Opinion
No. 2 CA-CR 2018-0151-PR
08-23-2018
THE STATE OF ARIZONA, Petitioner, v. EDUARD JAN BERT WILLEKENS, Respondent.
COUNSEL William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney, Phoenix Counsel for Petitioner The Nolan Law Firm PLLC, Mesa By Todd E. Nolan and Cari McConeghy Nolan Counsel for Respondent
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2010006563001DT
The Honorable Connie Contes, Judge
REVIEW GRANTED; RELIEF GRANTED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Andrea L. Kever, Deputy County Attorney, Phoenix
Counsel for Petitioner The Nolan Law Firm PLLC, Mesa
By Todd E. Nolan and Cari McConeghy Nolan
Counsel for Respondent
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 The state seeks review of the trial court's order granting Eduard Willekens's petition for post-conviction relief, in which he argued that his decision to reject a plea offer resulted from trial counsel's failure to explain the immigration consequences of pleading guilty. We grant review and relief. The record does not support a finding that trial counsel fell below prevailing professional standards, and the court failed to make the required finding that Willekens would have accepted the offer had he been informed that he would be deported rather than being required to serve a term of lifetime probation in Arizona.
¶2 After a jury trial, Willekens was convicted of seven counts of sexual exploitation of a minor and three counts of surreptitious video recording. The trial court sentenced him to an aggregate prison term of 120.5 years. This court affirmed his convictions and sentences on appeal. State v. Willekens, No. 1 CA-CR 11-0804 (Ariz. App. Dec. 27, 2012) (mem. decision).
¶3 Willekens sought post-conviction relief, arguing inter alia that his trial counsel had been ineffective in failing to advise him of immigration consequences related to a plea offer by the state. Specifically, he claimed that counsel failed to inform him that he would not serve the term of lifetime probation he would have received under the plea in the United States but instead, as a Belgian citizen, he would be deported when released from prison.
Willekens initially filed a pro se petition in which he raised numerous additional claims. Through retained counsel, Willekens filed a supplemental petition more fully arguing the claim related to immigration consequences and raising an additional claim that his aggregate sentence violated the Eighth Amendment. The trial court did not address Willekens's initial claims or his Eighth Amendment claim in its ruling granting relief.
¶4 The trial court conducted an evidentiary hearing at which Willekens and his trial counsel testified. The state had offered Willekens a plea agreement, pursuant to which he would have pled guilty to three counts of attempted sexual exploitation of a minor and would have received a prison term between five and fifteen years for one count, to be followed by terms of lifetime probation for the remaining counts. Willekens testified the immigration consequences of the plea were not explained to him, he believed, had he accepted the plea, he would not have been permitted to return to Belgium upon his release from prison, and he would have accepted the plea had he understood he instead would have been deported. Trial counsel testified that Willekens was aware "he could possibly be deported," and counsel had recommended he "consult with an immigration attorney" because she was not "prepared to talk to him about any specifics about the repercussions or consequences of what would happen if he pled guilty." She further testified, however, that Willekens was "absolutely adamant that he was innocent" and "was not interested in any plea" except a probation-only plea.
¶5 After the evidentiary hearing, the trial court granted relief. It concluded: (1) "trial counsel did not inform [Willekens], or make arrangements for him to receive meaningful legal advice, of his immigration consequences by accepting the plea offer"; (2) "he rejected the plea offer without knowledge or understanding of his immigration consequences, believing mistakenly that he would be placed on lifetime probation for two convictions following his prison term, rather than face deportation"; and (3) "as a direct result of his uninformed rejection of the plea offer, he sustained a substantially longer and harsher sentence than would have been imposed had he accepted the plea offer." The court thus vacated Willekens's convictions and sentences and directed the state to reoffer the plea Willekens had rejected. The state's petition for review followed.
¶6 On review, the state argues that the trial court erred by granting relief and that the court lacked authority to order it to reoffer the plea. Because we agree the court erred in granting Willekens's petition, we need not address the state's second argument.
¶7 To prevail on a claim of ineffective assistance of counsel, a defendant is required to show both that counsel's conduct fell below prevailing professional standards and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). An attorney's representation may be found constitutionally deficient if he fails to provide "information necessary to allow [a defendant] to make an informed decision whether to accept the plea." State v. Donald, 198 Ariz. 406, ¶ 16 (App. 2000). And, the United States Supreme Court has determined that defense counsel is obligated to "advise her client regarding the risk of deportation" and, when the governing law is "succinct and straightforward," to provide "correct advice" about the immigration consequences the defendant faces by pleading guilty. Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010). However, when "the deportation consequences of a particular plea are unclear or uncertain," counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369. To establish prejudice in this context, a defendant must show a reasonable probability that, absent his attorney's deficient conduct, he would have accepted the plea offer. Donald, 198 Ariz. 406, ¶ 20.
¶8 To obtain post-conviction relief, a defendant is required to prove the necessary facts by a preponderance of the evidence. Ariz. R. Crim. P. 32.8(c). And, when ruling after an evidentiary hearing, a trial court is required to "make specific findings of fact and expressly state its conclusions of law relating to each issue presented." Ariz. R. Crim. P. 32.8(d)(1). The trial court did not find that the law concerning the potential immigration consequences of a guilty plea to attempted sexual exploitation of a minor was "succinct and straightforward," Padilla, 559 U.S. at 369, and, indeed, no evidence or argument on that point was presented. Thus, the court erred in concluding that counsel fell below prevailing professional norms by failing to advise Willekens of the immigration consequences of the guilty plea. Nor was there any evidence that defense counsel fell below prevailing professional norms by failing to "make arrangements" for Willekens to receive immigration advice, particularly given that Willekens was out of custody before and during trial. Unless the pertinent information is readily available and understandable, the Supreme Court's holding in Padilla does not require counsel to do anything but advise the defendant to seek legal advice about the immigration consequences of pleading guilty. See id. at 369. It is undisputed that counsel told Willekens to consult with an immigration attorney, and Willekens has not explained his failure to do so. In the absence of supporting evidence, we are compelled to conclude the court erred in finding counsel had fallen below prevailing professional norms.
During the evidentiary hearing, Willekens's current counsel informed the trial court that, had Willekens pled guilty, he would have been subject to deportation after he had completed part or all of his prison term and that the term of lifetime probation would have been "suspended" when he was deported. She did not, however, provide any evidence suggesting that such information was commonly known in the local defense community or that the governing law was straightforward and clear. See Padilla, 559 U.S. at 366-69.
We do not suggest that a trial court cannot rely on its own knowledge and experience in evaluating whether counsel has fallen below prevailing professional standards. Nothing in the record suggests, however, that the court did so here. Notably, the court asked Willekens's current counsel about her research concerning the immigration consequences of the plea and the interplay between deportation and lifetime probation.
¶9 Moreover, even if we agreed counsel fell below prevailing professional norms, the trial court applied the incorrect legal standard in evaluating prejudice. The court concluded only that Willekens faced a harsher sentence after conviction by a jury. But, as we noted above, to show prejudice, Willekens was required to demonstrate—and thus the court was required to find—that he would have accepted the state's plea offer. See Ariz. R. Crim. P. 32.8(d)(1); Donald, 198 Ariz. 406, ¶ 21. Absent that finding, Willekens's claim of ineffective assistance must fail.
It appears the trial court may have misconstrued this court's decision in Donald, in which we commented that a defendant could "inferentially show prejudice by establishing a serious negative consequence, such as receipt of a substantially longer or harsher sentence than would have been imposed as a result of a plea." 198 Ariz. 406, ¶ 21. But that comment was made during a discussion of the required showing to obtain an evidentiary hearing. To obtain relief, a defendant must show he was likely to have accepted the plea but for counsel's conduct. Id. ¶ 20; see also Lafler v. Cooper, 566 U.S. 156, 171 (2012). The mere fact Willekens received a harsher sentence by forgoing the plea does not establish prejudice.
¶10 We grant review and relief. The trial court's order granting Willekens's petition for post-conviction relief is vacated.