Opinion
NO. 03-16-00272-CR
08-24-2017
Ex Parte Jaime Alejos Yanez
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 35606B , HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Jaime Alejos Yanez appeals from the trial court's order denying his application for writ of habeas corpus challenging a Class A misdemeanor conviction for possession of a controlled substance. See Tex. Code Crim. Proc. art. 11.072; Tex. Pen. Code § 12.44(b); Tex. Health & Safety Code § 481.115. Appellant argues that his counsel made a "material misrepresentation that rendered [his] plea [of guilty] unknowing or involuntary due to ineffective counsel." Because we conclude that the trial court did not abuse its discretion, we affirm the trial court's order denying appellant's application for writ of habeas corpus.
Background
Appellant is a lawful resident alien but not a citizen of the United States. In February 2009, pursuant to a plea agreement, appellant entered a plea of guilty to the offense of possession of a controlled substance, see Tex. Health & Safety Code § 481.115, and was prosecuted under section 12.44(b) of the Texas Penal Code for a Class A misdemeanor. See Tex. Penal Code § 12.44(b) (authorizing prosecution of state jail felony as Class A misdemeanor).
Prior to the trial court's acceptance of appellant's plea of guilty, appellant was admonished on the record about possible immigration consequences in the following exchange between appellant and his trial attorney:
[Defense Counsel]: Mr. Yanez, you're not a citizen of this country, are you?
[Appellant]: No, sir.
[Defense Counsel]: Okay. And I—you and I have talked about what this plea and the charge could lead, and may lead—
[Appellant]: Yes, sir.
[Defense Counsel]: —to your deportation.
[Appellant]: Yes, sir.
[Defense Counsel]: You understand that? And knowing that—I haven't made any promises to you in regards to whether you would be deported or not based on this plea today?
[Appellant]: Yes, sir.
[Defense Counsel]: Have I?
[Appellant]: No, sir.
[Defense Counsel]: Okay. Knowing that your plea of guilty today could affect your immigration status in this country, do you still want to continue with this plea?
[Appellant]: Yes, sir.
Prior to his plea of guilty, appellant and his trial attorney also signed a "Felony Admonitions to the Defendant," acknowledging that appellant understood "the admonitions given above" and that he was "aware of the consequences of the plea." Paragraph 4 of the admonishments addressed possible immigration consequences from a plea of guilty:
4. If the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.See Tex. Code Crim. Proc. art. 26.13(a)(4). After accepting his plea, the trial court followed the plea agreement and assessed punishment at confinement for 175 days plus fines, court costs, and restitution but suspended the sentence of confinement and placed appellant on community supervision for two years. See id. art. 42A.053. Because appellant successfully fulfilled the conditions of community supervision, the trial court entered an order in February 2011 discharging appellant from the terms and conditions of community supervision.
Appellant filed his post-conviction application for writ of habeas corpus in February 2016. He alleged that his plea was not made knowingly or voluntarily because he "believed that, upon successful completion of probation, he would no longer face deportation consequences." He also filed a first amended application for writ of habeas corpus in which he added an ineffective assistance of counsel claim to support his position that his plea of guilty was not made voluntarily.
The trial court held an evidentiary hearing in February 2016 on appellant's application for writ of habeas corpus. The witnesses were appellant and the attorney who represented him at the plea hearing in 2009. Appellant testified that a different attorney, who was representing him prior to the plea hearing, affirmatively advised him at a meeting at the attorney's office that he "should be fine because [the attorney] was going to get [the case] dropped down to a Class B misdemeanor" and that the case against him "was not deportable." Appellant further testified that his trial attorney on the day of the plea hearing "pretty much told [appellant] the same thing that [the other attorney] had originally told [appellant] in [the attorney's] office." Appellant testified that he relied on these comments from his attorneys in deciding to enter his plea of guilty and that he only "found out that it was a deportable case" when he applied for citizenship in 2014. Appellant, however, admitted that he signed the Felony Admonitions to the Defendant and that he was advised during the 2009 plea hearing that deportation was possible based on a plea of guilty.
Appellant's trial attorney testified that he only had recollection of his normal practices, but he acknowledged that he signed next to appellant's signature on the Felony Admonitions to the Defendant and that his normal practice was to "go over each and every one of these paragraphs, whether or not they apply or not." He further testified that he "would have gone over paragraph [No. 4] with [appellant], for sure" and denied that he would have told appellant "that this case was not a deportable case." As to the plea agreement that was reached, he explained its relation to appellant's immigration status as follows:
I really had no control over what I.N.S. would do or not do. The only thing I can do is get the best possible deal for Mr. Yanez, and go over and counsel him on the potential consequences, and weigh the analysis or what—weigh the risk of not taking a deal and going to trial, or taking a felony conviction.See Tex. Penal Code § 12.44(b). The trial attorney also testified that he consulted with an immigration attorney prior to appellant's plea of guilty and that he was "sure that [he] consulted with Mr. Yanez and told him what [the trial attorney] learned." From what he learned from the immigration attorney, the trial attorney "wasn't sure that it would result in deportation, but it was a possibility." The State's exhibit included copies of the Felony Admonitions to the Defendant; Felony Waivers, Confession, and Agreement; and the transcript of the 2009 plea hearing.
So basically if you look at a 12.44(b) with probation that short of a dismissal the only option to have absolutely no chance of an immigration consequence is to try the case, and you would have to look at the facts of a case and the circumstances surrounding his arrest and the indictment, and you would have to—you would talk to the—I'm sure I talked to Mr. Yanez about the risk [of] going to trial.
Following the hearing, the trial court denied appellant's application for writ of habeas corpus. The trial court also entered findings of fact and conclusions of law. The trial court's conclusions of law included that "[appellant]'s decision to enter his plea of Guilty as part of the plea bargain agreement was made freely, voluntarily, intelligently, and knowingly" and "[appellant] has failed to prove that performance of [his trial attorney at the 2009 plea hearing] was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment." This appeal followed.
Analysis
In one issue, appellant challenges the trial court's denial of his application for writ of habeas corpus on that ground that his counsel made a "material misrepresentation that rendered [his] plea unknowing or involuntary due to ineffective counsel." He asserts that his attorneys made a "material misrepresentation" when they told him that he "'had nothing to worry about' concerning immigration consequences when entering a guilty plea to a controlled substance offense" because the statement was "plainly erroneous" and that "a direct result of the material misrepresentation" is that he "is now subject to deportation and his application for citizenship [is] in jeopardy." See 8 U.S.C. § 1227(a)(2)(B)(i) (generally subjecting alien convicted of offense relating to controlled substance to deportation).
See also 8 U.S.C. § 1229b (allowing in certain circumstances cancellation of removal and adjustment of status to alien who is deportable). In its findings of fact, the trial court found that appellant "provided no evidence that there was any existing or threatened action by federal immigration officials against [appellant] as of [the date of the 2016 hearing]."
Standard of Review
"To prevail upon a post-conviction writ of habeas corpus, applicant bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief." Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). In conducting our review, we review the facts in the light most favorable to the trial court's ruling and, absent an abuse of discretion, uphold the ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). "A trial court abuses its discretion when it acts without reference to any guiding rules or principals or when it acts arbitrarily or unreasonably." Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref'd).
In an article 11.072 post-conviction habeas corpus proceeding, the trial judge is the sole finder of fact. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011). Thus, in conducting our review, we afford almost total deference to the trial court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Thompson, 153 S.W.3d 416, 417-18 (Tex. Crim. App. 2005). In addition, we afford almost total deference to the trial court's application of law to the facts if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). Finally, when the resolution of the ultimate question turns on the application of legal standards, we conduct a de novo review. Id.
Voluntariness of Plea and Ineffective Assistance of Counsel
A defendant has the right to effective assistance of counsel in deciding whether to enter a guilty plea. See Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012) (explaining that decision to enter guilty plea based on erroneous advice from counsel is not voluntary or knowing); Ex parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009) (describing counsel's duties to provide effective assistance of counsel during plea proceedings). When a defendant claims his guilty plea is involuntary due to ineffective assistance of counsel, the defendant must show: (1) counsel's advice with respect to the plea offer did not fall within the wide range of competence demanded of attorneys in criminal cases, and (2) there is a reasonable probability that, but for counsel's deficient performance, the defendant would not have accepted the offer and pled guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010); see also generally Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring defendant to show that trial counsel's performance was deficient and that deficient performance prejudiced defendant to establish claim of ineffective assistance of counsel).
In Padilla v. Kentucky, the Supreme Court of the United States held that, for purposes of the Sixth Amendment right to effective assistance of counsel, "counsel must inform her client whether his plea carries a risk of deportation." 559 U.S. 356, 374 (2010). The Supreme Court, however, held in Chaidez v. United States, that the rule announced in Padilla did not apply retroactively. 568 U.S. 342, 344, 357 (2013). The Texas Court of Criminal Appeals also has held that the rule announced in Padilla does not apply retroactively under the Texas Constitution. See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013). Thus, because appellant's conviction was final in 2009 and Padilla was decided in 2010, pre-Padilla law applies. See Chaidez, 568 U.S. at 344, 457; Ex parte De Los Reyes, 392 S.W.3d at 679; Ex parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Under pre-Padilla law, "while the Sixth Amendment assures an accused of effective assistance of counsel in criminal prosecutions, [it] does not extend to 'collateral' aspects of the prosecution," see Ex parte Luna, 401 S.W.3d at 334 (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)), and immigration consequences of a plea of guilty generally were considered collateral and did not support an ineffective assistance of counsel claim, see id. at 334-35 (concluding that trial court did not abuse its discretion in denying habeas application because defendant "had no constitutional right to effective assistance of counsel in warning about the collateral immigration consequences of his guilty plea" under pre-Padilla law); see also State v. Guerrero, 400 S.W.3d 576, 580, 588 (Tex. Crim. App. 2013) (explaining that defendant who had a "1998 deferred-adjudication misdemeanor judgment" was not entitled, as matter of constitutional law, "to habeas-corpus relief based on a failure of either an attorney or the trial judge to warn him about collateral deportation consequences"); State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999) (noting that generally guilty plea "will not be rendered involuntary by lack of knowledge as to some collateral consequence" and that "deportation is generally considered a collateral consequence").
A defendant in Texas, however, is statutorily entitled to admonishments about possible immigration consequences from a guilty plea pursuant to the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 26.13(a)(4). Consistent with this statutory requirement and pre-Padilla law, the trial court concluded in its conclusions of law that "it was the duty of this Court and [appellant's attorney] to inform [appellant] that his plea of guilty to the offense charged . . . could result in his deportation, exclusion from admission to this country, or denial of naturalization under federal law," see id., but that appellant's attorney "was not required [in February 2009] to determine and advise [appellant] if the offense in this Cause actually would result in deportation if [appellant] was convicted."
The trial court's conclusions of law also included that the Padilla decision did not apply and appellant has not argued otherwise.
To support his position that his plea was involuntary, appellant focuses on his attorney's "material misrepresentation" that he "had nothing to worry about." See Ex parte Moussazadeh, 361 S.W.3d at 689 (explaining that "defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and knowingly"); Ex parte Saldana, No. 03-09-00403-CR, 2010 WL 2789032, at *2 (Tex. App.—Austin July 16, 2010, no pet.) (mem. op., not designated for publication) (explaining that "misinformation—even regarding a matter about which a defendant is not entitled to be informed—may render a plea involuntary if the defendant shows that the plea was actually induced by the misinformation" (citing Ex parte Moody, 991 S.W.2d 856, 857 (Tex. Crim. App. 1999))). Appellant further argues that his issue turns on credibility and focuses on his testimony as compared with his trial attorney's testimony at the 2016 hearing on his application for writ of habeas corpus. Appellant argues that he "specifically remembered meeting with the court appointed attorneys and remembered being told he would have nothing to worry about" if he entered a guilty plea and compared his specific recollections with his trial attorney's testimony that was based on "habits and practice" and not independent recollection. He further argues that it was "more likely that Appellant would remember the circumstances surrounding his plea than would his counsel."
As previously stated, we afford almost total deference to the trial court's factual findings when supported by the record, especially when those findings are based upon credibility and demeanor. Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Thompson, 153 S.W.3d at 417-18. Here, in its order denying appellant's application, the trial court made the following findings:
5. Prior to his plea, [appellant] was admonished orally that the plea of guilty could affect his immigration and/or residency status in the United States.
6. At the time of his plea, [appellant] was admonished in writing that the plea of guilty could affect his immigration status, residency status and/or lead to the deportation of [appellant] from the United States.
7. At the time of the plea, and on the record, [appellant]'s attorney admonished [appellant] (through brief questioning) that the plea of guilty could affect his immigration and/or residency status in the United States.
8. At the time of the plea, [appellant] was aware that his plea of guilty could affect his immigration and/or residency status in the United States, and the plea could further result in his deportation from the United States at some pont in time.
9. [Appellant]'s plea was made in full knowledge of the potential consequences of his plea of guilty.
We conclude that the record supports these findings that are based in part on the witnesses' credibility. See Ex parte Garcia, 353 S.W.3d at 788. The State's exhibit included the statutory admonishments that appellant and his trial attorney signed and, although appellant's testimony conflicted, the trial attorney testified that he would have gone over the paragraph in the admonishments concerning immigration consequences "for sure." The State's exhibit also included the transcript from the 2009 plea hearing that contained the exchange between appellant and his trial attorney in which appellant acknowledged his understanding that a plea of guilty "could affect [his] immigration status in this country" and could lead to his deportation. Crediting this evidence, the trial court could have resolved the conflicting evidence to conclude that appellant's testimony was not credible that his attorneys told him "not to worry" about the immigration consequences of a guilty plea to a controlled substance offense.
Appellant testified that he did not remember going over the written admonishments with his attorney when he entered his plea.
Because the record supports the above-stated findings, we defer to the trial court's findings. See Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Thompson, 153 S.W.3d at 417-18. Further, we defer to its conclusions based on these findings that appellant's plea "was made freely, voluntarily, intelligently, and knowingly" and that he has failed to prove by a preponderance of the evidence "that performance of [the trial attorney at the 2009 plea hearing] was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment." See Hill, 474 U.S. at 59; Ex parte Harrington, 310 S.W.3d at 458. Thus, we overrule appellant's issue and conclude that the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus. See Kniatt, 206 S.W.3d at 664.
Conclusion
For these reasons, we affirm the trial court's order denying appellant's application for writ of habeas corpus.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: August 24, 2017 Do Not Publish