State v. Gudiel

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NOT DESIGNATED FOR PUBLICATION

No. 117,001

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRISTIAN V. GUDIEL,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed October 13,
2017. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Adam Sokoloff, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and GREEN, JJ.

PER CURIAM: When a defendant seeks to withdraw a guilty plea after sentencing,
he or she must establish that such action is necessary to prevent a manifest injustice.
K.S.A. 2016 Supp. 22-3210(d)(2). Ineffective or deficient performance of counsel may
give rise to a finding of manifest injustice if the defendant is able to show that trial
counsel's performance fell below the objective standard of reasonableness and there is a
reasonable probability that but for trial counsel's errors, the result of the proceeding
would have been different. State v. Bricker, 292 Kan. 239, 245-46, 252 P.3d 118 (2011).
Cristian Gudiel appeals the district court's order denying his motion to withdraw his
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guilty plea based upon his lack of awareness of the possible immigration consequences
for his conviction. The district court denied Gudiel's motion. On appeal, Gudiel maintains
that if allowed to withdraw his guilty plea he will reenter a guilty plea and seek a
downward durational departure sentence which, if granted, may result in more favorable
consideration by immigration authorities. Because we find that Gudiel's counsel was not
ineffective for failure to inquire regarding his immigration status and, moreover, even if
he was, Gudiel has not met his burden to show that there is a reasonable probability that
but for counsel's errors the result would be different, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Gudiel pled guilty as charged to one count of aggravated assault and was
sentenced to a 13-month prison term and 12 months' postrelease supervision. See K.S.A.
2016 Supp. 21-5412(b)(1). He was given credit for time served and later released from
the Kansas Department of Corrections. After his release, Gudiel was taken into custody
by immigration authorities. Gudiel filed a timely motion to set aside his guilty plea
because he had not been adequately advised regarding possible immigration
consequences of his guilty plea. The district court held a hearing to determine if a
postconviction withdrawal of plea was warranted.

At the hearing it was undisputed that Gudiel was from Guatemala and had been
living in the United States since he was seven years old. At the time of his plea Gudiel
was 29 years old. Prior to his guilty plea, Gudiel and his counsel had not discussed
Gudiel's immigration status or the possible immigration consequences of a guilty plea.
Further, possible immigration consequences were not mentioned in the petition to enter a
plea of guilty or at the plea hearing. It appears that the plea petition was an older version
that did not contain language mentioning immigration concerns. Gudiel also maintained
that he would have pled guilty as charged even knowing the possible immigration
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consequences but that he would have argued for a departure sentence to obtain a sentence
less than the minimum 12 months.

The district court denied Gudiel's motion. The court found that Gudiel's counsel
was not ineffective. Further, it found that Gudiel was not prejudiced due to his desire to
enter a plea of guilty regardless of the consequences on his immigration status. Finally,
the district court found it unlikely that a "'more creative plea'" was reasonably foreseeable
under the circumstances of the case. Therefore, the district court order denied the motion
to set aside plea, and Gudiel timely appeals from that order.

ANALYSIS

Gudiel argues that his trial counsel was ineffective by failing to inquire into
Gudiel's immigration status, failing to properly inform Gudiel of possible immigration
consequences to his plea, and that counsel's failure to do so was prejudicial to Gudiel.

Our standard of review is abuse of discretion.

The court's standard of review of a denial of postsentencing motion to withdraw
plea is abuse of discretion. State v. Morris, 298 Kan. 1091, 1100, 319 P.3d 539 (2014). A
judicial action constitutes an abuse of discretion if (1) no reasonable person would have
taken the view adopted by the trial court; (2) if the judicial action is based on an error of
law; or (3) if the judicial action is based on an error of fact. State v. Marshall, 303 Kan.
438, 445, 362 P.3d 587 (2015).

A claim of ineffective assistance of trial counsel is a mixed question of law and
fact requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089
(2011).

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Gudiel may withdraw his plea if he is able to establish manifest injustice.

When a defendant seeks to withdraw a guilty plea after sentencing, he or she must
establish that such action is necessary to prevent manifest injustice. K.S.A. 2016 Supp.
22-3210(d)(2). To find manifest injustice, Kansas courts review at least three factors:
"'(1) whether the defendant was represented by competent counsel; (2) whether the
defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3)
whether the plea was fairly and understandingly made.'" Morris, 298 Kan. at 1100-01.
Gudiel argues that his trial counsel's failure to inform him of possible immigration
consequences of a guilty plea made his representation ineffective.

To show manifest injustice due to ineffective assistance of counsel Gudiel must
meet the constitutional standards set out in Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Bricker, 292 Kan. at 245-46. Gudiel must
show, by a preponderance of the evidence, that: (1) trial counsel's performance fell below
the objective standard of reasonableness and (2) there is a reasonable probability that, but
for trial counsel's errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687; Bricker, 292 Kan. at 245-46.

Counsel's performance did not fall below the objective standard of reasonableness.

Under the first prong, Gudiel must show that trial counsel's performance was
below the objective standard of reasonableness. Gudiel primarily relies on Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), to show that trial
counsel was ineffective by failing to inquire into Gudiel's immigration status. Padilla
links the standard of reasonableness to the practice and expectations of the legal
community. The Court in Padilla noted that prevailing norms require counsel to inform
clients about the risk of deportation. 559 U.S. at 367. However, the situation in Padilla is
different than here. Padilla was facing mandatory deportation. Padilla's counsel knew
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Padilla was not a citizen of the United States and incorrectly advised Padilla that he
would not need to worry about deportation. Under those circumstances, the Court found
that Padilla's counsel was constitutionally ineffective. 559 U.S. at 359-60.

There does not appear to be a published opinion, post-Padilla, from the United
States Supreme Court, Kansas Supreme Court, or Kansas Court of Appeals regarding
whether counsel is required to inquire about the immigration status of a client. In State v.
Muriithi, 273 Kan. 952, 960-61, 46 P.3d 1145 (2002), superseded by Padilla, 559 U.S.
356, the court found that when counsel did not know or have reason to know that the
client was an alien there was no duty to investigate the client's immigration status. While
Muriithi was largely superseded by Padilla, this court has stated that the test in Muriithi
is still applicable to determine whether counsel was ineffective. State v. Limarco, No.
101,506, 2010 WL 3211674, at *5 (Kan. App. 2010) (unpublished opinion).

This court has addressed the issue in a number of unpublished opinions. In State v.
Rodriguez, No. 108,505, 2014 WL 1096553, at *10-12 (Kan. App. 2014) (unpublished
opinion), this court used the Muriithi test to determine whether counsel has a duty to
inquire into the immigration status of a client. Rodriguez pled no contest to one count of
abuse of a child. He filed several motions to withdraw his plea, including one which
alleged that his trial counsel did not inform him of the immigration consequences of his
plea. This court applied the Muriithi test and found that Rodriguez' trial counsel did not
know or have reason to know that Rodriguez was an undocumented alien prior to the
entry of the no contest plea. The court held that an attorney has no duty to discuss the
immigration consequences of a plea under Padilla when the attorney has no reason to
know his or her client is an undocumented alien. Therefore, Rodriguez failed to show that
manifest injustice existed, requiring the district court to grant his motion to withdraw his
plea under K.S.A. 2013 Supp. 22-3210(d)(2). Rodriguez, 2014 WL 1096553, at *11.

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This court has also addressed a similar situation in the context of a K.S.A. 60-1507
motion. In Hernandez v. State, No. 107,069, 2013 WL 2395302 (Kan. App. 2013)
(unpublished opinion), Hernandez was facing immigration consequences after pleading
guilty to distribution of cocaine. Hernandez was approximately 33 years old at the time of
the hearing and had been living in the United States for about 25 years. Hernandez spoke
fluent English and had been represented by his counsel in a number of other matters.
Hernandez had not told his attorney that he was a resident alien, and his counsel assumed
Hernandez was a citizen. In the court's analysis of whether Hernandez' counsel was
ineffective it found that the record indicated that Hernandez' counsel had no reason to
presume that Hernandez was not a citizen. The court stated:

"[W]e are not prepared to say that a criminal defense lawyer has an obligation to ask a
client about his or her immigration status or citizenship simply because the person has a
recognizably ethnic name or a Hispanic name. Nor are we prepared to say a lawyer must
ask every client about his or her immigration status or citizenship." 2013 WL 2395302, at
*3.

The court went on to assume without deciding that counsel had a duty to inquire about
Hernandez' immigration status and discuss possible immigration issues that would result
as part of the plea. The court ultimately reached its decision on the prejudice prong of the
competency of counsel test, finding that Hernandez was not prejudiced. 2013 WL
2395302, at *3-4.

The district court in this case also relied on State v. Stephens, 46 Kan. App. 2d
853, 265 P.3d 574 (2011). Stephens attempted to withdraw his plea claiming that his
counsel was ineffective because his counsel told him that he had only two prior
misdemeanor convictions and would receive probation at sentencing. Stephens had
additional undisclosed misdemeanors in Colorado, which increased his criminal history
score. Stephens' counsel testified that he had relied on information provided to him by
Stephens regarding prior convictions when advising Stephens. On appeal this court
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upheld the denial of the motion to withdraw the plea stating that Padilla did not require
attorneys to ignore their client's statements regarding past crimes and to conduct an
independent investigation. Further, the court stated that Padilla did not require counsel to
investigate the citizenship or immigration status of every client in a criminal case.
Stephens, 46 Kan. App. 2d at 856.

In this case Gudiel's counsel had no knowledge that Gudiel was not a United
States citizen. Gudiel had lived in the United States since he was seven years old. At the
time of his plea and sentencing Gudiel was 29 years old. Accordingly, he had been living
in the United States for at least 21 years. Gudiel did not tell his counsel that he was from
Guatemala. The presentence investigation report indicates that Gudiel is a United States
citizen and has a social security number. It appears that the only indication that Gudiel's
counsel had of a possible immigration issue was Gudiel's name and the fact that he is
Hispanic. Gudiel's trial counsel acknowledged that he should have mentioned
immigration consequences when he had a Hispanic client and that it should have also
been in the plea petition. In the hearing on Gudiel's motion the State indicates that
Gudiel's financial affidavit for appointment of counsel provides no clues that Gudiel was
a noncitizen; however, it does not appear that the affidavit has been made a part of the
record on appeal. Based on the record provided it does not appear that Gudiel's counsel
knew or should have known that Gudiel was a noncitizen.

Based on the current state of the law, if Gudiel's counsel did not know or should
not have known that Gudiel was a noncitizen, counsel was not constitutionally ineffective
in failing to advise Gudiel of possible immigration consequences.




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There is not a reasonable probability that but for trial counsel's errors, the result of the
proceeding would have been different.

Even if we assume, without deciding, that Gudiel's counsel was ineffective for not
asking about his immigration status, our analysis does not end. In order to find counsel
constitutionally ineffective, the court must also find that the defendant was prejudiced by
counsel's claimed ineffectiveness. To show prejudice the defendant must show a
"'reasonable probability that but for [counsel's] errors, the result of the proceeding would
have been different.'" Morris, 298 Kan. at 1103 (quoting Bricker, 292 Kan. at 245-46).
"'A "reasonable probability" is a probability sufficient to undermine confidence in the
outcome.'" Morris, 298 Kan. at 1103; Bricker, 292 Kan. at 245-46.

In Rodriguez, the court stated that even had counsel been ineffective, Rodriguez
had not shown the required prejudice to warrant reversal. 2014 WL 1096553, at *11.
Rodriguez testified that had he known about the immigration consequences of his plea he
would have taken the case to trial. However, the district court did not believe Rodriguez'
claim. This court reasoned that it was not in a position to second-guess Rodriguez'
credibility. Therefore, this court found that Rodriguez had failed to show ineffective
counsel and manifest injustice and affirmed the district court. 2014 WL 1096553, at *11.

In Hernandez, the court assumed without deciding that counsel had a duty to ask
about Hernandez' immigration status and discuss possible ramifications of the plea. This
court found that Hernandez failed to show prejudice. 2013 WL 2395302, at *3. Counsel
learned about Hernandez' status as a noncitizen after the plea hearing and discussed the
implications of asking to set aside the plea with Hernandez. Hernandez indicated that he
would continue with the plea and deal with immigration issues as they arose. In his
K.S.A. 60-1507 proceedings, Hernandez did not assert that he would have gone to trial on
the original charges or that he had a defense that could have led to acquittal. Therefore,
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this court found that Hernandez failed to show the required prejudice and affirmed the
district court decision. 2013 WL 2395302, at *3-4.

In contrast, in State v. Ramos-Mejia, No. 109,250, 2014 WL 278778, at *5 (Kan.
App. 2014) (unpublished opinion), this court found that Ramos-Mejia showed the
required prejudice. Ramos-Mejia pled no contest to misdemeanor battery and attempted
aggravated assault on a law enforcement officer with a deadly weapon, a felony. Prior to
his plea his trial counsel informed him that his plea could impact his immigration status.
See Ramos-Mejia, 2014 WL 278778, at *2. Ramos-Mejia was sentenced and later moved
to withdraw his plea, alleging that his trial attorney had not properly advised him of the
impact the plea would have on his immigration status. The district court denied the
motion, and Ramos-Mejia appealed. This court found that Ramos-Mejia's trial counsel's
performance fell below the objective standard of reasonableness when she incorrectly
explained the risk of deportation. This court then found that Ramos-Mejia was prejudiced
because Ramos-Mejia indicated that had he known of the deportation consequences he
would not have entered the plea. Ramos-Mejia could have gone to trial, or as this court
considered, entered into a "more creatively structured plea" which could reduce the
likelihood of deportation. Ramos-Mejia, 2014 WL 278778, at *5. Therefore, this court
reversed the district court's denial of Ramos-Mejia's motion to withdraw his plea.

In this case Gudiel's counsel indicated that even had Gudiel known of the possible
immigration consequences, he still would have accepted responsibility for his actions and
pled guilty as charged. He then would have asked for a downward durational departure
from 13 months to 11 months and 29 days, so as not to have his conviction classified by
federal immigration authorities as an aggravated felony, subjecting him to deportation
under federal immigration law. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012); 8 U.S.C. §
1101(a)(43)(F) (2012) (aggravated felony is a crime of violence with a term of
imprisonment of at least one year). Gudiel agreed with his counsel's statement. The
district court in its order stated that a creative plea was not reasonably foreseeable under
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the facts of this case. The court did say that it was not impossible that a different plea
agreement could have been reached, but it found that a different plea agreement was
unlikely.

We first believe it is important to note that the same judge heard Gudiel's motion
to set aside his plea as accepted his guilty plea and sentenced him. So the judge was
familiar with the facts of the crime and the criminal history of Gudiel. Gudiel was a
criminal history H and committed a severity level 7 person felony crime. This placed him
in a presumptive probation sentencing box under the revised Kansas Sentencing
Guidelines Act. K.S.A 2016 Supp. 21-6804. He faced a maximum presumptive sentence
of 14 months, a standard sentence of 13 months, and a mitigated sentence of 12 months.
However, there was a special finding that a firearm was used in the commission of the
crime. This changed his sentence to presumptive prison. K.S.A. 2016 Supp. 21-6804(h).
The statute does allow the court to order probation when a firearm is used if it makes
certain findings under K.S.A. 2016 Supp. 21-6804(q) (treatment program appropriate and
available or community safety interests will be served by promoting offender
reformation). In this case, Gudiel asked the judge to impose probation. The judge refused,
finding that the circumstances of the case—Gudiel pointed a gun at a random victim who
had three small children in the car—did not warrant it. The same judge that made those
findings, found that, in essence, a lesser sentence would not be "reasonably foreseeable
under the facts of this case."

Moreover, for the court to impose a sentence of less than 12 months the court
would have to find substantial and compelling reasons to impose a downward durational
departure from Gudiel's presumptive sentence. K.S.A. 2016 Supp. 21-6815(a). Although
not addressed in any Kansas appellate decision, it is unlikely that an attempt to avoid
federal immigration law would be a valid basis for a downward durational departure. See
State v. Peter, 825 N.W.2d 126, 131 (Minn. App. 2012) (rejected downward durational
departure to avoid federal deportation policies).
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In sum, Gudiel must show by a preponderance of the evidence that he was
prejudiced by his attorney's failure to advise him that his sentence may cause his
deportation under federal immigration law. Under the facts of this case, given
(1) Gudiel's insistence that he would not have sought a trial and still pled guilty as
charged; (2) the comments by the judge at the time of his sentencing indicating that
probation was not appropriate; and (3) the fact that the sentencing judge indicated he did
not believe that a lesser sentence would be "reasonably foreseeable under the facts of this
case," Gudiel fails to show the required prejudice.

Because Gudiel's counsel was not ineffective, and even if he was, Gudiel has not
established prejudice, the district court did not abuse its discretion in denying Gudiel's
motion to withdraw his plea.

Affirmed.