Opinion
No. 107,069.
2013-05-24
Jose Luis Vallejos HERNANDEZ, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Barton District Court; Ron Svaty, Judge. Christopher S. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. Douglas A, Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Barton District Court; Ron Svaty, Judge.
Christopher S. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant. Douglas A, Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
ATCHESON, J.
Jose Luis Vallejos Hernandez, Jr., appeals the denial of his motion under K.S.A. 60–1507 alleging the lawyer representing him on drug charges in Barton County District Court was constitutionally ineffective in failing to inform him of the immigration implications of his plea to a reduced felony. The district court held an evidentiary hearing on the 60–1507 motion. Based particularly on the district court's factual determinations, we find no error in its decision to deny the motion and, therefore, affirm.
In 2009, the State charged Hernandez in Barton County District Court with two counts of distributing cocaine within 1,000 feet of a school, a drug severity level 2 felony, and with several less serious offenses. Hernandez hired Michael S. Holland, II, who represented him throughout the criminal case. Holland worked out a deal with the county attorney calling for Hernandez to plead to a single charge of distributing cocaine, a drug severity level 3 felony. In mid–2010, Hernandez entered a no contest plea to the reduced charge and in due course received a sentence of 22 months in prison.
Hernandez filed his 60–1507 motion several months later and claimed Holland failed to provide him constitutionally adequate representation under the Sixth and Fourteenth Amendments to the United States Constitution, first by not informing him of the consequences of the plea on his status as a resident alien and then by not filing a motion to withdraw the plea. The district court held an evidentiary hearing on the 60–1507 motion at which both Holland and Hernandez testified.
Hernandez was about 33 years old at the time of the hearing and had lived continuously in the United States for about 25 years. He spoke fluent English, attended school in Great Bend, and worked in the Barton County area. Holland had previously represented Hernandez in several matters including a 2005 felony drug case in which Hernandez received probation. During the course of their attorney-client relationship, Hernandez never told Holland he was a resident alien. Holland assumed Hernandez was a citizen.
Holland learned Hernandez was a resident alien, subject to deportation, when the federal Immigration and Customs Enforcement (ICE) agency placed a hold on Hernandez between his plea and sentencing in the cocaine case. Holland then met with Hernandez and told him that he could file a motion to withdraw the plea to the reduced charge and in all likelihood the motion would be granted. Holland explained that Hernandez would then face the prospect of going to trial on all of the original charges, including the more serious felonies, or otherwise dealing with them. Holland also outlined the potential penalties for conviction on those charges. Holland suggested to Hernandez and his family that they consult with an immigration lawyer. But he told his client that a felony drug conviction probably would have significant immigration consequences. At the 60–1507 hearing, Hernandez' father testified that he had talked with an immigration lawyer who confirmed that a conviction for any felony drug charge almost certainly would lead to deportation.
At the hearing, Holland testified that Hernandez told him not to file a motion to withdraw the plea. According to Holland, Hernandez said he did not want to face a longer sentence and would essentially deal with the deportation issue when it arose. At the hearing, Hernandez agreed he decided against filing a motion to withdraw the plea. Hernandez testified that he no longer considered Holland to be his lawyer after they discussed withdrawing the plea, and he characterized himself as confused during that meeting. The record, however, shows Hernandez did not discharge Holland and then appeared with him at sentencing.
At the end of the 60–1507 hearing, the district court requested proposed findings of fact and conclusions of law from the State and Hernandez. The district court entered a brief order denying Hernandez' motion and adopting the State's findings and conclusions. Hernandez has timely appealed.
When reviewing the denial of a 60–1507 motion after a full evidentiary hearing, an appellate court accepts the district court's findings of fact to the extent that they are supported with substantial competent evidence. The appellate court exercises unlimited review of the determinative legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10(2007).
To demonstrate constitutionally ineffective assistance of counsel, Hernandez must show that Holland's performance fell below an objective standard of reasonableness and that he suffered material legal prejudice as a result, meaning there probably would have been a different outcome. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan. 475, 511–12, 146 P.3d 187 (2006) (citing Chamberlain ). As both the United States Supreme Court and the Kansas Supreme Court have noted, review of the representation should be deferential and hindsight criticism tempered lest the evaluation of a lawyer's performance be unduly colored by lack of success notwithstanding demonstrable competence. Strickland, 466 U.S. at 689–90;Holmes v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91.
Hernandez argues Holland was ineffective because he failed to outline the immigration consequences of the proposed plea deal before the plea hearing. To make that argument, Hernandez relies on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). In Padilla, the United States Supreme Court recognized that basic competence on the part of criminal defense counsel includes advice to an immigrant client about whether conviction on the charges may or likely will lead to deportation if the effect can be readily determined. When the legal effect is less clear, the lawyer is not expected to perform to the standards of an expert in immigration law and need only inform the client that an uncertain risk exists. 130 S.Ct. at 1483.
Whether Holland breached some duty to Hernandez in failing to discuss immigration issues with him during their initial consideration of the plea offer from the State presents a slippery issue. The factual record developed at the 60–1507 motion indicates Holland had no reason to presume Hernandez was a resident alien rather than a citizen. Hernandez did not volunteer that information, although he testified he assumed Holland would have asked if it were important. Hernandez looked to be fully assimilated, having lived in this country since he was a first grader. Nothing signaled that Hernandez might be an immigrant. And, perhaps most significantly, Holland had earlier represented Hernandez in a criminal proceeding that should have triggered immigration consequences for an alien but for some unknown bureaucratic reason did not.
Hernandez, of course, has Hispanic given and surnames. But we are not prepared to say that a criminal defense lawyer has an obligation to ask a client about his or her immigration status or citizenship simply because the person has a recognizably ethnic name or a Hispanic name. Nor are we prepared to say a lawyer must ask every client about his or her immigration status or citizenship. By implication, the ruling in Padilla at least suggests a prudent lawyer might well raise the issue with any client facing criminal charges. At least some written plea agreements contain standard clauses addressing potential immigration consequences attendant to criminal convictions. See, e.g., State v. Lowe, No. 103,678, 2012 WL 139264, at *4 (Kan.App.2012) (unpublished opinion); United States v. Calvillo, No. 3:07–cr–00094–RCJ, 2012 WL 3231026, at *2 (D.Nev.2012) (unpublished opinion). Determining whether a given client is a citizen may not necessarily be an easy call. See Padilla, 130 S.Ct. 1489–90 & n. 1 (Alito, J., concurring).
For purposes of this case, we assume without deciding that Holland had a duty under the Sixth Amendment to ask about Hernandez' immigration status and to discuss the immigration implications of the proposed plea agreement before the plea hearing. And we further assume without deciding that Holland's failure to discuss those issues with Hernandez before entering the plea fell below the standard of care required in Strickland and Chamberlain.
But Hernandez fails to demonstrate prejudice. The district court's factual findings show that after the plea hearing—once Holland learned of the ICE hold and his client's status as a resident alien—Holland discussed the implications of asking to set aside the plea. That discussion included advice at the very least meeting, and likely exceeding, the requirements of Padilla regarding immigration consequences and deportation in particular. Holland told Hernandez that he was looking at deportation as a very real possibility under the plea agreement. Holland also explained to Hernandez that withdrawing the plea would effectively reinstate all of the original charges, meaning he would face trial and possible conviction on the more serious offenses and a longer prison sentence likely followed by deportation. Given those unpalatable options, Hernandez made a reasoned choice to leave the plea deal in place, take his shorter sentence, and to deal with the immigration issues as they might later come up.
In the 60–1507 proceedings, Hernandez does not challenge the adequacy of Holland's advice regarding the effect of withdrawing the plea and then having to confront the original charges. That is, Hernandez does not assert that he would have gone to trial on the original charges or that he had some defense to them that even arguably might have led to acquittals. Absent that sort of showing, Hernandez has similarly failed to show material prejudice. See Padilla, 130 S.Ct. at 1485 (“[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”).
We discount, as the district court did, Hernandez' assertion that he no longer considered Holland his lawyer. Hernandez hired Holland and could have replaced him but chose not to. And Hernandez appeared with Holland as his counsel at sentencing.
At best, Hernandez has shown that Holland may have informed him later than he should have about the immigration consequences of the plea agreement. But when Holland accurately informed Hernandez about those consequences, Hernandez made an informed (and reasonable) decision to stick with the plea agreement rather than pursuing the legal avenue Holland outlined for withdrawing the plea and setting aside the agreement. Given that sequence of events and the actual decision-making process, Hernandez has failed to show any sort of prejudice necessary for a successful 60–1507 challenge. The district court, therefore, properly denied him relief.
Affirmed.