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Opinion: Judge’s warning doesn’t absolve attorney

Copyright © 2013 Albuquerque Journal

FAVELA: Claims counsel’s advice ‘ineffective’

FAVELA: Claims counsel’s advice ‘ineffective’

A judge’s warning to a criminal defendant about potential immigration consequences of a guilty or no contest plea don’t absolve the defendant’s attorney of the need to properly advise his client, the New Mexico Court of Appeals says in a recent opinion.

The Court of Appeals said Cesar Favela is entitled to a hearing seeking to set aside his guilty plea to aggravated battery and driving while intoxicated charges based on his claims of ineffective assistance of counsel.

Favela, a Mexican national and permanent resident of the United States, entered a plea in 2004 in the 3rd District Court in Las Cruces to five criminal counts and was sentenced to prison. After the sentence was served with the New Mexico Department of Corrections, he was taken into custody by the U.S. Immigration and Customs Enforcement Service for “removal,” or deportation.


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Favela filed a writ while he was incarcerated seeking to have his plea and sentence set aside. The district court denied the petition and he asked for reconsideration.

Appeals Court Judge Jonathan Sutin said in an opinion published in the Dec. 25 Bar Bulletin that the formal exchange between a judge and a defendant when a plea is made in court does not offset the requirement of getting sound legal advice from his attorney.

When Favela entered the plea, his attorney said that, although Favela was in the U.S. legally, “more than likely he will have a great consequence on … his papers being taken away.” The judge repeated the statement that a conviction would have an effect on Favela’s immigration status and Favela said he understood.

The appeals court said when a defendant relies on an attorney’s advice during the plea process, “the voluntariness and intelligence of the defendant’s plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea.”

In a 2004 New Mexico Supreme Court case, the opinion notes, advice that a defendant ” ‘could’ or ‘might’ be deported is also inadequate.”

The district court in Favela’s case entered an order accepting Favela’s allegations that his counsel hadn’t told him of the immigration consequences of his plea but saying it didn’t matter because the trial court advised him that a conviction would surely result in his being deported.

Appellate courts in New Mexico haven’t previously addressed the issue of whether the judge’s advice during the plea hearing can “cure” the deficiencies of legal representation and courts in other states have split on the issue, the opinion notes.

Georgia, for instance, said a judge’s warnings of adverse consequences, especially when the defendant says he or she understands, means the defendant cannot show prejudice to his case.


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Florida, by contrast, said the verbal exchange during a plea containing a judge’s “equivocal warning” can’t remove the harm from deficient legal advice.

The New Mexico Supreme Court agreed to review the Court of Appeals opinion.

In ordering the case sent back, Sutin and Judges Cynthia Fry and Linda Vanzi recommended that the district judge ask both the defendant and his lawyer about the extent to which the immigration consequences of the plea were discussed before signing the plea, before entering it and before sentencing occurs.

The district court should examine “the various considerations discussed herein, in light of the harsh and drastic consequences that deportation poses,” the opinion said.