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State v. Manajares

Court of Appeals of Washington, Division 3

February 2, 2017


          SIDDOWAY, J.

         In 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.

         Addressing 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 at 105.

         Jose 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.


         In December 2002, Jose Manajares entered an Alford[2] 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.

         In 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[3] 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.

         Before 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.

         Shortly 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.

         Almost 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 declaration:

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.

         Statement of Additional Grounds.[4]

         Mr. 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.

         The 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.

         Mr. 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. Id.[5]

         Finally, 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 ...

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