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Garcia-Navarro v. State

Court of Appeals of Oregon

March 7, 2018

JAVIER GARCIA-NAVARRO, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Submitted September 27, 2016.

         Clackamas County Circuit Court CV14060099 William M. Horner, Senior Judge.

          Dana M. Mitchell fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael S. Shin, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.

         Case Summary: Petitioner, who had lived for many years in the United States as a permanent legal resident, appeals from a judgment denying his petition for post-conviction relief. Petitioner pleaded guilty to crimes including unlawful delivery of methamphetamine. He subsequently pursued post-conviction relief on the ground that he received inadequate assistance of counsel because he was not properly advised of the immigration consequences that would follow a guilty plea to the drug charges. Petitioner asserted that he would not have pleaded guilty had he been properly advised of those consequences. Held: The post-conviction court erred when it concluded that the performance of petitioner's trial lawyer was not constitutionally deficient. Under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a trial counsel's obligation is to advise clients that guilty pleas to almost any drug offense will result in "presumptively mandatory" deportation. 559 U.S. at 369.

         Reversed and remanded.

         [290 Or.App. 588] HADLOCK, J.

         Petitioner, who lived for many years in the United States as a permanent legal resident, appeals from a judgment denying his petition for post-conviction relief. Petitioner pleaded guilty to crimes including unlawful delivery of methamphetamine. He subsequently pursued postconviction relief on the ground that he received inadequate assistance of counsel because the lawyer who represented him in the criminal proceeding did not advise him of the immigration consequences that would follow a guilty plea to the drug charges. Petitioner asserted that he would not have pleaded guilty had he been properly advised of those consequences. The post-conviction court denied relief following a trial. For the reasons set out below, we reverse and remand.

         In the underlying criminal proceedings, petitioner was arrested and charged with three counts of unlawful delivery of methamphetamine, three counts of unlawful possession of methamphetamine, one count of first-degree child neglect, and one count of endangering the welfare of a minor. Petitioner subsequently entered into a plea agreement that resulted in him pleading guilty to two counts of unlawful delivery of methamphetamine and to endangering the welfare of a minor (the remaining charges were dismissed). The plea agreement permitted petitioner to argue for a probationary sentence and the prosecutor to argue for a sentence of imprisonment. At sentencing, petitioner's lawyer advocated strongly for probation, but the trial court imposed prison sentences on both delivery convictions and a concurrent jail sentence on the child endangerment conviction, resulting in a 28-month term of incarceration. Deportation proceedings subsequently were initiated against petitioner.

         Petitioner filed a petition for post-conviction relief in which he claimed that he had received inadequate and ineffective assistance of counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. That claim was based on petitioner's allegation that the lawyer who represented him in the criminal proceedings did not inform him that his guilty plea to unlawful delivery of methamphetamine would trigger mandatory deportation proceedings. Petitioner [290 Or.App. 589] alleged that he would not have entered the plea agreement had he known of those immigration consequences; instead, he asserted, he would have insisted on going to trial if that was the only avenue for possibly avoiding deportation. At the post-conviction trial, petitioner submitted evidence supporting that claim, including his own affidavit and live trial testimony, in which he stated that he did not know before he entered the plea agreement that he would be subject to mandatory removal if he pleaded guilty; he also asserted that he would not have entered the plea if he had had that information.[1]

         In response to petitioner's inadequate-assistance claim, the state submitted an affidavit from the lawyer who represented petitioner during the criminal proceedings. That lawyer explained that his strategy was to obtain a probationary or work-release sentence for petitioner because, in that lawyer's experience, a sentence that did not involve incarceration "could help him avoid being noticed by federal officials, " perhaps with the result that deportation proceedings would not be triggered. The lawyer also stated that he advised petitioner that "the guilty plea * * * could result in deportation, and further that a prison sentence would make deportation proceedings essentially guaranteed." At the post-conviction trial, the lawyer expressed his belief that he had told petitioner "that we could avoid deportation if he were granted probation, " because the lawyer had "seen it where a person will plead guilty to an offense that would otherwise trigger deportation, but because they're out of custody, it never happens." The lawyer acknowledged, however, that he had not then known that deportation would be mandatory following petitioner's guilty plea no matter what sentence was imposed. He also acknowledged not having consulted an immigration attorney about petitioner's case, although that is now his practice "on any case where someone is not a citizen."

         Relying on the trial lawyer's representations, the state argued that petitioner made a tactical choice to seek [290 Or.App. 590] a probationary sentence in hopes that he would not come to the attention of federal immigration officials if he were not incarcerated. The state also asserted that petitioner could not demonstrate prejudice.

         The post-conviction court denied petitioner's claim for relief. The judgment states that relief is denied on the basis of the "findings of fact and conclusions of law as stated on the record." It also provides that all questions were presented and decided, but the judgment itself does not further explain the basis for the court's ruling. The referenced "on the record" findings include the court's explanation that it was denying relief because petitioner and his lawyer made a tactical decision to pursue a probationary sentence in hopes of staying "under the radar" with immigration authorities. The court further explained that the lawyer clearly was aware of the risk of deportation, and the court "could not think of why an attorney, knowing that, would not at least mention that to his client." See generally Asbill v. Angelozzi,275 Or.App. 408, 413, 365 P.3d 587 (2015), rev den,358 Or. 794 ...


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