Opinion
66891-9-I
08-13-2012
In re Personal Restraint Petition of SANTOS W. ORANTES.
UNPUBLISHED OPINION
Cox, J.
Santos Orantes seeks collateral review of his final judgment and sentence, entered on August 24, 2006. He argues that he was denied due process. He bases this claim on the assertion that the trial court failed to advise him of the adverse immigration consequences of his guilty plea. His request for relief is chiefly based on Padilla v. Kentucky, which the United States Supreme Court decided after his plea and sentence. Because he moved for collateral relief in January 2011, more than one year after his judgment and sentence became final, and no exception to this one year time bar applies, we dismiss his petition.
__U.S. __, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
Santos Orantes left El Salvador for the United States in 1989. He received temporary protected status (TPS) here in 2000. TPS establishes a temporary safe haven in the United States for foreign nationals where their country's conditions prevent them from returning safely. El Salvador is such a country.
Motion for Relief from Judgment at 2.
Id.
Orantes was convicted of a misdemeanor while living in North Carolina.Sometime thereafter, he and his wife moved to Washington.
Declaration of Santos Orantes at 2.
In 2006, the Snohomish County Prosecutor charged Orantes with the felony of attempted unlawful issuance of a bank check. On advice of counsel, he pleaded guilty to the charge. Before entering his guilty plea, Orantes's attorney did not advise him that pleading guilty would result in the loss of his immigration status. The sentencing court imposed a deferred sentence of 364 days of confinement with 12 months of probation and a $500.00 fine. The court entered its judgment and sentence on August 24, 2006. Orantes did not appeal. Thus, the judgment was final as of that date.
Id.; Declaration of Kathleen Kyle at 1.
Orantes first learned that his plea would jeopardize his immigration status when the government denied his application to renew his TPS. In December 2008, he moved to amend the August 2006 judgment and sentence. Orantes, on advice of counsel, believed that the immigration problem would be resolved by reducing the term of confinement in the sentence from 364 to 180 days. The court granted this motion and reduced the term of confinement of Orantes's sentence to 180 days.
Declaration of Orantes at 3.
Orantes later learned that his criminal history made him ineligible for TPS. Thus, the modification to the term of his original sentence appears to have made no difference to his immigration consequences. He is now in deportation proceedings.
Id.; 8 C.F.R. § 244.4 (2012) ("An alien is ineligible for Temporary Protected Status if the alien: (a) Has been convicted of any felony or two or more misdemeanors, as defined in § 244.1, committed in the United States, or (b) Is an alien described in section 208(b)(2)(A) of the Act.").
Declaration of Orantes at 3.
In January 2011, Orantes moved for relief from his August 2006 judgment and sentence, claiming the judgment and sentence were void. He did so based on CrR 7.8(b)(4), RCW 10.73.100(6), Padilla, and other authority.
The superior court decided that his motion was time barred by RCW 10.73.090, that he had not made a substantial showing that he was entitled to relief, and that resolution of his motion would require a factual hearing.Accordingly, the court transferred his motion to this court for consideration as a personal restraint petition.
Order Transferring Motion for Relief from Judgment.
CrR 7.8(c)(2).
STANDARD OF REVIEW
On collateral review, a petitioner raising a new issue must show that he or she was either actually or substantially prejudiced by constitutional error, or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice.
In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994); In re Pers. Restraint of Markel, 154 Wn.2d 262, 267, 111 P.3d 249 (2005).
Generally, a collateral attack on a final judgment and sentence in a criminal case must be filed within one year. The one year time limit does not apply where the petitioner satisfies one or more of the grounds specified in RCW 10.73.100.
RCW 10.73.100 states:
We review de novo pure questions of law.
Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)).
COLLATERAL REVIEW OF FINAL JUDGMENT
Orantes moved for relief from his August 2006 judgment and sentence in January 2011, more than a year after the judgment was final. Generally, a personal restraint petition is untimely if made more than one year after a decision is final. Thus, the threshold question in this request for collateral review is whether this request falls within any exception stated in RCW 10.73.100. We hold that RCW 10.73.100(6), the sole exception on which Orantes relies, is inapplicable to this case.
RCW 10.73.100(6) states that the one year bar of RCW 10.73.090 does not apply in a collateral review:
[t]here has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require a retroactive application of the changed legal standard.
(Emphasis added.)
Material to the Conviction
The plain words of this statute require that three major criteria exist for relief from the one year time bar: a "significant change in the law, " a change that is "material to the conviction, " and a determination by either the legislature or the courts that the change "require[s] retroactive application." The absence of any one of these is fatal to the application of this exception to the one year bar to collateral relief.
State v. Evans, 154 Wn.2d 438, 448-49, 114 P.3d 627 (2005) (noting that collateral relief from a final judgment may be granted after the one-year time bar only where there has been a "material" change in the law and the two other statutory criteria exist).
The term "material" is not defined by the statute. Therefore, we may turn to a definition found in a standard dictionary. In the context of this statute, the word "material" most closely means "[h]aving some logical connection with the consequential facts <material evidence>."
State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003).
Black's Law Dictionary 1066 (9th ed. 2009).
Applying that meaning here, the claimed change in law on which Orantes relies must have some logical connection to his conviction or sentence—meaning the change would have been of some consequence to the outcome.Whether Padilla and the other cases on which Orantes relies for collateral relief would have been of some consequence to his 2006 judgment is at issue.
Before addressing that question, we must make clear that Orantes's request for collateral review is based solely on the claim that the August 2006 sentencing court deprived him of due process by not informing him of potential adverse immigration consequences arising from his plea. For this reason, he claims that his plea was not intelligently and voluntarily made. He expressly disclaims any reliance on ineffective assistance of counsel under the Sixth Amendment to the United States Constitution.
Motion for Relief from Judgment at 4-6.
Id.
Reply to Respondent's Response to Petitioner's Supplemental Brief at 3 ("as the State accurately points out, Mr. Orantes has not raised a claim of ineffective assistance of counsel. Mr. Orantes has claimed that his plea was involuntary because he was not informed of a direct consequence of his plea. Such a claim does not rise or fall on the performance of counsel, and courts do not analyze such claims through the prism of the sixth amendment right to counsel.").
In Padilla, the Supreme Court considered the case of a native of Honduras in a "postconviction proceeding". He faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. Relying on his counsel's advice that he "'did not have to worry about immigration status [in considering a plea to the charge] since he had been in the country so long[, ]'" Padilla pled guilty. The advice proved mistaken as the drug charge made his deportation virtually mandatory. Padilla claimed he was entitled to relief from his plea and sentence because he would have insisted on going to trial if he had not received incorrect advice from his lawyer before his plea. The Kentucky Supreme Court denied his request for relief.
Padilla, 130 S.Ct. at 1477-78.
Id. at 1477.
Id. at 1478 (quoting Com. of Kentucky v. Padilla, 253 S.W.3d 482, 483 (2008)).
Id.
Id.
Id.
The United States Supreme Court, accepting Padilla's allegations as true, held that he had alleged a constitutional deficiency sufficient to satisfy the first prong of the ineffective assistance of counsel test stated in Strickland v. Washington. The holding was not based on any claim of deprivation of due process.
Here, Orantes does not make an ineffective of counsel claim. As we noted above, he expressly disclaims any such argument. Rather, he relies solely on the claim that he was denied due process because the sentencing court did not inform him of the possible adverse consequences of his plea.
Orantes argues that this request for relief is timely because the "rule from Padilla constitutes a significant, material change in the law." He urges that the case is material to the conviction he seeks to set aside because Padilla indicated that adverse immigration consequences cannot be considered as collateral to a criminal proceeding. For the following reasons, his reliance on Padilla for his due process claim is misplaced.
Motion for Relief from Judgment at 7-9.
Id.
In Padilla, the Supreme Court decided that deportation as a consequence of a criminal conviction is uniquely difficult to classify as either a direct or collateral because of its close connection to the criminal process. But in refusing to classify deportation as either a direct or indirect consequence, the Court concluded that the distinction between the two was not suited to evaluate a Strickland claim. Rather, advice regarding deportation "is not categorically removed from the ambit of the Sixth Amendment right to counsel."
Padilla, 130 S.Ct. at 1481-82.
Id. at 1482.
Id.
In sum, Padilla is a Sixth Amendment case, holding that counsel is deficient under Strickland by failing to advise a client of adverse immigration consequences that may arise from a plea. The holding of that case is not based on due process, the claim that Orantes makes here. The Court's observation that deportation was ill-suited to classify as a direct or collateral consequence was made in the context of the Sixth Amendment right to effective assistance of counsel, not due process.
Id. at 1482-83.
We agree with Orantes that the context in which a claim is brought does not necessarily determine the scope of the case's holding. Nevertheless, due process and Sixth Amendment analyses are distinct, as our state supreme court has since expressly stated in State v. Sandoval. Thus, Padilla, which did not address a defendant's due process rights, does not support the argument that Orantes makes here: that Padilla's holding is a material change in due process law, which supports his attack on his August 2006 judgment and sentence.
171 Wn.2d 163, 169, 249 P.3d 1015 (2011) ("The Sixth Amendment right to effective assistance of counsel encompasses the plea process. . . . Ordinary due process analysis does not apply.").
In a supplemental brief, Orantes argues that our state supreme court's decision in Sandoval supports his argument that Padilla constitutes a significant change in due process law. We disagree.
Valentin Sandoval, a noncitizen permanent resident of the United States, was charged with second degree rape. During plea negotiations, the prosecutor offered to reduce the charge to third degree rape, in exchange for a guilty plea. Sandoval conferred with his attorney. He said that he would not plead to the charge if that resulted in deportation. His attorney advised him to plead guilty, telling him that "he should accept the State's plea offer because he would not be immediately deported and . . . would then have sufficient time to retain proper immigration counsel to ameliorate any potential immigration consequences of his guilty plea." Sandoval trusted his attorney.
Sandoval, 171 Wn.2d at 167.
Id.
Id.
Id.
Id.
Sandoval pleaded guilty to the reduced charge. The court sentenced him to a standard range sentence of 6 to 12 months of confinement, with credit for time served.
Id.
Id.
Before his release from confinement, the federal government put a "hold" on his release and commenced deportation proceedings against him. He sought relief from the judgment in superior court, which the court denied.
Id. at 168.
Id.
It appears that he concurrently filed a personal restraint petition with his appeal of the trial court's denial of his request for relief. The court of appeals consolidated the appeal and petition, affirmed the conviction, and dismissed the petition.
Id.
Id.
The supreme court granted Sandoval's petition for review. The court stated the question before it as follows: "[W]hether, in light of . . . Padilla, . . . a noncitizen criminal defendant can be denied the right to effective assistance of counsel when the defense attorney erroneously assures the defendant that the deportation consequence of a guilty plea can be mitigated." The court answered that question in the affirmative, holding that Sandoval's counsel during the plea process "'fell below an objective standard of reasonableness, '" under Strickland.
Id. at 174 (quoting Strickland, 466 U.S. at 688).
This holding was based solely on ineffective assistance of counsel under the Sixth Amendment. It was not based on due process, the claim Orantes asserts here.
Indeed, as we noted above, Sandoval made clear that a due process analysis is distinct from that used in an ineffective assistance of counsel claim:
The Sixth Amendment right to effective assistance of counsel encompasses the plea process. Counsel's faulty advice can render the defendant's guilty plea involuntary or unintelligent. To establish the plea was involuntary or unintelligent because of counsel's inadequate advice, the defendant must satisfy the familiar two-part Strickland v. Washington test . . . . Ordinary due process analysis does not apply.Orantes relies on a footnote in Sandoval to support his argument. The footnote states that the court of appeals had relied on In re Personal Restraint of Yim to deny Sandoval's request for relief. That earlier state supreme court case held that deportation was merely a collateral consequence of a guilty plea, not entitling the defendant to relief. The Sandoval footnote then states:
Padilla has superseded Yim's analysis of how counsel's advice about deportation consequences (or lack thereof) affects the validity of a guilty plea.
Id. at 169 (internal citations omitted) (emphasis added).
139 Wn.2d 581, 587-89, 989 P.2d 512 (1999).
Sandoval, 171 Wn.2d at 170 n.1.
Id. at 170-71 n.1.
But this footnote does not change the basis of Sandoval's holding from ineffective assistance of counsel under the Sixth Amendment to due process. Rather, it indicates that Padilla supplanted the analysis of direct and collateral consequences of pleas in Yim. As we stated earlier in this opinion, the Padilla court concluded that the distinction between direct and collateral consequences was not suited to evaluate a Strickland claim under the Sixth Amendment.Thus, Padilla and Sandoval's rejection of the direct versus collateral distinction is significant for the purpose of analyzing an ineffective assistance of counsel claim. But neither Padilla nor Sandoval states that the rejection of this direct versus collateral distinction in Sixth Amendment deportation cases has any bearing on due process. That is unsurprising because a due process claim, as Sandoval recognizes, requires a separate analysis.
Padilla, 130 S.Ct. at 1482.
Orantes also relies on State v. Olivera-Avila. He appears to argue that, under Olivera-Avila, a decision that affects the voluntary nature of a defendant's plea should be applied retroactively. We need not address this contention, however, because our holding rests on the lack of materiality of the Padilla holding to Orantes's due process claim. As we stated earlier, the holdings of Padilla and Sandoval are based on Sixth Amendment ineffective assistance of counsel claims. Neither is based on due process. Olivera-Avila is a due process case, but does not alter the lack of materiality of Padilla to Orantes's case. Thus, Olivera-Avila is unhelpful.
89 Wn.App. 313, 949 P.2d 824 (1997).
Accordingly, none of the authorities on which Orantes relies support the conclusion that Padilla is material for due process purposes to the August 2006 judgment and sentence that he seeks to overturn in this request for collateral review. Because he fails to establish that this case is material to that judgment and sentence, we need not decide if Orantes has shown that he fulfills the other criteria of RCW 10.73.100(6).
We conclude that Orantes fails in his burden to show that his untimely request for collateral review falls within the exception specified in RCW 10.73.100(6). Therefore, we do not reach the merits of his claim.
We dismiss his personal restraint petition.
We Concur.
The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct;
(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;
(5) The sentence imposed was in excess of the court's jurisdiction; or
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
See Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 511, 598 P.2d 1358 (1979), overruled on other grounds by Wood v. Gibbons, 38 Wn.App. 343, 685 P.2d 619 (1984) ("A 'material fact' is one on which the litigation's outcome depends." (quoting Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977))); Zedrick v. Kosenski, 62 Wn.2d 50, 54, 380 P.2d 870 (1963) ("'material facts' are those '. . . upon which the outcome of the litigation depends.'" (quoting Capitol Hill Methodist Church v. Seattle, 52 Wn.2d 359, 364, 324 P.2d 1113 (1958))).
Id. at 1482-83 (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Id.
Id. at 166-67.