District Court, Provo Department The Honorable James R.
Taylor No. 171403749.
Ishola and Mari Alvarado Tsosie, Attorneys for Appellant.
D. Reyes and Mark C. Field, Attorneys for Appellee.
Diana Hagen authored this Opinion, in which Judges Kate
Appleby and Ryan M. Harris concurred. HAGEN, Judge:
Cheira Enriquez-Meza pled guilty to one count of possession
of a controlled substance with intent to distribute, a
second-degree felony, which carried the consequence of
deportation based on her non-citizen status in this country.
In exchange for her guilty plea, the State agreed to dismiss
the remaining charges against her and recommend five years of
court-supervised probation and no additional jail time.
Before accepting her guilty plea, the district court engaged
in a plea colloquy with Enriquez-Meza. Among other things,
the court asked her whether she had had enough time to
discuss with her counsel the State's burden of proof and
whether she was satisfied with counsel's advice on how to
proceed with the case. Enriquez-Meza responded in the
affirmative. The court explained the rights that she would be
waiving if she decided to plead guilty and the possible
punishments. Importantly, the court said, "If you're
not a citizen, this would affect your right to remain in the
country. Do you understand [that] consequence?"
Enriquez-Meza responded, "Yes." Enriquez-Meza pled
guilty and signed the written plea agreement, which also
included an explanation regarding the risk of deportation for
Prior to sentencing, Enriquez-Meza obtained new counsel and
moved to withdraw her guilty plea. Enriquez-Meza argued that
her guilty plea was not knowing and voluntary, because
(1) her counsel did not inform her of her risk of deportation
(2) she responded "yes" rather than
"guilty" when the court asked, "[H]ow do you
plead?" The court held a two-day evidentiary hearing to
address Enriquez-Meza's arguments. At the hearing,
Enriquez-Meza conceded that her plea counsel informed her of
the risk of deportation. Nonetheless, she maintained that
"she was not properly advised of immigration
consequences" because counsel did not "either
discuss strategies [Enriquez-Meza] might employ to avoid
deportation or seek independent counsel with an immigration
attorney for that purpose."
In its written ruling, the district court concluded that
Enriquez-Meza received constitutionally effective assistance
of counsel in connection with her guilty plea. The court
found that her counsel properly informed her of the risk of
deportation and that, under Padilla v. Kentucky, 559
U.S. 356 (2010), counsel is "not required . . . to
ensure that the client underst[ands] every possible
immigration strategy to avoid deportation." Instead,
Padilla requires only that the defendant understand
the risk of deportation. See id. at 374 (holding
that "counsel must inform her client whether his plea
carries a risk of deportation"). Moreover, even if
counsel's performance could be characterized as
deficient, the court found that Enriquez-Meza had
"failed to establish that the advice or delay to further
consult with an immigration counsel would have made a
difference" because she did not explain or demonstrate
"that the suggested strategies to contest
deportation" would have been successful. The court also
made a factual finding that Enriquez-Meza responded
"guilty" when asked for her plea. Although the
transcript recorded her response as "yes, " the
court found that this was a transcription error based on its
review of the audio recording of the change of plea hearing
and its contemporaneous notes. The court therefore denied
Enriquez-Meza's motion to withdraw her guilty plea.
Enriquez-Meza appeals the district court's denial of her
motion to withdraw her guilty plea, raising two arguments.
First, she argues that the court erred in determining that
her plea counsel did not perform deficiently when he
"affirmatively misled [her] to believe that she could
re-enter the United States within five years . . . and was
ineligible for other reliefs from deportation." To
challenge a guilty plea on appeal, a defendant must move to
withdraw the plea prior to sentencing. Utah Code Ann. §
77-13-6(2)(b) (LexisNexis 2017). If a defendant fails to meet
this statutory requirement, we are "foreclose[d]"
from reviewing the issue on direct appeal, even for plain
error, see State v. Rettig, 2017 UT 83, ¶¶
26, 47, 416 P.3d 520, and the defendant "shall"
instead pursue the claim under the Post-Conviction Remedies
Act, see Utah Code Ann. § 77-13-6(2)(c).
Recently, this court held that the plea withdrawal statute
also precludes review when a defendant timely moves to
withdraw the plea below but then appeals based on a different
legal theory. See Badikyan, 2018 UT App. 168, ¶
21, 436 P.3d 256, cert. granted, 436 P.3d 1247 (Utah
2019). In Badikyan, the defendant complied with the
jurisdictional requirement by moving to withdraw his guilty
plea prior to sentencing. But rather than "challenge the
district court's factual findings and legal
conclusions" on the ground he raised below, the
defendant "assert[ed] an entirely different ground [on
appeal] for why he should have been allowed to withdraw his
guilty plea." Id. As a result, the plea
withdrawal statute precluded this court from reviewing his
new argument on appeal, "even under the plain error
exception to preservation." Id.
Like the defendant in Badikyan, Enriquez-Meza timely
moved to withdraw her guilty plea before sentencing but based
that motion on a legal theory entirely different from that
raised on appeal. Specifically, Enriquez-Meza argued below
that counsel was ineffective in failing to advise her of the
risk of deportation and failing to consider every possible
strategy to avoid deportation, whereas on appeal she argues
that counsel "affirmatively misled [her] to believe that
she could re-enter the United States within five years . . .
and was ineligible for other reliefs from ...