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Popoca-Garcia v. State

Court of Appeals of Idaho

August 22, 2014

GERMAN POPOCA-GARCIA, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent

2014 Opinion No. 47S

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.

GRATTON, Judge. Judge LANSING and Judge MELANSON CONCUR.

OPINION

Page 825

GRATTON, Judge

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 informed 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 ...


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