COLORADO COURT OF APPEALS
2016COA169
Court of Appeals No. 15CA1507
Weld County District Court No. 96CR819
Honorable Carol Glowinsky, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Israel Chavez-Torres,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DUNN
Taubman and Casebolt*, JJ., concur
Announced November 17, 2016
Cynthia H. Coffman, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood,
Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 In People v. Martinez-Huerta, 2015 COA 69, ¶ 18, a division of
this court concluded that a defendant’s allegation that he pleaded
guilty based upon his counsel’s “affirmative and erroneous” advice
regarding the immigration consequences of such a plea warranted a
hearing to determine whether the defendant could establish
justifiable excuse or excusable neglect for his late postconviction
motion.
¶2 Relying on that case, the district court here summarily denied
the untimely Crim. P. 35(c) motion of defendant, Israel
Chavez-Torres, concluding as a matter of law that Martinez-Huerta
foreclosed a hearing to determine whether Chavez-Torres’
allegations, if true, would establish justifiable excuse or excusable
neglect.
¶3 Because we do not read Martinez-Huerta the same way, and
because we further conclude that Chavez-Torres alleged facts that,
if true, would establish justifiable excuse or excusable neglect, we
reverse and remand the case for further proceedings.
I. Background
¶4 Chavez-Torres is a citizen of Mexico who came to the United
States with his family when he was a child. While in high school,
1
Chavez-Torres pleaded guilty to first degree criminal trespass. The
trial court sentenced him to probation, which he successfully
completed.
¶5 Seventeen years after his criminal trespass conviction, the
United States Department of Homeland Security initiated removal
proceedings, alleging that Chavez-Torres was not legally present in
the United States and had been convicted of a crime involving moral
turpitude.
¶6 Chavez-Torres consulted with an immigration attorney who
advised him that because of his conviction, he was not eligible for
cancellation of removal from the United States. The immigration
attorney also advised him that his plea counsel may have been
ineffective in not advising him of the immigration consequences of
his guilty plea.
¶7 Chavez-Torres moved for postconviction relief from his
criminal trespass conviction under Crim. P. 35(c). He alleged that,
despite the fact that he had informed plea counsel that he was not a
citizen of the United States, counsel had advised him to accept the
plea agreement without telling him that the guilty plea carried a
risk of adverse immigration consequences. He claimed that, had
2
plea counsel properly advised him of this risk, he would have
rejected the plea offer and insisted on going to trial. As a result, he
asserted that his plea and conviction were constitutionally infirm.
¶8 Chavez-Torres acknowledged that his postconviction motion
was untimely. But he alleged that the untimeliness resulted from
circumstances amounting to justifiable excuse or excusable neglect
because he had no reason to question the constitutional validity of
his criminal trespass conviction until the initiation of the removal
proceedings. It was only then, he alleged, that he learned his
trespass conviction prevented him from remaining in the United
States and that his plea counsel may have rendered ineffective
assistance.
¶9 The district court summarily denied Chavez-Torres’ motion. It
found that (1) the motion was filed beyond the three-year deadline
for postconviction challenges; (2) given the passage of time, “the
prejudice to the state’s case would be great”; and (3) Chavez-Torres
had failed to assert facts “amounting to justifiable excuse or
excusable neglect.”
3
II. Justifiable Excuse or Excusable Neglect
¶ 10 Chavez-Torres contends that the district court erred in
summarily denying his postconviction motion based on the
statutory time bar because (1) he asserted facts that, if true, would
establish justifiable excuse or excusable neglect; and (2) the finding
that the State would suffer “great” prejudice has no record support.
We agree as to both.
A. Governing Standards
¶ 11 A defendant has three years to file a Crim. P. 35(c) motion
challenging a non-class-one felony conviction. § 16-5-402(1),
C.R.S. 2016. But the deadline may be extended if “the failure to
seek relief within the applicable time period was the result of
circumstances amounting to justifiable excuse or excusable
neglect.” § 16-5-402(2)(d).
¶ 12 To merit a hearing on the exception to the three-year deadline,
a defendant must allege facts that, if true, would establish
justifiable excuse or excusable neglect. Close v. People, 180 P.3d
1015, 1019 (Colo. 2008); People v. Wiedemer,
852 P.2d 424, 440
n.15 (Colo. 1993). The defendant need not set forth the evidentiary
support for his allegations. Close,
180 P.3d at 1019.
4
¶ 13 In determining whether justifiable excuse or excusable neglect
exists, the district court must consider “the particular facts of [the]
case, so as to give effect to the overriding concern that defendants
have a meaningful opportunity to challenge their convictions as
required by due process.” Id. To facilitate such a case-specific
review, our supreme court has identified a list of non-exhaustive
factors that a district court must consider in addressing justifiable
excuse or excusable neglect. Wiedemer,
852 P.2d at 442. In
particular, the court must take into consideration whether
1. circumstances or outside influences existed that prevented a
challenge to the prior conviction;
2. a defendant having reason to question the constitutionality of
a conviction investigated its validity and took advantage of
relevant avenues of relief that were available;
3. a defendant had any previous need to challenge a conviction
and either knew that it was constitutionally infirm or had
reason to question its validity;
4. a defendant had other means of preventing the government’s
use of the conviction, so that a postconviction challenge was
previously unnecessary; and
5
5. the passage of time affects the State’s ability to defend against
the challenge.
Id. at 441-42.
¶ 14 Whether a defendant can ultimately establish justifiable
excuse or excusable neglect is a question of fact for the district
court.
Id. at 443. But whether the defendant alleged facts that, if
true, would constitute justifiable excuse or excusable neglect, and
therefore merit a hearing on the issue, is a question that we review
de novo. Martinez-Huerta, ¶ 8; see Close,
180 P.3d at 1019, 1022.
B. The Postconviction Allegations
¶ 15 Chavez-Torres’ postconviction motion alleged that (1) he “told
[his counsel] that he was not a citizen of the United States”; (2) “[o]n
the advice of his attorney,” he accepted the plea offer; (3) his
attorney “did not advise him that the plea would prevent him from
becoming a lawful permanent resident” or “prevent him from
applying for cancel[l]ation of removal”; (4) he was “unaware” that
the plea would “prevent him from remaining in the United States”;
(5) he successfully completed his probation in 1998; and (6) he did
not learn that his conviction had adverse immigration consequences
until the removal proceedings were initiated. In support of his
6
postconviction motion, Chavez-Torres attached his plea agreement,
which — unlike some such agreements — contained no notice of
possible immigration consequences. And he attached his plea
transcript, which again did not refer to possible immigration
consequences.1
¶ 16 The prosecution did not respond to the postconviction motion.
¶ 17 Despite the uncontested allegations, the district court
summarily denied the postconviction motion. Specifically, relying
on Martinez-Huerta, the district court concluded, as a matter of law,
that an attorney’s failure to advise a client of adverse immigration
consequences “does not establish justifiable excuse or excusable
neglect.” And it concluded that the prejudice to the State’s case
“would be great.”
C. Martinez-Huerta
¶ 18 Martinez-Huerta did not address the issue presented here.
That is, it did not consider whether allegations that an attorney
1 The record also contains the district court’s disposition hearing
checklist. Although the form has check marks next to several boxes
related to Chavez-Torres’ plea, the box identified as “POZO
advisement” is not checked. See People v. Pozo, 746 P.2d 523, 529
(Colo. 1987) (recognizing that counsel has a duty to investigate the
immigration consequences for a known non-citizen client).
7
affirmatively advised her non-citizen client to accept a plea, without
also advising the client of related possible immigration
consequences, are sufficient to warrant a hearing on justifiable
excuse or excusable neglect. Rather, Martinez-Huerta concluded
that the defendant’s allegation there — that his counsel gave him
“affirmative and erroneous” advice — was sufficient to warrant a
hearing to determine whether the defendant could establish
justifiable excuse or excusable neglect. Id. at ¶ 18. We thus do not
agree with the district court that Martinez-Huerta stands for the
general proposition that an attorney’s mere failure to advise a client
of adverse immigration consequences, under the circumstances
alleged here, is insufficient, as a matter of law, to establish
justifiable excuse or excusable neglect.
¶ 19 To be sure, and as the People stress, Martinez-Huerta observed
that “[g]enerally, the absence of, or failure to give, advice does not
establish justifiable excuse or excusable neglect.” Id. at ¶ 17. But
the cases Martinez-Huerta relied on for this unremarkable
proposition — People v. Alexander, 129 P.3d 1051 (Colo. App.
2005), and People v. Slusher,
43 P.3d 647 (Colo. App. 2001) — are
not immigration consequence cases. And neither involved
8
situations — like this one — where an attorney has a legal duty to
advise a known, non-citizen client of possible immigration
consequences related to a guilty plea. See People v. Pozo, 746 P.2d
523, 526 (Colo. 1987) (holding that attorneys have an affirmative
duty to research relevant immigration law for their non-citizen
clients, and when the law is clear, to advise their clients regarding
the immigration consequences of a guilty plea); accord People v.
Kazadi,
284 P.3d 70, 73 (Colo. App. 2011), aff’d,
2012 CO 73; see
also Padilla v. Kentucky,
559 U.S. 356, 367 (2010) (recognizing that
prevailing norms support “the view that counsel must advise her
client regarding the risk of deportation”).
¶ 20 In fact, Alexander held that appellate counsel has no duty to
advise a defendant of the time limitations for seeking postconviction
relief.
129 P.3d at 1056. As a result, it concluded that the absence
of such advice was not a justifiable excuse and did not excuse the
defendant’s neglect.
Id. And Slusher concluded that, under the
circumstances there, an attorney’s failure to advise a defendant of
his rights under the Uniform Mandatory Disposition of Detainers
Act (UMDDA) did not constitute justifiable excuse because the
defendant did not explain why he failed to include his UMDDA
9
claim in a prior postconviction proceeding in which he was
represented by counsel. 43 P.3d at 651. We thus do not agree that
Alexander or Slusher created a per se rule that an allegation that an
attorney failed to give advice — which the attorney has an
affirmative legal duty to give — is insufficient to warrant a hearing
to determine whether a defendant can demonstrate justifiable
excuse or excusable neglect.
¶ 21 The People next argue that Chavez-Torres’ “ignorance of the
law” should not excuse his failure to file a timely postconviction
motion. In so arguing, the People rely on People v. White,
981 P.2d
624, 626 (Colo. App. 1998), and People v. Vigil,
955 P.2d 589, 591-
92 (Colo. App. 1997). But White and Vigil are unhelpful for the
same reason that Alexander and Slusher are not helpful. These
cases do not involve counsel’s affirmative legal duty to advise a
client regarding the risk of immigration consequences. Instead,
they recognize the principle that a defendant’s ignorance regarding
the postconviction time bar cannot constitute justifiable excuse or
excusable neglect. White,
981 P.2d at 626; see Vigil,
955 P.2d at
591-92.
10
¶ 22 But Chavez-Torrez has not alleged he should be excused
simply because he was unaware of a statutory deadline. He alleged
that his plea counsel advised him to plead guilty to criminal
trespass, knowing he was not a citizen and without satisfying her
legal duty to advise him of the related immigration consequences.
And until he became aware of plea counsel’s alleged failure to fulfill
her legal duty, he asserts that he had no reason to question the
constitutionality of his conviction. Chavez-Torres thus alleged facts
directly implicating two Wiedemer factors. See Wiedemer, 852 P.2d
at 441 (whether and when the defendant had reason to question the
constitutionality of his conviction). Such particular facts are the
type our supreme court cautioned “must” be considered “so as to
give effect to the overriding concern that defendants have a
meaningful opportunity to challenge their convictions as required
by due process.” Close,
180 P.3d at 1019.
¶ 23 Under these circumstances and in light of Chavez-Torres’
Crim. P. 35(c) allegations, we do not agree that Martinez-Huerta
forecloses a hearing to determine whether Chavez-Torres can
establish justifiable excuse or excusable neglect for his otherwise
untimely postconviction motion.
11
D. The Remaining Factors
¶ 24 As a second basis for summarily denying Chavez-Torres’
postconviction motion, the district court found that “the prejudice
to the state’s case would be great” due to the passage of time. The
record, however, does not support this factual finding.
¶ 25 Whether relevant files and witnesses exist is a factual
inquiry that must be determined on a case-by-case basis. See
Wiedemer, 852 P.2d at 441; Martinez-Huerta, ¶ 13. The answer will
not always be the same.
¶ 26 Although it appears that Chavez-Torres’ postconviction motion
was sent to the district attorney’s office, the prosecution did not
object or respond. Nor did the district court seek or require a
response. And — as Chavez-Torres points out — the record here
includes the plea agreement and the transcripts of the providency
hearing and sentencing proceedings. He also alleged that plea
counsel is still a practicing Colorado attorney. Absent a response
from the prosecution, we cannot say whether this record is
sufficient for the prosecution to defend the postconviction motion.
At any rate, the existing record does not support the district court’s
finding that the State will suffer “great” prejudice.
12
¶ 27 Finally, other than the passage of time, it is unclear whether
the district court considered and weighed the remaining Wiedemer
factors. See Wiedemer, 852 P.2d at 442 n.20 (“[T]he best approach
for determining whether a defendant satisfies the justifiable excuse
or excusable neglect standard under § 16-5-402(2)(d) is a weighing
of the various interests at stake.”). Specifically, Chavez-Torres
alleged that having followed his counsel’s advice to accept the plea
offer, without discussion of the immigration consequences, he had
no reason to question the constitutional validity of his guilty plea
until he consulted with an immigration attorney about his removal
proceedings. Chavez-Torres thus alleged facts that implicate the
second and third Wiedemer factors (whether and when he had
reason to question the constitutionality of his conviction). But the
record is silent with respect to whether the district court considered
and weighed these factors. Cf. People v. Cordova,
199 P.3d 1, 5
(Colo. App. 2007) (concluding “the trial court appropriately
considered all the Wiedemer factors to determine justifiable excuse
or excusable neglect, and that the court’s findings are supported by
the record”). For this reason too, a remand is needed.
13
¶ 28 Given all this, and under these circumstances, we are
“reluctant to conclude, as a matter of law, that justifiable excuse or
excusable neglect did not exist.” People v. Clouse, 74 P.3d 336, 341
(Colo. App. 2002); accord Martinez-Huerta, ¶ 24. And we are
persuaded that Chavez-Torres has “pleaded facts that warrant a
hearing on justifiable excuse or excusable neglect.”
Martinez-Huerta, ¶ 7.
III. Ineffective Assistance of Counsel
¶ 29 Even accepting that the allegations could warrant a hearing on
justifiable excuse or excusable neglect, the People urge us to affirm
the district court’s denial of Chavez-Torres’ postconviction motion
on the alternative basis that he has failed to prove the prejudice
prong of his ineffective assistance of counsel claim. Although we
may affirm a district court’s order on any basis supported by the
record, we are not persuaded to do so here.
¶ 30 The denial of a claim of ineffective assistance of counsel
without a hearing is justified if, but only if, the existing record
establishes that the defendant’s allegations, even if proven true,
would fail to establish either constitutionally deficient performance
or prejudice. Strickland v. Washington, 466 U.S. 668, 690 (1984);
14
Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). To demonstrate
prejudice in the context of a guilty plea, a defendant must show a
reasonable probability that, but for counsel’s deficient performance,
he would have rejected the plea offer and insisted on going to trial.
See Hill v. Lockhart,
474 U.S. 52, 59 (1985); People v. Morones-
Quinonez,
2015 COA 161, ¶ 7. In an immigration consequences
case, such a showing requires an allegation that rejecting the plea
“would have been rational under the circumstances.” Padilla,
559
U.S. at 372.
¶ 31 Chavez-Torres alleged in his postconviction motion that
rejecting the plea offer would have been rational under the
circumstances because his entire immediate family lived in the
United States and he had no family in, or connections to, Mexico.
These unrebutted allegations sufficiently assert Strickland
prejudice. See id.; Morones-Quinonez, ¶ 12 (“[I]n the context of a
decision to forgo a guilty plea based on immigration considerations,
the defendant need only make some showing that the decision
would have been rational.”); see also Kazadi,
284 P.3d at 75 (The
defendant’s “alleged personal circumstances and lack of ties to the
Congo support[ed] his assertion that he would not have pleaded
15
guilty had he received the advice that he was constitutionally
entitled to receive.”).
¶ 32 Because Chavez-Torres has alleged facts that support his
contention that it would have been “rational under the
circumstances” to reject the plea offer had he been properly advised
of the immigration consequences, we cannot, on this record,
conclude otherwise as a matter of law.
IV. Conclusion
¶ 33 The order denying the postconviction motion is reversed, and
the case is remanded to the district court. On remand, the court
shall hold a hearing to determine whether Chavez-Torres has
established justifiable excuse or excusable neglect for his untimely
postconviction motion. If he can, the court must then consider the
merits of his postconviction motion.
JUDGE TAUBMAN and JUDGE CASEBOLT concur.
16
