paredes
BACKGROUND
¶2 In 2015, a 23-year-old woman reported to police that
Defendant had grabbed her breasts both over and under her
clothing and then exposed his penis to her. This incident was
witnessed by the woman’s 12-year-old cousin. Defendant was
arrested and charged with forcible sexual abuse, a second-degree
felony; lewdness, a class B misdemeanor; and intoxication, a
class C misdemeanor. Defendant admitted he had consumed
alcohol that day, but he denied exposing himself to the woman
and claimed that the touching was consensual.
¶3 Defendant and the State agreed that he would plead
guilty to attempted forcible sexual abuse, a third-degree felony,
in exchange for the dismissal of the other charges. A plea
agreement form was prepared, which included a clause
pertaining to immigration:
DEPORTATION/IMMIGRATION: I understand that if I
am not a United States citizen, my plea(s) today
may, or even will, subject me to deportation under
United States immigration laws and regulations, or
otherwise adversely affect my immigration status,
which may include permanently barring my re-
entry into the United States. I understand that if I
have questions about the effect of my plea on my
immigration status, I should consult with an
immigration attorney.
The immigration clause, like the other sections of the plea
agreement, was immediately followed by a Spanish translation
in bold text.
¶4 Because Defendant spoke Spanish, a court-certified
interpreter was utilized during the plea hearing. The district
court asked Defendant if he had read through, reviewed, and
understood the plea agreement:
20160508-CA 2 2018 UT App 45State v. Paredes
THE JUDGE: Mr. Paredes, did you review that plea
agreement? Did you read through that document?
THE DEFENDANT: Si.
INTERPRETER: Yes.
[Defendant’s attorney]: And it’s, this is written in
Spanish language, his native language.
THE JUDGE: Thank you. Did you understand
everything in that document?
THE DEFENDANT: Si.
INTERPRETER: Yes.
Defendant then signed the plea agreement. After finding that
Defendant’s guilty plea was knowing and voluntary, the court
accepted the plea and dismissed the other charges.
¶5 Prior to sentencing, and through new counsel, Defendant
moved to withdraw his guilty plea. He claimed that his previous
counsel had not advised him that he could be deported due to
his guilty plea. Defendant asserted in an affidavit filed with his
motion that, had he known he “would automatically be removed
from my family and be deported without the ability to lawfully
return to the United States,” he “would not have entered [a]
guilty plea” and would have instead allowed his case to proceed
to trial.
¶6 The State filed a memorandum in opposition to the
withdrawal motion, and Defendant’s new counsel filed a reply
to the opposition. In the reply memorandum, Defendant’s new
counsel claimed for the first time that Defendant was illiterate
and had therefore been totally reliant on his prior counsel to
explain the plea agreement to him. Attached to the reply brief
was an affidavit from Defendant’s sister in which she claimed
“personal knowledge that [Defendant] is not literate because he
did not attend regular school as a child.”
¶7 After oral arguments, the district court denied
Defendant’s motion to withdraw his plea. The court ruled that
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the language in the written plea agreement adequately informed
Defendant of the risk of deportation, that Defendant “knowingly
and voluntarily entered the plea agreement,” and that the plea
colloquy “was in accordance with the provisions of Rule 11 of
the Utah Rules of Criminal Procedure.” The court also struck
Defendant’s sister’s affidavit, stating it was “contrary to
[Defendant’s] representations at the time he signed the plea
agreement and . . . nonresponsive to the state’s opposition
memorandum.”
ISSUE AND STANDARD OF REVIEW
¶8 On appeal, Defendant contends that the district court
erred in denying his motion to withdraw the guilty plea. “We
review the district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion[.]” State v. Stolfus, 2014 UT
App 65, ¶ 2, 322 P.3d 1190 (citation and internal quotation marks
omitted). We “will disturb the findings of fact made by the
district court in resolving that motion to withdraw a guilty plea
only if they are clearly erroneous.” Id. (citation and internal
quotation marks omitted).
ANALYSIS
¶9 As with all critical stages of trial, a criminal defendant is
entitled to “the effective assistance of competent counsel” before
making the momentous decision to plead guilty. See Padilla v.
Kentucky, 559 U.S. 356, 364, 366 (2010) (citation and internal
quotation marks omitted). To demonstrate that counsel’s
assistance was constitutionally ineffective, a defendant must
satisfy the two-part test set forth in Strickland v. Washington; i.e.,
the defendant must show that “counsel’s representation fell
below an objective standard of reasonableness,” id. at 366(citation and internal quotation marks omitted), and that the
defendant suffered resulting prejudice, id. at 369. See also
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Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
¶10 “It is quintessentially the duty of counsel to provide [a
defendant] with available advice about an issue like deportation
and the failure to do so clearly satisfies the first prong of the
Strickland analysis.” Padilla, 559 U.S. at 371 (citation and internal
quotation marks omitted). But even if a defendant can show that
counsel failed to provide such advice, the defendant must still
show resulting prejudice. Id. at 372.
¶11 Here, Defendant asserts that, because he is allegedly
illiterate, he relied entirely on the advice given to him by counsel
and that counsel failed to inform him of the immigration
consequences associated with pleading guilty to a felony charge.
Defendant argues that counsel’s failure to “advise him of the
immigration consequences—including the real risk of
deportation—of his guilty plea constitutes ineffective assistance
of counsel because it falls below an objective standard of
reasonable professional behavior for any criminal defense
attorney.”
¶12 The State responds that Defendant has “failed to prove
either deficient performance or prejudice from counsel’s advice
in the plea process.” The State notes that Defendant signed a
plea agreement which advised him that deportation was a
possible consequence of pleading guily. The State points out that
the immigration clause in Defendant’s plea agreement used the
same language as the plea agreement at issue in Ramirez-Gil v.
State, 2014 UT App 122, 327 P.3d 1228. In Ramirez-Gil, this court
held that the written plea agreement clearly communicated the
immigration risks of a guilty plea for a non-citizen and that, by
signing it, the defendant had confirmed that counsel had
reviewed the agreement with him. Id. ¶¶ 9–10. On this same
basis, the State argues that Defendant has failed to demonstrate
deficient performance because he too signed a plea agreement
20160508-CA 5 2018 UT App 45State v. Paredes
that clearly communicated the immigration risks of pleading
guilty.
¶13 We note that the basis for Defendant’s challenge on
appeal is his alleged illiteracy. He asserts that he was unable to
read the plea agreement himself and that his counsel failed to
otherwise inform him of the immigration risks. Thus, in his
view, we should afford little weight to his signature on the plea
agreement because he did not understand the contents of that
plea agreement.1
¶14 But this argument runs headlong into the district court’s
findings regarding Defendant’s “alleged lack of understanding
of the plea agreement or potential immigration consequences.”
Specifically, the court found that Defendant had verbally
informed the court that he had read through the agreement
containing the immigration clause and had understood
everything contained in it. In making this finding, the court
noted that there was nothing in the record up to the point of the
plea hearing “that indicated [Defendant] was illiterate” or
1. Defendant does not argue that a written plea agreement form
is insufficient to fulfill counsel’s Padilla obligations. See Padilla v.
Kentucky, 559 U.S. 356, 369 (2010) (explaining that counsel has no
duty beyond ensuring that his or her “noncitizen client [knows]
that pending criminal charges may carry a risk of adverse
immigration consequences”). We therefore do not express an
opinion as to whether counsel has an independent duty to
inform his or her client of likely immigration consequences when
the client has already been informed of the existence of such
consequences through a written plea agreement confirmed on
the record in open court. But see Ramirez-Gil v. State, 2014 UT
App 122, ¶¶ 9–10, 327 P.3d 1228 (intimating that a written plea
agreement with an identical immigration-consequences clause
satisfied counsel’s Padilla burden).
20160508-CA 6 2018 UT App 45State v. Paredes
otherwise “unable to either read or understand” the
proceedings. The court reviewed the audio record of the plea
hearing and found that Defendant’s answers “were tendered
without hesitation,” and that he did not demonstrate “confusion,
hesitation, or frustration regarding the plea.” The court further
found that Defendant’s answers regarding his understanding of
the plea agreement were “clear, unequivocal, and appropriate.”
¶15 On appeal, Defendant maintains that he cannot read and
therefore could not have understood the written plea agreement.
But he does not explain why we should set aside the district
court’s findings to the contrary. See State v. Stolfus, 2014 UT App
65, ¶ 2, 322 P.3d 1190 (explaining that a district court’s findings
made in resolving a motion to withdraw a guilty plea may only
be set aside if clearly erroneous). Nor is there any obvious basis
for doing so, especially where Defendant’s own affidavit lacks
any mention of illiteracy and Defendant raised a claim of
illiteracy through his sister and only in his reply to the State’s
opposition to his withdrawal motion. Moreover, Defendant did
not raise his alleged illiteracy when asked in open court whether
he had read the plea statement. See supra ¶ 4. We therefore
accept the district court’s finding that Defendant’s claim of
illiteracy is “contrary to [his] representations at the time he
signed the plea agreement and entered his plea.” And because
we are bound by the district court’s finding that Defendant had
not proven his illiteracy, we presume the validity of Defendant’s
statement to the district court that he had read the plea
agreement.
¶16 We next consider whether the plea agreement
appropriately conveyed to Defendant the immigration
consequences of his plea. In Ramirez-Gil, this court considered an
immigration-consequences clause with the same wording as the
one in the plea agreement Defendant reviewed and signed. See v.
Ramirez-Gil, 2014 UT App 122, ¶ 9. The petitioner argued that the
written plea agreement had not adequately informed him of the
20160508-CA 7 2018 UT App 45State v. Paredes
possible immigration consequences of pleading guilty. Id. We
held that, “[b]etween the statements in the written plea form
explaining the deportation consequences of Petitioner’s plea and
Petitioner’s signature on that form confirming that trial counsel
reviewed the plea with him, Petitioner cannot demonstrate that
counsel performed deficiently by failing to advise him that his
plea could affect his immigration status.” Id. ¶ 10. It follows that,
because the clause was adequate to communicate the
consequences to the petition in Ramirez-Gil, it was likewise
adequate to communicate the same consequences to Defendant.
¶17 Before signing the agreement, which was written in both
English and Spanish, Defendant assured the district court that he
had read it and understood everything in it. This assurance
necessarily encompassed the immigration-consequences clause,
and the wording of that clause has previously been upheld as
adequate. Defendant’s affirmative answers to the court and his
signature on the plea agreement therefore demonstrate that he
was informed of the immigration consequences of pleading
guilty. See id. ¶¶ 9–10. And because Defendant has not shown
that he lacked actual knowledge of the possible immigration
consequences, he cannot show prejudice resulting from his
counsel’s failure 2 to separately advise him of those
consequences. See Padilla, 559 U.S. at 364, 366, 369.
¶18 Defendant has not demonstrated that he lacked
knowledge of the immigration consequences of his guilty plea at
the time he entered it. We therefore conclude that the district
court did not abuse its discretion by denying Defendant’s
motion to withdraw the plea.
¶19 Affirmed.
2. See supra ¶ 13 note 1.
20160508-CA 8 2018 UT App 45