Padilla v. Kentucky, 559 U.S. 356, 367, 130 S.Ct. 1473,
176 L.Ed.2d 284 (2010), the United States Supreme Court held
that constitutionally competent counsel must advise a client
facing criminal charges about the risk of deportation. In
In re Personal Restraint of Yung-Cheng Tsai, our
Supreme Court held that while Padilla created a
"new rule" under federal law for retroactivity
purposes, Washington has long required by statute that
criminal defendants be advised of immigration consequences of
a guilty plea, so Padilla simply applied a
Washington lawyer's duty to a specific concern. 183 Wn.2d
91, 100-03, 351 P.3d 138 (2015) (applying Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989)); cf. Chaidez v. United States, 568 U.S. __,
133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013) (arriving at a
different result under federal law, which had not previously
recognized a lawyer's duty under the Sixth Amendment to
the United States Constitution to advise a criminal defendant
of collateral immigration consequences). Because
Padilla did not announce a new rule under Washington
law, it applies retroactively to matters on collateral
review. Tsai, 183 Wn.2dat 103.
the distinct issue of whether Padilla is a
retroactively applicable "significant change in [the]
law" that overcomes the one-year time bar to collateral
relief provided by RCW 10.73.100(6), the Tsai court
held that it was. Tsai, 183 Wn.2d at 103. This is
because several Washington appellate decisions issued before
Padilla appeared to foreclose any possibility that
the unreasonable, prejudicial failure to provide statutorily
required advice on deportation consequences could ever be
ineffective assistance of counsel. Tsai, 183 Wn.2d
Antonio Manajares presents an argument made possible and
timely by these cases: he contends he should be entitled
under CrR 7.8 to withdraw his 2002 guilty plea to unlawful
imprisonment because his lawyer failed to advise him that the
plea would subject him to removal or exclusion from this
country. Whether his lawyer's performance was deficient
depends on the clarity of the law, however, and Mr. Manajares
fails to show that law he contends was not explained to him
was truly clear in 2002. Because his lawyer's
representation was not deficient, we affirm denial of his
motion to withdraw his plea.
AND PROCEDURAL BACKGROUND
December 2002, Jose Manajares entered an
Alford plea to one count of unlawful
imprisonment. Because he was not acknowledging a statement of
the factual basis for his plea, his statement on plea of
guilty included his agreement that "the court may review
the police reports and/or a statement of probable cause
supplied by the prosecution." Clerk's Papers (CP) at
7. In accepting the plea, the trial court was asked by the
State to review the affidavit of probable cause and
acknowledged that it had.
1983, the Washington Legislature had declared that a
noncitizen defendant must be warned about immigration
consequences before pleading guilty to a crime, and the
standard plea form signed by Mr. Manajares included a general
warning of immigration consequences added following that
legislation. Tsai, 183 Wn.2d at 101; LAWS OF 1983,
ch. 199, § 1(1), codified at RCW 10.40.200(1).
Mr. Manajares acknowledged that the plea form was read to him
by an interpreter. The interpreter affirmed that Mr.
Manajares acknowledged his understanding of the translation
and subject matter of the form.
accepting the plea, the court asked Mr. Manajares if he
understood that his "plea of guilty to this count is
grounds for deportation from the United States, . . .
exclusion from admission to the United States and denial of
naturalization, " and he answered yes. CP at 65. The
court accepted the plea and sentenced Mr. Manajares to 41
days of incarceration and 12 months of community custody.
after he entered the plea, Mr. Manajares was removed from the
United States by the United States Immigration and
Naturalization Service. A later-prepared report of
investigation by a deportation officer indicated that Mr.
Manajares had been "removed subsequent to a conviction
for commission of an aggravated felony." CP at 123.
10 years after his 2002 conviction, Mr. Manajares filed a CrR
7.8 motion to vacate his Alford plea. He argued he
received ineffective assistance of counsel because the lawyer
representing him in connection with the 2002 charges, David
De Long, failed to advise him that deportation or exclusion
from the country was a certain result of the conviction. In
support of his motion, Mr. Manajares testified by
I know that Mr. David De Long told me that I could apply to
stay in the United States once I got to the immigration
court. I remember this only because he also wished me good
luck with it when I saw him for the last time. Even I was
looking forward to going to the immigration court after his
words. I figured that he must know something about it even if
he wasn't an immigration attorney. Supposing Mr. De Long
had even told me differently that he just didn't know
about what the immigration court would do and that he might
have even made more problems for me because of how he filled
out my forms, I would have been very concerned. I would have
told him that I needed to be sure about all of this before I
just agreed to plead guilty.
of Additional Grounds.
Manajares also submitted an affidavit from Mr. De Long, who
testified he was unable to remember Mr. Manajares's case
but that it was his "practice to go over [his]
clients' guilty pleas with them in their entirety
including the general immigration warnings." CP at 72.
His affidavit also states:
Criminal defense counsel at the time of Mr. Manajares guilty
plea were not required under Washington law to specifically
advise as to the immigration consequences of entering a
guilty plea. At the time of his guilty plea, I was not
sufficiently cognizant of the immigration consequences of
criminal convictions to know for certain whether or not Mr.
Manajares would actually be deported or not.
Id. at 71-72.
trial court refused to entertain the motion to vacate because
Mr. Manajares was not present. Mr. Manajares appealed. A
commissioner of this court affirmed the trial court's
order "that denied the motion to vacate" on other
grounds, holding that Padilla did not have
retroactive effect; Mr. Manajares's motion was untimely,
having been filed over a year after the judgment became
final; and, given the warning of immigration consequences set
forth in his statement of plea of guilty that Mr. De Long
reviewed with his client, Mr. Manajares failed to demonstrate
ineffective assistance of counsel. Commr's' Ruling
(Nov. 20, 2013) at 4.
Manajares petitioned the Washington Supreme Court for review.
In November 2015, the Supreme Court remanded the appeal to
this court for reconsideration in light of its decision in
Tsai. In addition to holding that Padilla
was a significant change of law that can overcome the
one-year time bar to collateral relief provided by RCW
10.73.100(6), Tsai established that Padilla
overcomes the bar only in cases where a defense lawyer fails
to research and apply the law, not where the lawyer
affirmatively offers incorrect advice. Tsai, 183
Wn.2d at 107. Washington courts had long recognized that
where a plea is entered in reliance on erroneous advice, it
may be rendered involuntary and withdrawn.
the court in Tsai reiterated its holding in
State v. Sandoval,171 Wn.2d 163, 173, 249 P.3d 1015
(2011) that the general warning statement included in the
standard plea form is not itself the required advice and does
not excuse a defense lawyer from the duty to research and
advise a client of relevant law. Tsai, 183 Wn.2d at
101. As observed in Sandoval, if defense counsel
couches advice about immigration consequences with
uncertainty, it ...