Opinion
Case No. 5D20-1824
05-21-2021
Abner Solis RAMIREZ, Appellant, v. STATE of Florida, Appellee.
Charles E. Jarrell, of Charles E. Jarrell, P.A., Vero Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
Charles E. Jarrell, of Charles E. Jarrell, P.A., Vero Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
Abner Solis Ramirez ("Defendant") appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief after an evidentiary hearing. Defendant argued in his motion that his trial counsel had provided ineffective assistance by failing to inform him of the alleged adverse immigration consequences resulting from tendering a no contest plea to the charge of tampering with a witness or victim in a misdemeanor proceeding, a third-degree felony. We affirm the order under review, but not for the reasons provided by the postconviction court. See Guzman-Aviles v. State , 226 So. 3d 339, 343 (Fla. 5th DCA 2017) (affirming denial order entered on rule 3.850 motion for postconviction relief under the "Tipsy Coachman" rule because the court reached the right conclusion); Montero v. State , 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming the postconviction court's denial of a rule 3.850 motion for reasons other than those given by the court in its order of denial).
See § 914.22(1) –(2), Fla. Stat. (2018).
Defendant was arrested following a confrontation with the father of his wife's children from a previous relationship. The father had come to Defendant's home to pick up the children. Defendant refused to allow the father access to the children and then began strangling him. As the father tried to call 911, Defendant grabbed the phone from him and broke it on the ground. Defendant subsequently punched the father in the eye.
As a result, Defendant was charged by information with the aforementioned crime of tampering with a witness for preventing the father from calling 911. Defendant was also charged with misdemeanor battery for punching the father and misdemeanor criminal mischief for breaking the father's cell phone. Less than four months after being charged, Defendant entered into a negotiated plea agreement with the State to resolve the case. Defendant agreed to plead no contest to the charges in exchange for a withholding of an adjudication of guilt on all counts, a term of twenty-four months of probation on the tampering with a witness charge, payment of $150 in restitution, the taxation of certain costs, and no further penalties for the two misdemeanors.
Pertinent here, Defendant's written plea agreement provided, "I understand that if I am not a United States citizen, entry of this plea may subject me to deportation by the United States Immigration Service." At his change of plea hearing, Defendant testified that he had signed the plea agreement, could read and write English, had read through each page of the plea agreement carefully and understood all of its terms and conditions, and had enough time to discuss with his attorney all the facts and circumstances of his case. The trial court then asked Defendant:
Q.: Do you understand that if you are not a United States citizen that as a result of this plea you could be deported or denied citizenship?
Defendant answered "Yes." The trial court accepted Defendant's plea and imposed the negotiated sentence.
In his motion for postconviction relief based on ineffective assistance of counsel, Defendant alleged that as a result of his no contest plea to the felony tampering with a witness charge, because he is not a United States citizen, his immigration status will be terminated, and he is now subject to being deported. Defendant, who was lawfully in this country under "DACA status," averred that he will be unable to renew his DACA status and will also be ineligible for any relief from deportation. Lastly, Defendant stated that at no time did his counsel explain to him these negative consequences to his immigration status and that had he been so advised, he would have maintained his not guilty plea and "fought these charges."
Deferred Action for Childhood Arrivals.
Under the familiar requirements of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to be entitled to postconviction relief, Defendant must establish that his counsel's performance was deficient and that this deficient performance prejudiced him. Moreover, because Defendant tendered a plea, the second-prong or prejudice requirement of Strickland is satisfied only if he can demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hernandez v. State , 124 So. 3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). As to Defendant's singular claim that his counsel was ineffective for failing to advise of the negative immigration consequences and the risk of deportation, "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla v. Kentucky , 559 U.S. 356, 367, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Stated more directly, Strickland applies to claims brought under Padilla regarding counsel's alleged failure to advise of potential adverse immigration consequences. Id. at 366, 130 S.Ct. 1473.
As previously indicated, the postconviction court held an evidentiary hearing on Defendant's motion. Defendant testified first. He explained that, during his two meetings with counsel prior to the change of plea hearing, he did not recall discussing "anything about [my] immigration status." Defendant admitted that he never told his attorney that he was not a United States citizen, but that his counsel also never asked him about his citizenship. Defendant further testified that he understood the trial judge when the judge advised him that the plea may result in his being deported, but he nevertheless proceeded with the plea because he "wanted the case to be over" and "did not really think that his plea would cause him any issues." On cross-examination, Defendant acknowledged that at the time of the hearing, he had not been denied DACA status due to his plea to this felony.
The rule 3.850 hearing was held approximately fourteen months after Defendant tendered his plea.
Defendant's trial counsel was the only other witness at the hearing. Counsel testified that, as a common practice, he no longer asks his clients about their citizenship because of a "bad experience" he had with a client several years earlier when he did. Counsel explained that, based upon review of his notes, he doubted that he had discussed with Defendant the issue of Defendant's citizenship or immigration status because, had it been discussed and Defendant advised that he was not a United States citizen, his standard practice would have been to refer Defendant to an immigration attorney for further advice.
At the conclusion of the hearing, the court orally announced that it found no constitutionally ineffective assistance of counsel and that there was "not ... much credibility to [Defendant's] argument today or his testimony." In its written denial order, the trial court made no specific finding under Strickland as to whether counsel's performance was deficient or if Defendant was prejudiced. Instead, the court wrote that it "ha[d] not located any case law that states that an attorney has the affirmative duty to ask every client if he or she is a U.S. citizen, and that [it was] not convinced every attorney has that obligation." The court concluded its written order by finding that Defendant knew he was registered in the DACA program and that he should have so advised his counsel so that counsel could have referred Defendant to an immigration attorney.
We first address what we perceive to be the postconviction court's basis for denying Defendant's motion, namely, that counsel's performance was not deficient because he had no affirmative duty to inquire of Defendant whether he was a United States citizen. In doing so, we apply a mixed standard of review to a postconviction court's decision on an ineffective assistance of counsel's claim following an evidentiary hearing by giving deference to the lower court's factual findings, provided that they are supported by competent substantial evidence, while conducting an independent de novo review of its legal conclusions. See Keith v. State , 46 So. 3d 85, 87 (Fla. 5th DCA 2010) (citing Sochor v. State , 883 So. 2d 766, 771–72 (Fla. 2004) ).
To the extent that the postconviction court reached a legal conclusion that defense counsel has no duty to inquire of Defendant's immigration or citizenship status prior to tendering a plea, we disagree. In Lee v. United States , the United States Supreme Court emphasized that "[d]eportation is always ‘a particularly severe penalty,’ " and that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." ––– U.S. ––––, 137 S. Ct. 1958, 1968, 198 L.Ed.2d 476 (2017) (quoting Padilla , 559 U.S. at 365, 368, 130 S.Ct. 1473 ). Accordingly, a criminal defense attorney representing a client charged with a felony should make a reasonable inquiry as to the immigration or citizenship status of his or her client. Otherwise, counsel will not be in an adequate position to provide effective guidance or advice to the client regarding the potential immigration consequences of his or her guilty or no contest plea. See Padilla , 559 U.S. at 371, 130 S.Ct. 1473 ("It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’ " (quoting Hill , 474 U.S. at 62, 106 S.Ct. 366 (White, J., concurring in judgment))).
The dispositive question in this case, though, remains whether Defendant, regardless of his counsel's performance, established the second or prejudice prong under Strickland so as to be entitled to postconviction relief. The answer to this question turns on whether the equivocal immigration warning given to Defendant by the trial court at the change of plea hearing pursuant to Florida Rule of Criminal Procedure 3.172(c)(8) that Defendant "could" be deported or denied citizenship if he was not a United States citizen, when coupled with Defendant's acknowledgement of the potential adverse immigration consequences from his plea, was sufficient, under the circumstances of the case, to refute his claim of prejudice. For the following reasons, because any adverse immigration or deportation consequences to Defendant resulting from his plea were not truly clear at the time of the plea, he is not entitled to relief.
Rule 3.172(c)(8) requires that a trial court give an admonition to defendants in all cases that if the defendant is not a citizen of the United States, the court's acceptance of the defendant's plea of guilty or no contest, regardless of whether an adjudication of guilt is withheld, may have the additional consequences of changing the defendant's immigration status, including deportation or removal from the United States.
In Padilla , the United States Supreme Court held that defense counsel's performance in the case was constitutionally deficient for failing to advise his client that pleading guilty to drug-transportation charges made him subject to "automatic deportation." 559 U.S. at 360, 130 S.Ct. 1473. However, the Court clarified that there will
undoubtedly be numerous situations in which the deportation consequences of a 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 (as it is in many of the scenarios posited by Justice ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Id. at 369, 130 S.Ct. 1473 (footnote omitted).
Here, as indicated, there is no dispute that Defendant received equivocal warnings about the risk of adverse immigration consequences resulting from his no contest plea. First, the written plea agreement presented to him by his counsel specifically advised Defendant that he may be deported if he was not a United States citizen. Defendant testified that he carefully read and understood each page of the agreement. Second, Defendant affirmatively responded to the trial court that he understood that if he was not a United States citizen (which he knew he was not), his plea could result in deportation or denial of citizenship.
The plea agreement was two pages in length.
Under Padilla , when the deportation consequences to a defendant are "truly clear," counsel has the duty to provide to the defendant more than equivocal advice about these potential adverse consequences and, under the circumstances, an equivocal warning given thereafter by a trial court, does not conclusively bar or otherwise fully remediate an ineffective assistance of counsel claim. 559 U.S. at 369, 130 S.Ct. 1473. However, subsequently to Padilla , the Florida Supreme Court recognized that such a colloquy may refute a defendant's postconviction claim of ineffective assistance of counsel when the adverse immigration consequences of the plea are not "presumptively mandatory." Hernandez , 124 So. 3d at 763.
Thus, the issue before us is whether, under the applicable law at the time Defendant tendered his no contest plea to tampering with a victim or witness in a misdemeanor proceeding, the immigration or deportation consequences to Defendant were "truly clear" or "presumptively mandatory." Defendant asserted that they were because the crime to which he pled is a "crime involving moral turpitude" carrying "unequivocal" adverse immigration consequences to him.
Although Defendant did not cite to a specific statute, it appears that his argument that the crime of tampering with a witness is a crime involving "moral turpitude," thus having "truly clear" adverse immigration consequences, comes from 8 U.S.C. § 1227(a)(2)(A)(i). This statute provides
(i) Crimes of moral turpitude
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed,
is deportable.
The term "moral turpitude" is not defined in the statute. Nevertheless, it has been interpreted to mean an "act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." Cano v. U.S. Atty. Gen. , 709 F.3d 1052, 1053 (11th Cir. 2013).
Defendant has provided no definitive authority showing that the crime of tampering with a victim or witness in a misdemeanor proceeding is a crime involving moral turpitude, and it is by no means clear to this court that Defendant's conviction for witness tampering categorically constitutes a crime involving moral turpitude. Cf. Vasquez-Valle v. Sessions , 899 F.3d 834, 837 (9th Cir. 2018) (holding that alien's Oregon conviction for witness tampering was not categorically a crime involving moral turpitude); Escobar v. Lynch , 846 F.3d 1019, 1022 (9th Cir. 2017) (holding that witness tampering, in violation of California law, was not a categorical "crime involving moral turpitude"); Soto-Rodriguez v. Holder , 607 F. App'x 648, 651 (9th Cir. 2015) (holding that alien's conviction for witness tampering under Washington law was not categorically a "crime involving moral turpitude").
Defendant cited to a redacted version of what appears to be an unreported 2012 decision from the Administrative Appeals Office of the U.S. Citizenship and Immigration Services that such a conviction in Florida is a crime of moral turpitude.
The parties do not contest that under the circumstances of the case, the withholding of an adjudication of guilt that Defendant received on this charge would qualify as a "conviction." The applicable statute provides:
The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A).
Absent the crime of witness tampering in Florida being one involving moral turpitude, Defendant has not shown that his plea to this charge subjected him to virtually automatic deportation and that such presumptive mandatory adverse immigration consequences at the time of his plea were truly clear from the face of the immigration statute. Accordingly, because the record refutes Defendant's claim, we affirm the order denying his motion for postconviction relief. See Yanez v. State , 170 So. 3d 9, 11 (Fla. 2d DCA 2015) (holding that to state a claim for relief under Padilla , the defendant must establish, among other things, that the law as it existed at the time of the plea subjected the defendant to "virtually automatic" deportation and that "the ‘presumptively mandatory’ consequence of deportation is clear from the face of the immigration statute" (quoting Cano v. State , 112 So. 3d 646, 648 (Fla. 4th DCA 2013) )); see also Vaz v. State , 300 So. 3d 744, 745 (Fla. 3d DCA 2020) (quoting Yanez with approval).
AFFIRMED.
EVANDER, C.J., and WALLIS, J., concur.