Opinion
347331
02-10-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSE DANIEL ALONSO, Defendant-Appellant.
UNPUBLISHED
Van Buren Circuit Court LC No. 2017-020932-FC
Before: M. J. Kelly, P.J., and Stephens and Redford, JJ.
PER CURIAM
Defendant, Jose Alonso, appeals by leave granted the trial court's denial of his motion to withdraw his guilty plea conviction of assault with intent to commit great bodily harm less than murder, MCL 750.84, on the basis of ineffective assistance from his defense lawyer. For the reasons stated in this opinion, we affirm.
This Court originally denied leave to appeal. People v Alonso, unpublished order of the Court of Appeals, entered March 26, 2019 (Docket No. 347331). Subsequently, our Supreme Court, pursuant to MCR 7.305(H)(1) and in lieu of granting leave to appeal, remanded this case to this Court as on leave granted. People v Alonso, 506 Mich. 879 (2020).
I. BASIC FACTS
Alonso, a citizen of Mexico, has lived for 16 years in the United States as a permanent resident. In 2017, he was charged with assault with intent to murder, MCL 750.83, reckless driving causing serious impairment, MCL 257.626, and assault with a dangerous weapon, MCL 750.82. On the date set for trial, Alonso pleaded guilty to assault with intent to do great bodily harm less than murder in exchange for the prosecution dismissing the original three charges. Additionally, Alonso and the prosecutor reached a Killebrew agreement under which Alonso's sentence would be 5 to 15 years.
People v Killebrew, 416 Mich. 189; 330 N.W.2d 834 (1982).
Thereafter, Alonso filed a motion to withdraw his plea, arguing that his lawyer's assistance was constitutionally ineffective because he had only provided a generic warning that there might be immigration consequences to Alonso's plea. Alonso asserted that under federal immigration law if a sentence of one year or more is imposed, a conviction of assault with intent to do great bodily harm less than murder is an aggravated felony for which deportation is mandatory. Relying on Padilla v Kentucky, 559 U.S. 356; 130 S.Ct. 1473; 176 L.Ed.2d 284 (2010), he argued that under the relevant immigration statutes (and caselaw interpreting those statutes) the deportation consequence of his conviction are succinct, clear, and explicit; therefore, his lawyer had a duty to advise him that if he pleaded guilty to assault with intent to do great bodily harm less than murder with a sentencing agreement for a minimum of 5 years, he would be deported under federal immigration law. Thus, he asserted that, by only advising him that there might be adverse immigration consequences, his lawyer's performance fell below an objective standard of reasonableness.
The trial court held an evidentiary hearing on the motion. Alonso testified that with respect to immigration consequences, his trial lawyer advised him that "there might be some-some consequences, which [his lawyer] did not know about." He stated that he did not "really ask [his lawyer] any further about it." Later, he learned that he would be deported as a consequence of his conviction. He testified that if he had known that he would be deported, he would not have pleaded guilty and would have instead proceeded to trial on the original three charges. He also stated that he had never met with an immigration lawyer until after his conviction in this case, and he denied telling his trial lawyer that he was consulting with an immigration lawyer.
Alonso's trial lawyer testified that he discussed the potential immigration consequences with Alonso before trial. He stated:
The word deportation was brought up, but I'm not an immigration attorney; I advised him and his family of that, but I told him that he definitely has consequences and he could be deported. Did I distinguish between one felony and another? No. Did I distinguish between an aggravated felony and a moral turpitude felony? No. I gave him some examples of case where clients have been deported. One of them was very similar to his.
* * *
I gave him an example of a case that wasn't identical, but I remember it, it was a situation where a Saudi Western Michigan University student had ran his car into another's person's car on I-94-road rage-so it wasn't identical to Mr. Alonso's case, and I told him that after he had entered into a plea, even a plea where he had to plead to a felony and then it was reduced to misdemeanor after he graduated, that he ran into trouble and I believe was deported even on that factual situation where it was a felony reduced to a misdemeanor.
Alonso's trial lawyer also testified that, during their conversations, Alonso had expressed a belief that his family was working with an immigration lawyer. He also testified that he had "independent knowledge that [Alonso'] family was, or had, consulted with an immigration attorney." The record reflects that prior to being charged in the instant matter, Alonso was convicted of carrying a concealed weapon (CCW). He testified that he was not advised of any immigration consequences in connection with that conviction. However, attorney Gary Stewart testified that he was contacted by an immigration lawyer, Richard Kessler, "about potentially initiating a Padilla issue" in the CCW case. When Alonso was charged in the present case, Stewart declined to represent Alonso because of a conflict of interest. Accordingly, he referred the matter to Alonso's trial lawyer. Alonso's trial lawyer testified that when Stewart referred the case to him, Stewart "indicated that he was referred to the case by some immigration lawyer" and "that they were working on . . . a CCW that [Alonso] was concerned about the ramifications of that and how that might affect his citizenship and deportation." Alonso's trial lawyer took no steps to consult with the immigration lawyer.
Following the evidentiary hearing, the trial found:
In this particular case, Mr. Alonso came to [his trial lawyer], apparently through-what appears to be through-another attorney. There was an immigration lawyer already involved because of a prior conviction so [Alonso's trial lawyer] came into this understanding, reasonably so or inferring reasonably so, that there was an immigration attorney already involved. Mr. Alonso told him there was an immigration attorney already involved. Mr. Alonso talked to [his trial lawyer] about the immigration consequences. [His trial lawyer] testified that he told Mr. Alonso there will be consequences. He indicated he didn't know what the consequences would be, whether it would be deportation or not, but he made it clear to Mr. Alonso that there will be consequences.
Thereafter, the court determined that the immigration consequences of Alonso's plea were unclear or uncertain. As a result, under Padilla, Alonso's trial lawyer's duty was limited to advising Alonso that he might be subject to adverse immigration consequences. Because Alonso's lawyer did, in fact, advise Alonso that he might be subject to adverse immigration consequences, the trial court concluded that his performance was not deficient.
II. INEFFECTIVE ASSISTANCE
A. STANDARD OF REVIEW
Alonso argues that the trial court erred by determining that the immigration consequences of his plea-based conviction were uncertain or unclear. He asserts that because the immigration consequence is clearly a mandatory deportation, his lawyer was required to advise him of that clear consequence and his failure to do so constituted deficient performance under Padilla. "Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004) (quotation marks and citation omitted). "The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo." Id.
B. ANALYSIS
A defendant is entitled to the effective assistance of a lawyer when considering or negotiating a plea agreement. People v Douglas, 496 Mich. 557, 591-592; 852 N.W.2d 587 (2014). Relevant to the issue raised on appeal, a defense lawyer is obligated to properly advise a defendant regarding "whether his plea carries a risk of deportation." Padilla, 559 U.S. at 374. However, because "[i]mmigration law can be complex, and is a legal specialty of its own," the Padilla Court recognized that there will "undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain." Id. at 369. "When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito), 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. In a concurring opinion, Justice Alito posited that determining whether a particular crime is an "aggravated felony" or a "crime involving moral turpitude" involve areas of immigration law that are not succinct and straightforward. Id. at 378-379 (concurring opinion by Alito). The majority, acknowledging that numerous scenarios where the law is not succinct and straightforward, explained that it was only in cases where the "deportation consequence is truly clear" that the criminal defense lawyer's duty "to give correct advice is equally clear." Id. at 369 (opinion of the Court).
In Padilla, the defendant was a native of Honduras, but had been a lawful permanent resident of the United States for more than 40 years. Id. at 359. The defendant pleaded guilty to transporting a large quantity of marijuana, and, as a result of his plea, "his deportation was virtually mandatory." Id. at 359-360. His lawyer incorrectly advised him that he would not face any deportation consequences because of the length of time that he had been in the country. Id. at 359. In analyzing whether his lawyer's performance was deficient, the Supreme Court held:
In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction. See 8 USC 1227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable"). Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla's counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect. [Id. at 368-369 (quotation marks and citations omitted).]
Unlike the deportation consequence in Padilla, the deportation consequence in this case could not be easily determined by reading a single statute. Instead, a criminal defense lawyer would have to examine multiple sections of the federal Immigration and Nationality Act, 8 USC 1101 et seq. First, the defense lawyer would have to consider that under 8 USC 1227(a)(2), an alien convicted of a felony may be deportable. 8 USC 1227(a)(2). As recognized by Justice Alito in Padilla, it may be difficult "for defense counsel even to determine whether a client is an alien." Padilla, 559 U.S. at 379-380 (concurring opinion by Alito). Next, the defense lawyer must discover that 8 USC 1229(b) provides that an order of removal may be canceled if certain circumstances specific to the alien and his or her offense exist. However, an alien convicted of an "aggravated felony" is ineligible for cancellation of removal, 8 USC 1228(a)(3). 8 USC 1101(a)(43) provides a long list of crimes constituting aggravated felonies. At issue in this case is 8 USC 1101(a)(43)(f), which provides that "a crime of violence (as defined in section 15 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year" is an aggravated felony. A "crime of violence" is defined by 18 USC 16:
The term "crime of violence" means
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.In 2018, the United States Supreme Court concluded that § 16(b), the statute's "residual clause," was unconstitutionally vague. Sessions v Dimaya, __US__, __; 138 S.Ct. 1204, 1215-1216; 200 L.Ed.2d 549 (2018). Accordingly, only § 16(a) is constitutional.
At this point in the analysis, a criminal defense lawyer might conclude that he or she should look to see if there is any caselaw that clearly states the crime the defendant is charged with has been classified as an aggravated felony because it is a crime of violence. Alonso argues that a simple search would turn up Shaya v Holder, 586 F.3d 401 (CA 6, 2009). In Shaya, the Court of Appeals for the Sixth Circuit noted that the statutory definition of "crime of violence" requires that the defendant be subjected to a "term of imprisonment [is] at least one year." Id. at 403. The Court then held that "when using Michigan indeterminate sentences as the predicate for classifying someone as an 'aggravated felon,' the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater . . . ." Id. In doing so, the Shaya Court recognized that "whether a particular state conviction amounts to an aggravated felony conviction . . . depends upon interpreting state statutes . . . unrelated to immigration." Id. at 405 (quotation marks and citation omitted). As a result, the court examined at length how indeterminate sentencing is treated under Michigan law. See id. at 405-408. The Court did not, however, address any of the other requirements that must be satisfied before a crime is considered a crime of violence under 18 USC 16. Instead, the Court noted only that the defendant did not dispute the classification of his conviction for assault with intent to do great bodily harm less than murder as a crime of violence. Id. at 405 n 1. Thus, although there is caselaw suggesting that assault with intent to do great bodily harm less than murder in Michigan may be a crime of violence, the only part of the definition of crime-of-violence that was actually analyzed was the one-year-imprisonment requirement, and the Shaya Court deliberately did not address any of the remaining requirements.
In doing so, the Shaya Court did not foreclose the possibility of a future defendant arguing that his or her conviction of assault with intent to do great bodily harm less than murder was not a crime of violence.
Finding no clear and straightforward answer in federal caselaw, a criminal defense lawyer attempting to ascertain whether assault with intent to do great bodily harm less than murder is an aggravated felony could turn to a comparison of the elements of the crime with the definition of crime of violence set forth in the INA. Presumably, at that point, the lawyer would note that under 18 USC 16, a "crime of violence" requires that the underlying offense "has as an element the . . . attempted use . . . of physical force against the person or property of another." In turn, under MCL 750.84(1)(a), requires that the defendant "assaults another person with intent to do great bodily harm, less than the crime of murder." The Michigan statute does not mention that the defendant must attempt to use physical force against another person or that person's property, so the defense lawyer would then have to turn to caselaw or jury instructions to determine what "assault" means as that term is used in MCL 750.84(1)(a). In People v Bailey, 451 Mich. 657, 668-669; 549 N.W.2d 325 (1996), our Supreme Court held that, as used in MCL 750.84(1)(a), an assault is "an attempt or offer with force and violence to do corporal harm to another." At that point, the defense lawyer could say, with some level of certainty, that as long as the sentence of imprisonment for assault with intent to do great bodily harm less than murder is at least one year, then it is a crime of violence, so it is an aggravated felony that renders the defendant ineligible for cancellation of removal, which means that the defendant will, in fact, be deported.
When comparing Padilla to this case, it is clear that the determination of whether assault with intent to do great bodily harm will result in a mandatory deportation is not straightforward and clear. Instead of reference to a single statute that clearly, succinctly, and explicitly states that a defendant convicted of a certain offense will be deported, the analysis in this case requires reference to multiple sections of the INA, including sections that have been held unconstitutional. Although relevant caselaw exists-Shaya-that opinion expressly addresses only the requirement that an offense can only be considered a crime of violence if it includes a sentence of at least one year's imprisonment. Thereafter, comparison of the elements of assault with intent to do great bodily harm less than murder requires the defense lawyer to compare both the statutory language and state caselaw interpreting it to the relevant provisions in the INA. To state the analysis is to show its complexity. Given that the Padilla Court expressly approved of Justice Alito's statement that determining whether an offense is an aggravated felony is not straightforward and succinct, we discern no error in the trial court's determination that the statutes and caselaw and are not clear and straightforward. As a result, the only duty that Alonso's lawyer had was to advise Alonso that there would be adverse immigration consequences. The record reflects that he did so, and that, although he did not state with certainly what those consequences would be, he gave an example of a similar offense that resulted in the defendant being deported. Because Alonso's lawyer's performance was not deficient, Alonso cannot prevail on his ineffective assistance claim.
Affirmed.
Stephens, J. (concurring).
I concur with the majority's decision to affirm the trial court's denial of defendant's motion to withdraw his guilty plea conviction of assault with intent to commit great bodily harm less than murder (AWIGBH), MCL 750.84, on the basis of ineffective assistance from trial counsel. I believe counsel's performance was deficient. But, I would affirm under the prejudice prong.
The United States and Michigan Constitutions, U.S. Const Am VI; Const 1963, art 1, § 20, guarantee criminal defendants "the right to the effective assistance of counsel," People v Shaw, 315 Mich.App. 668, 672; 892 N.W.2d 15 (2016). To establish a claim of ineffective assistance of counsel, defendant must show that: (1) trial counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. People v Taylor, 275 Mich.App. 177, 186; 737 N.W.2d 790 (2007). Trial counsel's performance is deficient if it falls below an objective standard of professional reasonableness. People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007).
"[A] defendant is entitled to the effective assistance of counsel in the plea-bargaining process." People v Douglas, 496 Mich. 557, 591-592; 852 N.W.2d 587 (2014), citing Lafler v Cooper, 566 U.S. 156, 162; 132 S.Ct. 1376; 182 L.Ed.2d 398 (2012). An ineffective-assistance claim may be premised on trial counsel's failure to properly inform the defendant of the consequences of accepting or rejecting a plea offer. Hill v Lockhart, 474 U.S. 52, 57-58; 106 S.Ct. 366; 88 L.Ed.2d 203 (1985). Relevant here, a defense lawyer must properly advise a defendant regarding "whether his plea carries a risk of deportation." Padilla v Kentucky, 559 U.S. 356, 374; 130 S.Ct. 1473; 176 L.Ed.2d 284 (2010).
The majority concludes that, under Padilla, trial counsel's performance was not deficient. The majority reasons that because determining whether AWIGBH will result in mandatory deportation is not straightforward and clear, trial counsel only had to advise defendant there may be adverse immigration consequences, which he did. I respectfully disagree. I believe it is "truly clear" that a conviction for AWIGBH would result in mandatory deportation and, therefore, trial counsel had to so advise defendant. I also believe trial counsel was obligated to consult with an immigration attorney in this instance. But because the trial court made the fact-finding to which deference is given that defendant had an immigration attorney, I conclude that failure of trial counsel to himself consult an immigration attorney, and properly advise defendant of the near-certainty of deportation, did not ultimately prejudice defendant.
There is no doubt "[i]mmigration law can be complex," considering "it is a legal specialty of its own." Padilla, 559 U.S. at 369. Indeed, some criminal defense attorneys "may not be well versed in" immigration law, and there may "be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain." Id. Thus, when the law regarding deportation consequences "is not succinct and straightforward," a criminal defense attorney advising a defendant about the advantages and disadvantages of accepting a plea agreement "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. (emphasis added). "[W]hen the deportation consequence is truly clear," however, "the duty to give correct advice is equally clear," and the attorney must advise the defendant that a guilty plea will almost certainly result in deportation. Id.
Accordingly, the question is whether it is "truly clear" that AWIGBH is a "crime of violence" under 18 USC 16(a) and, therefore, constitutes an "aggravated felony" under 8 USC 1101(a)(43)(F) for purposes of determining whether defendant was subject to automatic deportation after conviction. I believe that a plain reading of 18 USC 16(a) would have led trial counsel to the conclusion that AWIGBH is an aggravated felony mandating deportation. Thus, trial counsel's advice that defendant "may" face immigration consequences was deficient.
Under 8 USC 1227(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 USC 1101 et seq., "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." An "aggravated felony" is a "crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year[.]" 8 USC 1101(a)(43)(F) (footnote omitted). Thus, to constitute an aggravated felony, a crime must (1) have a term of imprisonment of at least one year and (2) be a crime of violence. Id. "Crime of violence" is defined by 18 USC 16(a) as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another . . . ." I believe it is "truly clear" that defendant's conviction for AWIGBH qualifies as an aggravated felony requiring mandatory deportation.
There is no question defendant's conviction for AWIGBH satisfies the "term of imprisonment" requirement in 8 USC 1101(a)(43)(F). In Shaya v Holder, 586 F.3d 401, 403 (CA 6, 2009), the United States Court of Appeals for the Sixth Circuit held that "for the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually served by the petitioner rather than by the maximum statutory sentence." Accordingly, the Shaya Court held, "when using Michigan indeterminate sentences as the predicate for classifying someone as an 'aggravated felon', the term must be measured by the sentence actually served or the minimum sentence given, whichever is greater . . . ." Id. Defendant was sentenced to a minimum of five years' imprisonment for his AWIGBH conviction. This is clearly a sentence of "at least one year." Accordingly, 8 USC 1101(a)(43)(F) is satisfied.
The only remaining question is whether AWIGBH qualifies as a "crime of violence" under 18 USC 16(a). The elements of AWIGBH are "(1) an assault, i.e., 'an attempt or offer with force and violence to do corporal hurt to another' coupled with (2) a specific intent to do great bodily harm less than murder." People v Bailey, 451 Mich. 657, 668-669; 549 N.W.2d 325 (1996), quoting People v Smith, 217 Mich. 669, 673; 187 N.W.2d 304 (1922); see also People v Russell, 297 Mich.App. 707, 721; 825 N.W.2d 623 (2012) (stating the same). The relevant inquiry then is whether "an assault, i.e., 'an attempt or offer with force and violence to do corporal hurt to another, '" is clearly "the use, attempted use, or threatened use of physical force against the property or person of another." The elements of AWIGBH nearly mirror the elements of a "crime of violence." See Bailey, 451 Mich. at 668-669; 18 USC 16(a). As a result, I conclude that AWIGBH constitutes a "crime of violence" and, thus, given the five-year prison term, is an aggravated felony requiring deportation.
The majority says that "[t]o state the analysis" of determining whether AWIGBH will result in mandatory deportation "is to show its complexity." Respectfully, the majority overstates the difficulty of determining whether AWIGBH constitutes a "crime of violence" under 18 USC 16(a). A constitutionally-competent criminal defense attorney can certainly easily research the relevant state and federal statutes and caselaw, and ascertain their meaning. A criminal defense attorney is expected to conduct basic research regarding the issues in a client's case. See Hinton v Alabama, 571 U.S. 263, 274; 134 S.Ct. 1081; 188 L.Ed.2d 1 (2014) ("An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under [Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984)]."). By the time of defendant's plea in 2017- seven years after Padilla was decided-trial counsel should have been aware of that decision's pronouncement and familiarized himself with not only Padilla, but the relevant statutory provisions discussed therein, including 8 USC 1101(a)(43)(F) as discussed in Justice Alito's concurring opinion. Thus, although this case may not be as straightforward as Padilla, it nonetheless does not appear to me particularly burdensome in this instance for an attorney to determine whether AWIGBH constitutes a "crime of violence" under 18 USC 16(a) whether through independent research or consultation with immigration counsel.
The majority also references several provisions in the INA as supporting its conclusion that determining whether AWIGBH constitutes an aggravated felony is "not succinct and straightforward." Padilla, 559 U.S. at 369. I believe, however, that after Padilla, all reasonable criminal defense counsel should have a working knowledge of these statutory provisions. That is, I believe that all criminal defense attorneys should have read Padilla and familiarized themselves with provisions of the INA that could be particularly relevant in cases involving an alien. Such conduct is not unreasonable to expect of a constitutionally-competent criminal defense attorney.
Because I conclude that it is "truly clear" that AWIGBH constitutes a "crime of violence" under 18 USC 16(a), and defendant received a sentence of "at least one year" for his AWIGBH conviction, I believe trial counsel was required to advise defendant that his conviction would certainly result in his deportation. Padilla, 559 U.S. at 369. Accordingly, trial counsel's advice, that defendant "may" face deportation, was deficient.
I also believe trial counsel was obligated to consult an immigration attorney regarding defendant's charges and potential immigration consequences. Trial counsel admitted at the Ginther hearing that he was "not an immigration attorney." Under an objective standard of reasonableness, an attorney lacking knowledge of a particular practice area relevant to a client's case would certainly consult an attorney with knowledge of that practice area. Indeed, even if trial counsel's duty was to "do no more than" advise defendant that his pending criminal charges may have adverse immigration consequences, Padilla, 559 U.S. at 369, to do so he must have at least some basic understanding of immigration law. Such an understanding could easily be obtained by consulting an immigration attorney. And it would not have been particularly burdensome in this case given defendant's statements to trial counsel that he and his family were working with an immigration attorney. That is, trial counsel here had a readily-available immigration attorney he could have consulted. Because I believe that to properly advise a criminal defendant regarding immigration consequences, even if only possible consequences, a criminal defense attorney lacking knowledge of immigration law should consult an immigration attorney, failure to do so constitutes deficient performance.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
Although I believe trial counsel performed deficiently by failing to consult an immigration attorney and because a plain reading of 18 USC 16(a) makes clear that AWIGBH is an aggravated felony, defendant has failed to establish he was prejudiced by that deficient performance. To show prejudice in the guilty-plea context, a defendant "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and instead would have insisted on going to trial." Hill, 474 U.S. at 59. "[T]o obtain relief on this type of claim, a [defendant] must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372.
At the Ginther hearing, trial counsel testified that defendant brought up that his family was consulting with an immigration attorney and that he had "independent knowledge that his family was, or had, consulted with an immigration attorney." Trial counsel also indicated it was his "belief that [defendant's] family was taking care of the deportation" issue. The trial court made the following findings:
In this particular case, Mr. Alonso came to [trial counsel], apparently through-what appears to be through-another attorney. There was an immigration lawyer already involved because of a prior conviction so [trial counsel] came into this understanding, reasonably so or inferring reasonably so, that there was an immigration attorney already involved. Mr. Alonso told him there was an immigration attorney already involved. Mr. Alonso talked to [trial counsel] about the immigration consequences. [Trial counsel] testified that he told Mr. Alonso there will be consequences. He indicated he didn't know what the consequences
would be, whether it would be deportation or not, but he made it clear to Mr. Alonso that there will be consequences.
I believe the trial court's finding, that an immigration attorney was already involved in the case because of a prior conviction, removed any prejudice trial counsel's deficient performance may have caused. Despite the fact defendant and his family had access to, and were consulting with, an immigration attorney, defendant still decided to plead guilty. Thus, defendant has failed to show that, but for trial counsel's failure to himself consult an immigration attorney and accurately advise defendant regarding the deportation consequences, there is a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. Accordingly, because the trial court made a finding of fact based on the testimony that defendant had immigration counsel, the failure of trial counsel to himself consult or properly advise regarding deportation consequences did not ultimately prejudice defendant.
In conclusion, I believe that trial counsel's failure to consult an immigration attorney and advise defendant that a conviction for AWIGBH would certainly result in mandatory deportation constituted deficient performance. In my view, a plain reading of 18 USC 16(a) would have led trial counsel to the conclusion that AWIGBH is an aggravated felony mandating deportation, and trial counsel should have consulted an immigration attorney. Even so, the trial court's finding that defendant had an immigration attorney removed any prejudice trial counsel's deficient performance may have caused. Thus, I agree with the decision to affirm the trial court's denial of defendant's motion to withdraw his guilty plea on the basis of ineffective assistance of counsel.