2014 Opinion No. 47
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. David C. Nye, District Judge.
Order denying petition for post-conviction relief, affirmed.
Maria Elena Andrade, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.
German Popoca-Garcia appeals from the order denying his petition for post-conviction relief. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Popoca-Garcia is a citizen of Mexico and prior to his deportation, he was a permanent resident of the United States. Pursuant to a negotiated plea agreement, Popoca-Garcia pled guilty to lewd conduct with a child under the age of sixteen, a violation of Idaho Code § 18-1508. At the change of plea hearing, the court ensured that Popoca-Garcia's plea was knowingly, intelligently, and voluntarily made. After the court accepted the plea, Popoca-Garcia's trial counsel informed the court that his client would likely face immigration consequences based on the guilty plea and that his permanent resident status could be in jeopardy. The court then asked if Popoca-Garcia understood that he could be deported. Popoca-Garcia answered, "Yes." The court ordered a psychosexual evaluation and later sentenced Popoca-Garcia to a unified term of ten years with two years determinate and retained jurisdiction. The court later relinquished jurisdiction and ordered Popoca-Garcia's original sentence executed. Popoca-Garcia did not appeal his conviction and sentence.
Subsequently, Popoca-Garcia filed a petition for post-conviction relief asserting that his trial counsel failed to adequately inform him of the immigration consequences resulting from his guilty plea. A notice of intent to dismiss was issued by the district court and after both parties responded, the court held an evidentiary hearing. At the hearing, trial counsel testified that he unequivocally told Popoca-Garcia that under federal law, the offense required deportation. He also testified that he told Popoca-Garcia that an immigration agent had told the prosecutor that the agent did not think the crime required deportation. Trial counsel also testified that he told Popoca-Garcia the immigration agent was mistaken and that he would be deported. The only other witness to testify was Popoca-Garcia's stepfather. He testified that trial counsel did not answer all his questions about his stepson's immigration status and that the attorney said he would not know until the immigration agency decided. Before the district court issued its opinion, Popoca-Garcia was deported. The court then denied the petition for post-conviction relief. Popoca-Garcia timely appeals.
Popoca-Garcia argues that his trial counsel provided ineffective assistance of counsel by failing to adequately inform him of the immigration consequences of his guilty plea. In order to prevail in a post-conviction proceeding, the petitioner must prove the allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. Idaho Rule of Civil Procedure 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Baxter, 149 Idaho at 862, 243 P.3d at 678.
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show that the attorney's performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). Where, as here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the petitioner must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court determined the standard of representation required when a guilty plea could have potential immigration consequences. The Court first held that under the Sixth Amendment right to counsel, as articulated in Strickland, counsel may have a duty to provide advice relating to deportation. Id. at 366. The Court then held that "when the deportation consequence is truly clear, as it was in [Padilla's] case, the duty to give correct advice is equally clear." Id. at 369. On the other hand, when the law is less clear or uncertain "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. Padilla had pled guilty to distributing drugs. Federal law required automatic deportation for any conviction relating to controlled substances other than simple possession of marijuana offenses. Thus, ...