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Aguilar v. State

Court of Appeals of Oregon

June 6, 2018

OSCAR FRANCISCO AGUILAR, aka Oscar Francisco Aguilar-Vasquez, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted June 28, 2016

          Marion County Circuit Court 14C11582; Linda Louise Bergman, Senior Judge.

         Brian Patrick Conry argued the cause and fled the briefs for appellant.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent.

          With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeHoog, Presiding Judge, and Powers, Judge, and Edmonds, Senior Judge. [*]

         [292 Or. 310] Case Summary: Petitioner appeals from a judgment denying his petition for post-conviction relief that contained two related claims involving the advice he received on the immigration consequences of his underlying guilty plea. Petitioner alleges that he was denied adequate assistance of counsel and that his plea was not knowingly or voluntarily entered. The post-conviction court denied relief, concluding that petitioner received adequate assistance of counsel such that he was adequately informed of the consequences of his plea and that he knowingly and voluntarily entered into the plea agreement. Held: The post-conviction court did not err in denying relief. Although trial counsel did not provide comprehensive advice on the immigration consequences of a guilty plea, trial counsel advised petitioner that "if he plead[ed] guilty to the charges he would be deported unless [Immigration and Customs Enforcement (ICE)] decided not to pursue deportation proceedings." Additionally, the plea petition that trial counsel reviewed with petitioner informed petitioner that his plea and the conviction would result in deportation. Accordingly, trial counsel's advice was constitutionally sufficient under the state and federal constitutions. Further, because petitioner's claim that his plea was entered unknowingly and involuntarily was premised on trial counsel's advice with respect to the immigration consequences of his plea, the post-conviction court did not err in denying relief.

         Affirmed.

         [292 Or. 311] POWERS, J.

         In this post-conviction proceeding, petitioner appeals from a judgment denying his petition for post-conviction relief that contained two related claims involving the advice he received on the immigration consequences of his underlying guilty plea. First, petitioner alleges that he was denied adequate assistance of counsel where, despite being advised that he would be deported if he entered a guilty plea, he was not advised that a plea would render him ineligible for consideration under the Deferred Action for Childhood Arrivals (DACA) program, which allows specified noncitizens who were brought to the United States as children to apply and potentially receive a limited deferral from removal proceedings in an exercise of prosecutorial discretion. Second, petitioner asserts that his plea was not knowingly or voluntarily entered, because he was misinformed by his attorney such that he did not fully understand the immigration consequences that would result from his guilty plea. The post-conviction court rejected both claims, concluding that petitioner received adequate assistance of counsel such that he was adequately informed of the consequences of his plea and that he knowingly and voluntarily entered into the plea. For the reasons that follow, we affirm the post-conviction court's judgment.

         We review the post-conviction court's legal conclusions for errors of law. Chew v. State of Oregon, 121 Or.App. 474, 476, 855 P.2d 1120, rev den, 318 Or. 24 (1993). In our review, we are bound by its factual findings that are supported by evidence in the record. Fisher v. Angelozzi, 285 Or.App. 541, 545, 398 P.3d 367 (2017). If the post-conviction court does not make express findings on a specific issue and there is evidence from which the facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion made by the trial court. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We describe the facts in accordance with those standards of review.

         Petitioner, a noncitizen born in 1993, was brought to the United States in either 1994 or 1997 when he was a minor. In 2013, petitioner was charged with assault in the [292 Or. 312] third degree and riot, based on his participation in a gang-related attack involving five or more persons that resulted in the victim suffering physical injury. On the same day that he was charged, petitioner met with his court-appointed counsel, and he admitted his involvement and guilt to the charges to his attorney during that meeting. About eight days later, on a Friday, the state extended a written plea offer, which trial counsel presented to petitioner the following Monday morning for review. The offer included a term of probation and a 10-day jail term with credit for time served. At that point, petitioner had been in custody for 11 days. Trial counsel also discussed petitioner's immigration status with him at that meeting:

"During my conversation with [petitioner] we specifically discussed his immigration status. [Petitioner] informed me that he was not a citizen and was not in the United States legally. I informed [petitioner] that if he plead[ed] guilty to the charges he would be deported unless [Immigration and Customs Enforcement (ICE)] decided not to pursue deportation proceedings. [Petitioner] indicated that he was going to retain an immigration attorney to represent him in his immigration issues. I inquired if [petitioner] wanted me to set the court appearance out for a period of time to provide him additional time to talk with the immigration attorney. [Petitioner] ...

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