State v. Tejeiro

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _______________ 3 Filing Date: December 22, 2014 4 NO. 32,161 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 ALEX TEJEIRO, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Stan Whitaker, District Judge 12 Gary K. King, Attorney General 13 Santa Fe, NM 14 Sri Mullis, Assistant Attorney General 15 Albuquerque, NM 16 for Appellee 17 Ben A. Ortega 18 Albuquerque, NM 19 for Appellant 1 OPINION 2 BUSTAMANTE, Judge. 3 {1} Defendant Alex Tejeiro appeals from the district court’s ruling on his motion 4 to set aside his guilty plea. He argues that he received ineffective assistance from his 5 attorney, who failed to inform him of the immigration consequences of his plea. We 6 agree. Accordingly, we reverse. 7 BACKGROUND 8 {2} Defendant, a Cuban immigrant, pleaded guilty to a single count of drug 9 trafficking in November 2003. He received a conditional discharge, which he 10 completed successfully, and the matter was dismissed with prejudice on August 13, 11 2007. He subsequently learned that his plea had possible immigration consequences 12 and filed a motion to set aside his guilty plea on the grounds that his attorney had 13 been ineffective in failing to inform him of that fact. His motion was filed in March 14 2011. Because the entry of the plea and the motion to withdraw it were heard by 15 different judges, hereafter the court that accepted the guilty plea will be referred to 16 as the “trial court,” and the court that heard Defendant’s motion to withdraw as the 17 “district court.” 18 {3} The district court initially denied Defendant’s motion, declining to apply 19 Paredez retroactively to his plea agreement, which occurred the year before Paredez 1 was decided. State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799. The 2 district court later reconsidered and set an evidentiary hearing to investigate the 3 merits of Defendant’s claim. At that hearing, the district court again denied 4 Defendant’s motion, stating that Defendant’s counsel was ineffective under Paredez 5 but that Defendant had not been prejudiced by his counsel’s incompetence in 6 accepting the guilty plea. Defendant appealed. 7 DISCUSSION 8 {4} When a defendant moves to withdraw his guilty plea, the district court’s denial 9 of that motion is reviewed for abuse of discretion. State v. Carlos, 2006-NMCA-141, 10 ¶ 9, 140 N.M. 688, 147 P.3d 897. An abuse of discretion occurs when a district 11 court’s ruling is clearly erroneous or “based on a misunderstanding of the law[,]” 12 State v. Sotelo, 2013-NMCA-028, ¶ 37, 296 P.3d 1232, or when the court ignored 13 “undisputed facts [that] establish[ed] that the plea was not knowingly and voluntarily 14 given.” Paredez, 2004-NMSC-036, ¶ 5 (internal quotation marks and citation 15 omitted). 16 {5} The voluntariness of a guilty plea depends on whether counsel performed 17 “ ‘within the range of competence demanded of attorneys in criminal cases.’ ” 18 Id. ¶ 13 (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)) An otherwise valid plea 19 can thus be undermined by ineffective assistance from counsel. Garcia v. State, 2 1 2010-NMSC-023, ¶ 46, 148 N.M. 414, 237 P.3d 716. Indeed, we have found that 2 when a defendant enters a plea upon the advice of his attorney, “the voluntariness and 3 intelligence of the defendant’s plea generally depends on whether the attorney 4 rendered ineffective assistance in counseling the plea.” State v. Barnett, 19985 NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323 (emphasis added). As a result, we 6 must assess a motion of this kind on the merits of its claim of ineffective assistance 7 of counsel; such claims are mixed questions of law and fact, and are reviewed de 8 novo. Id. ¶ 13. 9 {6} The United States Supreme Court has established a two-prong inquiry for 10 determining whether a defendant received ineffective assistance of counsel: (1) the 11 trial counsel’s performance fell below the objective standard of reasonability, and (2) 12 counsel’s incompetence prejudiced the defendant. Strickland v. Washington, 466 13 U.S. 668, 687 (1984); see State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 14 P.2d 729. The defendant must demonstrate the satisfaction of both prongs to prove 15 that his plea was not knowing and voluntary and should be set aside. 16 A. Defendant’s Counsel Was Incompetent Under Paredez 17 Our Supreme Court has recognized the paramount importance of informing {7} 18 defendants of immigration consequences stemming from any guilty pleas. Paredez, 19 2004-NMSC-036. A defendant’s attorney has “an affirmative duty” to determine the 3 1 specific risk of deportation for his client and to inform his client of the possible 2 impact on his immigration status if he accepts a guilty plea. Id. ¶ 1. If an attorney 3 provides incorrect advice or misrepresents the consequences of a plea to his client, 4 his performance is objectively unreasonable under Strickland; we require “a definite 5 prediction as to the likelihood of deportation based on the crimes to which a 6 defendant intends to plead and the crimes listed in federal law for which a defendant 7 can be deported.” Carlos, 2006-NMCA-141, ¶ 14. Additionally, the Supreme Court 8 concluded that “an attorney’s non-advice to an alien defendant on the immigration 9 consequences of a guilty plea would also be deficient performance.” Paredez, 200410 NMSC-036, ¶ 16. An attorney who failed to meet his affirmative burden in providing 11 his client with information about deportation risks would thus necessarily satisfy the 12 first prong of the Strickland analysis. Paredez, 2004-NMSC-036, ¶ 16. 13 {8} The United States Supreme Court has also confirmed a defendant’s right to be 14 informed of specific immigration consequences that may stem from guilty pleas, but 15 has not done so as broadly as New Mexico. State v. Favela, 2013-NMCA-102, ¶ 18, 16 311 P.3d 1213, cert. granted, 2013-NMCERT-010, 313 P.3d 251. In Padilla v. 17 Kentucky, the United States Supreme Court held that the duty to inform a defendant 18 of immigration consequences arises when “the deportation consequence is truly 19 clear[.]” 559 U.S. 356, 369 (2010). We have established more stringent requirements 4 1 for defense attorneys, requiring them to inform their clients of consequences short of 2 deportation and to provide guidance even in cases in which implications for 3 immigration status are not “truly clear.” Favela, 2013-NMCA-102, ¶ 18. 4 {9} Paredez was decided in 2004, a year after Defendant pleaded guilty. We have 5 since concluded that the standards regarding ineffective assistance of counsel outlined 6 in Paredez apply retroactively. State v. Ramirez, 2012-NMCA-057, ¶ 5, 278 P.3d 7 569, aff’d sub. nom. Ramirez v. State, 2014-NMSC-023, 333 P.3d 240. These 8 standards are thus applicable to Defendant’s guilty plea. 9 {10} Applying Paredez, we review the record for evidence that Defendant was given 10 appropriate advice regarding the potential impact of a guilty plea on his immigration 11 status. We agree with the district court that such evidence is “[c]learly absent.” 12 Defendant insisted in his own testimony that he had never been informed of the risk 13 of deportation or other possible immigration consequences. His attorney was 14 required to provide him with such information, even for those collateral consequences 15 short of clear deportation risk. Favela, 2013-NMCA-102, ¶ 18. He failed to do so. 16 {11} The record does contain the suggestion that both the trial court and defense 17 counsel wrongly believed the conditional discharge would address deportation 18 concerns. Contemplating the consequences to Defendant if he was “a citizen of 19 another country,” the trial court informed him that he faced possible immigration 5 1 consequences in case of “a conviction on this charge, especially a deferred or 2 suspended sentence[.]” (emphasis added). It then elected to release Defendant on a 3 conditional discharge for a period of five years, and informed Defendant that if he 4 successfully completed probation “the charge will be dismissed and you honestly can 5 tell the world that you do not have the felony conviction[.]” The district court 6 commented that there was a “global understanding at th[e] time” of Defendant’s plea 7 that successful completion of a conditional discharge would allow him to avoid 8 immigration consequences. Defendant later testified that he too operated under this 9 mistaken belief. This understanding was not correct. See 8 U.S.C. 10 § 1101(a)(48)(A)(i) (2012). 11 {12} The trial court’s mistaken beliefs as to the immigration consequences for 12 Defendant may account for counsel’s failure to provide accurate advice—but it does 13 not excuse it. Carlos, 2006-NMCA-141, ¶ 14. Defendant did indeed face possible 14 deportation to Cuba as a result of his guilty plea, irrespective of whether he was 15 afforded a conditional discharge, and it was incumbent on his attorney to know and 16 inform him of that. Paredez, 2004-NMSC-036, ¶ 1; see 8 U.S.C. § 1101(a)(48)(A)(i) 17 (incorporating guilty pleas into the definition of “conviction” for immigration 18 purposes, even if no conviction arises under state law). 6 1 {13} For these reasons, the district court correctly found Defendant’s attorney 2 incompetent under the first prong of Strickland. 3 B. Defendant Was Prejudiced by Ineffective Counsel 4 When an attorney fails to advise his client of the specific immigration {14} 5 consequences of his case, it satisfies the Strickland standard “if the defendant suffers 6 prejudice by the attorney’s omission.” Paredez, 2004-NMSC-036, ¶ 19. In order to 7 demonstrate such prejudice, a defendant must show that the outcome of the plea 8 process was affected by his counsel’s deficient performance. Id. ¶ 20. Our recent 9 jurisprudence adopts “a broad approach to how a defendant can demonstrate 10 prejudice.” Favela, 2013-NMCA-102, ¶ 20. According to the United States Supreme 11 Court in Padilla, the petitioner need only show “that a decision to reject the plea 12 bargain would have been rational under the circumstances.” 559 U.S. at 372. This 13 approach, which is in keeping with New Mexico law, contemplates not merely the 14 possibility of success at trial, but also the opportunity for renegotiation of the plea; 15 it thus focuses on the rationality of rejecting the plea offer rather than the State’s 16 evidence or a defendant’s maximum exposure compared to the actual offer. Favela, 17 2013-NMCA-102, ¶ 21. 18 {15} A defendant’s testimony may comprise part of the evidence for his claim of 19 prejudice, but generally the claim cannot rest solely on uncorroborated self-serving 7 1 statements. Patterson v. LeMaster, 2001-NMSC-013, ¶ 29, 130 N.M. 179, 21 P.3d 2 1032. Corroborating evidence may include pre-conviction statements or actions that 3 indicate the defendant’s preferences or intentions. Id. ¶ 30. A defendant’s behavior 4 after the plea has been entered may also corroborate his statements, e.g. if he acts 5 quickly to withdraw his acceptance of the plea agreement upon learning of 6 immigration consequences. Paredez, 2004-NMSC-036, ¶ 22. Our courts have placed 7 no limit on the types of relevant evidence a defendant may provide to demonstrate 8 that he would have rejected the plea if given appropriate advice. State v. Edwards, 9 2007-NMCA-043, ¶ 36, 141 N.M. 491, 157 P.3d 56. This portion of the Strickland 10 analysis cannot be made according to “mechanical rules,” but must incorporate a 11 variety of factors in order to determine what effect counsel’s incompetent assistance 12 may have had. Barnett, 1998-NMCA-105, ¶ 32. 13 {16} The district court’s analysis in this case focused on three factors: (1) the 14 absence of pre-conviction statements in which Defendant “maintained his innocence” 15 or expressed a “desire[] to fight the charges and take the case to trial[,]” (2) the 16 benefits of the plea, and (3) the strength of the State’s case against Defendant. It did 17 not determine whether Defendant’s testimony was merely self-serving or not and 18 limited its evaluation of corroboration to particular types of pre-conviction evidence. 19 It also placed inappropriate emphasis on the strength of the State’s case and the 8 1 probable similarity of result if Defendant had chosen to exercise his trial rights. 2 Because Favela, in which this Court clarified how a defendant might demonstrate 3 prejudice, was decided in 2013, the district court lacked the benefit of this 4 clarification at the time of its decision in 2012, and thus improperly relied on these 5 factors, particularly the strength of the State’s case, in its decision. Favela, 20136 NMCA-102, ¶ 20. 7 {17} Guided by Padilla and Favela, we review the record for a demonstration of 8 prejudice. There are several factors in addition to Defendant’s testimony that 9 corroborate his claims and demonstrate prejudice. First, we consider the harshness 10 of deportation and attribute proper weight to that harshness as an element of any 11 immigrant’s decision-making process. Paredez, 2004-NMSC-036, ¶ 18. Second, we 12 evaluate Defendant’s testimony itself, which is corroborated in the record at the time 13 of Defendant’s plea, with references both oblique and direct to Defendant’s concern 14 about his immigration status and his attachment to this country. We also recognize 15 that Defendant’s post-conviction behavior weighs in his favor, though less 16 significantly in this case than the pre-conviction circumstances. Third, we determine 17 that the factors considered by the district court, when afforded their due weight under 18 our current legal standards, were both factually and legally inadequate grounds for 19 disposing of Defendant’s claim of prejudice. Taken in conjunction with his own 9 1 testimony, the totality of the factors presented firmly establishes a reasonable 2 probability that Defendant would have rejected the plea offer if his attorney had 3 competently advised him. Finally, we conclude that under these circumstances 4 Defendant’s plea was not made knowingly and voluntarily and that it was, therefore, 5 error to accept it. 6 i. Harshness of Immigration Consequences 7 As the Supreme Court noted in Paredez, “Deportation can often be the harshest {18} 8 consequence of a non-citizen criminal defendant’s guilty plea[.]” Paredez, 20049 NMSC-036, ¶ 18. The extremity—and often finality—of deportation exposure 10 heightens the probability of prejudice because it is “a particularly severe penalty” and 11 can be “the most important” result of a guilty plea for non-citizen defendants. Padilla, 12 559 U.S. at 364-65. 13 {19} Defendant testified that he had been a political prisoner in Cuba and that he 14 feared he would face the same fate if forced to return. He stated that the Cuban 15 government had deprived him of all his property when he came to the United States. 16 He described himself as “not in agreement with Fidel [Castro],” which he believed 17 would result in cruel treatment in his native country even if he avoided imprisonment. 18 The district court apparently agreed that conditions in Cuba are “particularly 19 horrific.” 10 1 {20} The record indicates that the district court considered the actual probability of 2 Defendant’s deportation to Cuba, noting, “They don’t deport people back to Cuba 3 from the United States technically.” The State expressed a similar opinion that “the 4 United States and Cuba do not have an agreement to return convicted felons back to 5 Cuba under any circumstances[.]” 6 {21} The arrangements for deportation between the United States and Cuba are a 7 political matter outside the control of either the court or Defendant and are subject to 8 change. Moreover, the district court’s statements do not accurately reflect the current 9 status of Cuban immigrants convicted of deportable offenses. See 8 U.S.C. 10 § 1231(a)(3), (6) (2012); see also, e.g., Perez v. State, 120 So. 3d 49, 50 (Fla. Dist. 11 Ct. App. 2013) (stating that the defendant’s counsel wrongly advised that the 12 defendant could not be deported because he was Cuban, when in fact deportation 13 consequences were “inevitable” for his drug offenses). Defendant himself attempted 14 to inform the district court of this fact. 15 {22} Irrespective of the likelihood of actual deportation to countries such as Cuba, 16 deportable aliens may be detained within the United States pending their removal. 17 Zadvydas v. Davis, 533 U.S. 678, 701 (2001); 8 C.F.R. § 241.4, 241.5 (2012). In this 18 case, Defendant pleaded guilty to a charge of drug trafficking. Though he 19 successfully completed a conditional discharge and has no criminal record in the state 11 1 of New Mexico, this plea constituted a conviction of an aggravated felony for 2 immigration purposes. 8 U.S.C. § 1101(a)(43)(B); 8 U.S.C. § 1101(a)(48)(A)(i); 18 3 U.S.C. § 924(c)(2) (2012). Federal law mandates his detention and attempted 4 deportation as a result. 8 U.S.C. § 1226(c)(1)(B) (2012). He is not eligible for 5 asylum regardless of the conditions and consequences he may face if returned to 6 Cuba. 8 U.S.C. § 1158(b)(2)(B)(i) (2012). Defendant has not yet been detained or 7 removed, but immigration proceedings have been initiated. Regardless of the state 8 of those proceedings, it is the possibility of deportation—in addition to other 9 immigration consequences short of deportation—that we assess for purposes of 10 determining prejudice. Carlos, 2006-NMCA-141, ¶ 16. We recognize that 11 deportation is a particularly difficult and harsh result for many defendants, Paredez, 12 2004-NMSC-036, ¶ 18, and this Defendant in particular testified that he was “abused 13 in Cuba” and imprisoned for his political views. For reasons like these, we analyze 14 prejudice in immigration-based ineffective assistance of counsel claims differently 15 from other types of claims. Favela, 2013-NMCA-102, ¶ 21. The district court failed 16 to account for the severity of this punishment and the increased likelihood that a 17 person faced with deportation might reconsider his decision to accept a guilty plea. 18 Paredez, 2004-NMSC-036, ¶ 18. 12 1 ii. Defendant’s Testimony and Corroborating Evidence 2 Defendant argues that he was prejudiced “by accepting a plea that made certain {23} 3 his deportation with the prospect of indefinite detainment to a country where he had 4 been a political prisoner, where he had no employment, family[,] or property, [and] 5 where he was subjected to abuse[.]” He claims that there is a reasonable probability 6 that he would instead have elected to go to trial, which “would have provided him 7 [the] opportunity to maintain his employment, to stay close to his family, and to live 8 as a free resident[.]” He consistently maintained that his immigration status within 9 this country is of utmost importance to him, and stated that he acted to set aside his 10 guilty plea upon realizing that it carried negative consequences for that status. He 11 also asserted that he would have rejected the plea offer at the outset if he had known 12 of the possibility of deportation. We find corroboration for several of Defendant’s 13 claims in the record. 14 {24} “Deportation can often be the harshest consequence of a non-citizen criminal 15 defendant’s guilty plea,” Paredez, 2004-NMSC-036, ¶ 18, particularly in cases like 16 Defendant’s, where the immigrant has established roots within this country. For over 17 a decade, Defendant has lived in the United States with his family. We consider 18 Defendant’s attachment to the United States as one of the types of evidence he may 19 present to corroborate his current claims. Edwards, 2007-NMCA-043, ¶ 36; see also 13 1 United States v. Couto, 311 F.3d 179, 191 (2d Cir. 2002), abrogated on other 2 grounds by Padilla, 559 U.S. 356 (recognizing “[the d]efendant’s overriding concern 3 is remaining in the United States and hence she very likely would not have pleaded 4 guilty if she had understood the deportation consequences of [her] plea”); Sial v. 5 State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007) (finding a reasonable probability that 6 the defendant would have rejected the plea if properly advised due to the “special 7 circumstances” that he had a child and wife in the United States). 8 {25} In his testimony, Defendant identified that seeing his children, who reside in 9 the United States, was always a priority. The trial court’s personal notes corroborate 10 the assertion that Defendant expressed that sentiment prior to the court’s acceptance 11 of his guilty plea, and that he made the court aware that he had a daughter residing 12 in Miami. It is evident from these notes and the record that all parties, including the 13 court, realized that Defendant’s immigration status was threatened. 14 {26} Defendant’s attorney provided incompetent advice regarding the impact of the 15 conditional discharge, as the district court properly concluded, and the trial court 16 itself made statements suggesting it believed that Defendant would not have a 17 conviction if he successfully completed the conditional discharge. The trial court 18 coupled this explanation with references to Defendant’s foreign citizenship—clearly 19 implying that all present knew of or suspected his status and intended to provide 14 1 Defendant an option that preserved it. The trial court’s notes reveal that it 2 specifically considered sentencing options in light of Defendant’s immigration status 3 and the possibility of deportation. In noting that Defendant requested the conditional 4 discharge, the court listed only two facts: that Defendant was deportable and that he 5 had a daughter in Miami. The record thus corroborates Defendant’s claim that the 6 threat of deportation ranked high amongst his concerns in these proceedings, and that 7 he communicated that fact to both his attorney and the trial court. 8 {27} Defendant’s pre-conviction efforts to inform the trial court of his circumstances 9 and his clear, acknowledged intent to avoid deportation and other immigration 10 consequences at all times during the plea proceedings strongly support the conclusion 11 that he would have rejected the plea if properly advised. See Kovacs v. United States, 12 744 F.3d 44, 53 (2d Cir. 2014) (stating that prejudice was demonstrated where 13 defense counsel had negotiated the plea in a certain way “for the sole reason that 14 defense counsel believed it would not impair [the defendant’s] immigration status”). 15 The district court erred in neglecting these portions of the record in its analysis. 16 {28} Furthermore, Defendant is not limited to pre-conviction behavior in his 17 demonstration of prejudice; the district court should also have considered his post18 conviction behavior. Edwards, 2007-NMCA-043, ¶ 36. In Paredez, our Supreme 19 Court held that the speed of a defendant’s post-conviction reaction upon discovering 15 1 the adverse immigration consequences of his guilty plea could be considered when 2 weighing the reasonable probability that he would have acted differently with 3 competent advice. Paredez, 2004-NMSC-036, ¶ 21 (stating that such an inference 4 of prejudice is “logical” but not “conclusive[]”). 5 {29} In this case, Defendant claims that his goal is to obtain citizenship. He did 6 apply for naturalization, but was determined ineligible. The letter informing him of 7 this fact also contained reference to the possibility that he was “amenab[le] to 8 removal,” bolstering the likelihood that Defendant discovered the threat to his 9 immigration status only upon receipt of the letter in November 2010. He testified that 10 he researched the issue himself and then immediately obtained a lawyer. He moved 11 to withdraw his guilty plea in early 2011. Though these actions cannot be 12 “conclusive[,]” we consider them alongside the other corroborating evidence 13 Defendant presented to demonstrate prejudice and recognize that they further support 14 his claim that he would have rejected the plea offer if provided reasonable assistance. 15 Id. 16 {30} The district court failed to consider Defendant’s post-conviction actions at all. 17 It assessed only pre-conviction statements, and further narrowed its evaluation to two 18 methods for Defendant to demonstrate prejudice: (1) protestations of innocence, and 19 (2) expressions of his desire to go to trial. Though either of these two methods could 16 1 have been employed to demonstrate prejudice, Defendant may use a wide array of 2 other evidence to show the prejudicial effect of the incompetent counsel. Edwards, 3 2007-NMCA-043, ¶ 36. The district court improperly overlooked the other 4 undisputed corroboration within the record. It thus clearly erred in saying that the 5 “only evidence presented in this case [was] the hearing testimony of [D]efendant.” 6 iii. The District Court Improperly Relied on Lesser Factors 7 The district court placed particular emphasis on the strength of the State’s case {31} 8 in determining whether Defendant had suffered prejudice. The State had a 9 convincing prima facie case against Defendant; a person cooperating with the police 10 arranged a purchase of five hundred dollars’ worth of crack-cocaine, which resulted 11 in law enforcement officers arresting Defendant as he arrived with 52 rocks worth 12 approximately five hundred dollars. 13 {32} In conjunction with the strength of the State’s case, the district court considered 14 the favorability of the plea agreement. In Paredez, the Court observed that the 15 defendant received a “substantial benefit” from his plea agreement, which did not 16 require incarceration; “It is conceivable that a non-citizen might opt to plead guilty 17 and accept deportation to avoid serving a prison sentence, rather than face the 18 possibility of both incarceration and deportation.” 2004-NMSC-036, ¶ 22. In this 19 case, the decision was arguably further simplified when Defendant received the 17 1 conditional discharge rather than a term of imprisonment. 2 {33} The district court weighed the favorability of the plea agreement against 3 Defendant’s “likely conviction” on the facts as presented at the plea colloquy, which 4 may have exposed Defendant to immigration proceedings regardless, and determined 5 that Defendant did not demonstrate prejudice. Its ruling also faulted Defendant for 6 not “maintain[ing] his innocence” or expressing a desire for trial prior to conviction. 7 We note that protestations of innocence and expressions of desire for trial are both 8 possible examples of pre-conviction behavior that, if present, would be a valid part 9 of the prejudice analysis. Patterson, 2001-NMSC-013, ¶ 30 (stating that the 10 defendant’s claims of innocence were examples of pre-conviction behavior that may 11 indicate disposition to reject the plea, and were considered alongside other evidence). 12 Neither, however, is required to show prejudice, nor do they constitute an exhaustive 13 list of ways in which a defendant may demonstrate prejudice. Edwards, 200714 NMCA-043, ¶ 36. We also find that the district court’s heavy, almost exclusive 15 reliance on the strength of the State’s case and the benefits of the plea was improper 16 because it contradicts the standard set forth in Favela. 2013-NMCA-102, ¶ 21. 17 {34} The strength of the State’s case may be considered as part of a larger analysis 18 of prejudice, Carlos, 2006-NMCA-141, ¶ 20, but “should not weigh as heavily, 19 because the relevant initial inquiry is simply whether, given fully accurate 18 1 information about the collateral consequence, it is reasonably probable that the 2 defendant would have rejected the plea offer.” Favela, 2013-NMCA-102, ¶ 21 3 (alteration, omission, internal quotation marks, and citation omitted). Even in cases 4 in which acquittal is unlikely and the possible penalty for conviction at trial is severe, 5 non-citizen defendants “rationally could have been more concerned about a near6 certainty of multiple decades of banishment from the United States than the 7 possibility of [conviction].” United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 8 2011), abrogated on other grounds by Chaidez v. United States, 133 S. Ct. 1103 9 (2013); State v. Sandoval, 249 P.3d 1015, 1022 (Wash. 2011) (en banc) (rejecting the 10 plea even at the risk of conviction at trial would be particularly reasonable for a 11 defendant who “had earned permanent residency and made this country his home”). 12 {35} The district court expressed the opinion that, based on the State’s presentation, 13 “Chances were pretty high that [the] evidence was going to be presented to a jury, that 14 he’s going to be convicted.” The court stated that Defendant “got . . . the benefit of 15 the plea” and received “everything that his attorney promised, but for this unforeseen, 16 by everybody, consequence.” It called the situation “tragic.” 17 {36} However, the district court also agreed that Defendant probably did not obtain 18 a better result by his plea than he would have at trial. At the time of the plea, the trial 19 court considered only three options: suspended sentence, deferred sentence, and 19 1 conditional discharge. All parties agreed that probation was appropriate for 2 Defendant, including the State. In addition to offering a sentence without any 3 incarceration time, the State did not object to arguments for a conditional discharge. 4 As the district court itself acknowledged, had a trial taken place, Defendant “probably 5 would have gotten probation” because he “was really a mule.” The risk that 6 Defendant faced at trial was therefore a minimal one, as he was likely to attain 7 substantially the same result but would retain the chance to avoid immigration 8 consequences—a chance he might rationally have preferred to the then-unknown 9 automatic consequences of his guilty plea. 10 {37} During his testimony at the evidentiary hearing in 2012, Defendant asserted an 11 affirmative defense to the trafficking charge, claiming he operated as a mule under 12 duress. He admitted that he had not discussed with his attorney the possibility of 13 using this defense at trial, as his attorney strongly encouraged him to accept the plea. 14 Though the existence of an affirmative defense in this case would increase the 15 probability that Defendant might have gone to trial rather than face immigration 16 consequences, Defendant’s lawyer never testified and so could offer no evidence 17 regarding the possible existence of an affirmative defense. Both parties agreed that 18 the attorney could not remember the case after the significant time lapse. Without 19 further corroboration of the elements of this defense and its likelihood of succeeding 20 1 at trial, we cannot weigh it against the strength of the State’s evidence at the time of 2 the plea proceeding. Hill, 474 U.S. at 59 (stating that for ineffective assistance of 3 counsel claims involving affirmative defenses, “the resolution of the ‘prejudice’ 4 inquiry will depend largely on whether the affirmative defense likely would have 5 succeeded at trial”). 6 {38} Whether or not the affirmative defense had merit, the record contains clear 7 indications that the parties identified substantial mitigation in the case, which they 8 considered in both plea negotiations and sentencing before agreeing that Defendant 9 merited probation. At the guilty plea hearing, Defendant’s attorney referenced a 10 meeting in chambers, reminding the court that it was “aware of how it came down” 11 and thus asking the court for a conditional discharge. The attorney further stated, “He 12 was—in discussions in chambers, as you’ll recall, Judge, the indication was, he was 13 a mule[.]” The court also specifically reminded Defendant that he was not to discuss 14 whether the cocaine belonged to him or whether he was “only helping somebody 15 else” in his colloquy, stating only whether he had possessed it. These references are 16 substantial enough to corroborate portions of Defendant’s recent testimony and to 17 underline that Defendant received no extreme benefit from pleading guilty as 18 compared to his probable trial results. The district court agreed, but found that in 19 either circumstance Defendant would have been exposed to the same possibility of 21 1 deportation—and therefore he was not prejudiced by his plea. “[W]e don’t have 2 anything that could have been different,” it stated. 3 {39} The district court manifestly applied the wrong standard to Defendant’s motion. 4 It weighed Defendant’s probable result at trial against the terms of his current plea, 5 concluding that they were essentially the same. This conclusion ignores the 6 possibility that an affirmative defense might have existed that could have impacted 7 the results of the trial. Defendant is not required to demonstrate that he would have 8 obtained a better result at trial than he received from his plea. Edwards, 20079 NMCA-043, ¶ 34. He need only demonstrate a reasonable probability that he would 10 have rejected the plea as offered had he known of its immigration consequences. 11 Favela, 2013-NMCA-102, ¶ 21. Had Defendant rejected the plea, he would have had 12 the opportunity to renegotiate its terms—perhaps, e.g., agreeing to plead to an offense 13 that would not be defined as an aggravated felony under federal immigration law—or 14 take his case to trial, where any result may have been obtained. Id. 15 {40} The district court’s undue emphasis on the strength of the State’s case and the 16 apparent appeal of the plea offer, which resulted in a relatively favorable disposition 17 of the conditional discharge, also fails to account for both the unique hardship of 18 immigration consequences and the normal operation of plea bargain negotiations. Id. 19 ¶ 20. Possible deportation is such a drastic result that, in cases in which a defendant 22 1 is unlikely to receive much prison time, he “is usually much more concerned about 2 immigration consequences than about the term of imprisonment.” Paredez, 20043 NMSC-036, ¶ 18 (internal quotation marks and citation omitted). Defendant’s 4 rejection of the plea offer in this case would have been entirely rational if he had been 5 aware that he might be deported as a result of accepting it; both the factual aspects 6 of the record and the Defendant’s own expressed eagerness to defend his immigration 7 status suggest that there is indeed a reasonable probability that he would have 8 behaved differently if afforded the effective counsel to which he was entitled. 9 {41} All parties appear to have been acting with the conscious intent to preserve 10 Defendant’s immigration status but pursued that end operating on mistaken beliefs. 11 Under these circumstances, a plea to a lesser charge was a distinct possibility if 12 Defendant and his counsel had been properly informed. Certain possession charges, 13 for example, are not aggravated felonies under federal law and would have resulted 14 in less dramatic collateral consequences. 8 U.S.C. § 1227(a)(2)(B)(i) (2012) (stating 15 that controlled substance offenses short of aggravated felonies do not require 16 mandatory deportation). We therefore reject the district court’s finding that there was 17 no prejudice to Defendant. 18 iv. Voluntariness of Plea When Counsel Is Ineffective 19 The voluntariness of a guilty plea depends on whether counsel provided the {42} 23 1 effective assistance to which defendants are constitutionally entitled. Garcia, 20102 NMSC-023, ¶ 46; Barnett, 1998-NMCA-105, ¶ 12. Improper advice regarding 3 immigration consequences can undermine the knowing and voluntary nature of a 4 guilty plea and render it invalid. Paredez, 2004-NMSC-036, ¶ 19. In this case, 5 “undisputed facts” in the record established that Defendant never received competent 6 counsel but rather received incorrect advice regarding the immigration consequences 7 of his plea. Id. ¶ 5. Defendant also established a “reasonable probability” that he 8 would have rejected the plea if aware of those consequences, thus demonstrating 9 prejudice. Patterson, 2001-NMSC-013, ¶ 18 (internal quotation marks and citation 10 omitted). In these circumstances, Defendant’s plea could not have been knowing and 11 voluntary, and it was thus manifest error to accept it. Barnett, 1998-NMCA-105, ¶ 12 12; Sotelo, 2013-NMCA-028, ¶ 37. 13 {43} In analogous circumstances regarding sex offender registration, we found that 14 a defendant demonstrated prejudice when: (1) he later testified that he “would have 15 fought” the charge if he had known it was a sex offense that would subject him to 16 registration; (2) he presented other evidence that the State and his own attorney failed 17 to realize the offense would require registration—and consequently did not advise 18 him of that fact; and (3) the consequences, namely sex offender registration, were 19 harsh. State v. Trammell, 2014-NMCA-107, ¶ 18, 336 P.3d 977 (internal quotation 24 1 marks and citation omitted). We concluded that, in such circumstances, sex offender 2 registration prejudiced the defendant because “it constituted a breakdown in the 3 fundamental fairness of the proceedings.” Id. 4 {44} In this case, Defendant testified unequivocally at the evidentiary hearing, “I 5 would rather be in prison here, other than going back to Cuba.” He claims that he 6 would have rejected the plea outright had he known of the consequences for his 7 immigration status. He also presented evidence, which indeed persuaded the district 8 court, that his lawyer and the trial court both seemed unaware of the specific impacts 9 that would stem from a guilty plea, and that no one provided him with effective, 10 reasonable advice with which he might make an informed decision. In both of these 11 respects, the present case closely mirrors our ruling in Trammell; the possible result 12 of deportation, however, has been acknowledged a uniquely grave consequence. 13 Favela, 2013-NMCA-102, ¶ 20. Therefore, the same logic applies here as in 14 Trammell—the collateral consequences to which Defendant is now exposed 15 constitute a breakdown in the fundamental fairness of the plea process and require 16 that his guilty plea be set aside. Trammell, 2014-NMCA-107, ¶ 18. 17 CONCLUSION 18 {45} The district court properly concluded that Defendant’s counsel acted 19 incompetently, but in its prejudice analysis it failed to consider the evidence that 25 1 Defendant’s testimony was not merely “self-serving,” but could be corroborated by 2 the record. Patterson, 2001-NMSC-013, ¶ 29. It also applied an improper standard 3 for assessing the likelihood that Defendant would have rejected the plea. Noting the 4 likelihood that Defendant would obtain a similar sentence to the one he received 5 under the plea agreement if he went to trial, the district court here improperly asked 6 “[w]ould the result reasonably [have] been different than it is today?” rather than 7 whether there was a “reasonable probability” that Defendant would have rejected the 8 plea with competent advice. Defendant was not obligated to show that he might have 9 obtained a “different result” at trial than he obtained with his plea; he was only 10 required to show that rejecting the plea was a rational, reasonably likely course of 11 action in light of his circumstances. Favela, 2013-NMCA-102, ¶ 20. We determine 12 that he did so. 13 {46} For this reason, and in light of the similarities to Trammell, we reverse the 14 district court’s denial of Defendant’s motion to set aside his guilty plea and remand 15 for further proceedings in keeping with this decision. 16 17 18 {47} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE, Judge 26 1 WE CONCUR: 2 __________________________________ 3 MICHAEL E. VIGIL, Judge 4 __________________________________ 5 TIMOTHY L. GARCIA, Judge 27

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