State v. Paredes

2018 UT App 45
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R EYNALDO P AREDES,
Appellant.
Opinion
No. 20160508-CA
Filed March 22, 2018
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 151901382
German T. Flores, Attorney for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES D AVID N. M ORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN, Judge:
¶1 	Defendant 	Reynaldo 	Paredes, 	a 	lawful 	permanent
resident of the United States, appeals from the district court’s
denial of his motion to withdraw his guilty plea. According to
Defendant, his counsel had not adequately informed him of the
immigration consequences of entering that plea, thereby failing
to provide him with effective representation. The district court
denied the withdrawal motion after finding that Defendant had
been adequately informed. We conclude that Defendant has not
demonstrated that the district court clearly erred or otherwise
abused its discretion in denying his withdrawal motion. We
therefore affirm.

State v. Paredes
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BACKGROUND
¶2 	In 2015, a 23-year-old woman reported to police that
Defendant had grabbed her breasts both over and under her
clothing and then exposed his penis to her. This incident was
witnessed by the woman’s 12-year-old cousin. Defendant was
arrested and charged with forcible sexual abuse, a second-degree
felony; lewdness, a class B misdemeanor; and intoxication, a
class C misdemeanor. Defendant admitted he had consumed
alcohol that day, but he denied exposing himself to the woman
and claimed that the touching was consensual.
¶3 	Defendant and the State agreed that he would plead
guilty to attempted forcible sexual abuse, a third-degree felony,
in exchange for the dismissal of the other charges. A plea
agreement 	form 	was 	prepared, 	which 	included 	a 	clause
pertaining to immigration:
DEPORTATION /I MMIGRATION: I understand that if I
am not a United States citizen, my plea(s) today
may, or even will, subject me to deportation under
United States immigration laws and regulations, or
otherwise adversely affect my immigration status,
which may include permanently barring my re-
entry into the United States. I understand that if I
have questions about the effect of my plea on my
immigration 	status, 	I 	should 	consult 	with 	an
immigration attorney.
The immigration clause, like the other sections of the plea
agreement, was immediately followed by a Spanish translation
in bold text.
¶4 	Because 	Defendant 	spoke 	Spanish, 	a 	court-certified
interpreter was utilized during the plea hearing. The district
court asked Defendant if he had read through, reviewed, and
understood the plea agreement:

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20160508-CA 	3 	2018 UT App 45
THE JUDGE: Mr. Paredes, did you review that plea
agreement? Did you read through that document?
THE DEFENDANT: Si.
INTERPRETER: Yes.
[Defendant’s attorney]: And it’s, this is written in
Spanish language, his native language.
THE 	JUDGE: 	Thank 	you. 	Did 	you 	understand
everything in that document?
THE DEFENDANT: Si.
INTERPRETER: Yes.
Defendant then signed the plea agreement. After finding that
Defendant’s guilty plea was knowing and voluntary, the court
accepted the plea and dismissed the other charges.
¶5 	Prior to sentencing, and through new counsel, Defendant
moved to withdraw his guilty plea. He claimed that his previous
counsel had not advised him that he could be deported due to
his guilty plea. Defendant asserted in an affidavit filed with his
motion that, had he known he “would automatically be removed
from my family and be deported without the ability to lawfully
return to the United States,” he “would not have entered [a]
guilty plea” and would have instead allowed his case to proceed
to trial.
¶6 	The 	State 	filed 	a 	memorandum 	in 	opposition 	to 	the
withdrawal motion, and Defendant’s new counsel filed a reply
to the opposition. In the reply memorandum, Defendant’s new
counsel claimed for the first time that Defendant was illiterate
and had therefore been totally reliant on his prior counsel to
explain the plea agreement to him. Attached to the reply brief
was an affidavit from Defendant’s sister in which she claimed
“personal knowledge that [Defendant] is not literate because he
did not attend regular school as a child.”
¶7 	After 	oral 	arguments, 	the 	district 	court 	denied
Defendant’s motion to withdraw his plea. The court ruled that

State v. Paredes
20160508-CA 	4 	2018 UT App 45
the language in the written plea agreement adequately informed
Defendant of the risk of deportation, that Defendant “knowingly
and voluntarily entered the plea agreement,” and that the plea
colloquy “was in accordance with the provisions of Rule 11 of
the Utah Rules of Criminal Procedure.” The court also struck
Defendant’s 	sister’s 	affidavit, 	stating 	it 	was 	“contrary 	to
[Defendant’s] representations at the time he signed the plea
agreement 	and . . . nonresponsive 	to 	the 	state’s 	opposition
memorandum.”
ISSUE AND STANDARD OF REVIEW
¶8 	On appeal, Defendant contends that the district court
erred in denying his motion to withdraw the guilty plea. “We
review the district court’s denial of a motion to withdraw a
guilty plea for abuse of discretion[.]” State v. Stolfus, 2014 UT
App 65, ¶ 2, 322 P.3d 1190 (citation and internal quotation marks
omitted). We “will disturb the findings of fact made by the
district court in resolving that motion to withdraw a guilty plea
only if they are clearly erroneous.” Id. (citation and internal
quotation marks omitted).
ANALYSIS
¶9 	As with all critical stages of trial, a criminal defendant is
entitled to “the effective assistance of competent counsel” before
making the momentous decision to plead guilty. See Padilla v.
Kentucky, 559 U.S. 356, 364, 366 (2010) (citation and internal
quotation 	marks 	omitted). 	To 	demonstrate 	that 	counsel’s
assistance was constitutionally ineffective, a defendant must
satisfy the two-part test set forth in Strickland v. Washington; i.e.,
the defendant must show that “counsel’s representation fell
below 	an 	objective 	standard 	of 	reasonableness,” 	id. 	at 	366
(citation and internal quotation marks omitted), and that the
defendant 	suffered 	resulting 	prejudice, 	id. 	at 	369. 	See 	also

State v. Paredes
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Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687 	(1984); 	State 	v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
¶10 	“It is quintessentially the duty of counsel to provide [a
defendant] with available advice about an issue like deportation
and the failure to do so clearly satisfies the first prong of the
Strickland analysis.” Padilla, 559 U.S. at 371 (citation and internal
quotation marks omitted). But even if a defendant can show that
counsel failed to provide such advice, the defendant must still
show resulting prejudice. Id. at 372.
¶11 	Here, Defendant asserts that, because he 	is allegedly
illiterate, he relied entirely on the advice given to him by counsel
and 	that 	counsel 	failed 	to 	inform 	him 	of 	the 	immigration
consequences associated with pleading guilty to a felony charge.
Defendant argues that counsel’s failure to “advise him of the
immigration 	consequences—including 	the 	real 	risk 	of
deportation—of his guilty plea constitutes ineffective assistance
of 	counsel 	because 	it 	falls 	below 	an 	objective 	standard 	of
reasonable 	professional 	behavior 	for 	any 	criminal 	defense
attorney.”
¶12 	The State responds that Defendant has “failed to prove
either deficient performance or prejudice from counsel’s advice
in the plea process.” The State notes that Defendant signed a
plea 	agreement which 	advised 	him 	that 	deportation 	was a
possible consequence of pleading guily. The State points out that
the immigration clause in Defendant’s plea agreement used the
same language as the plea agreement at issue in Ramirez-Gil v.
State, 2014 UT App 122, 327 P.3d 1228. In Ramirez-Gil, this court
held that the written plea agreement clearly communicated the
immigration risks of a guilty plea for a non-citizen and that, by
signing 	it, 	the 	defendant 	had 	confirmed 	that 	counsel 	had
reviewed the agreement with him. Id. ¶¶ 9–10. On this same
basis, the State argues that Defendant has failed to demonstrate
deficient performance because he too signed a plea agreement

State v. Paredes
20160508-CA 	6 	2018 UT App 45
that clearly communicated the immigration risks of pleading
guilty.
¶13 	We 	note that 	the basis for 	Defendant’s challenge 	on
appeal is his alleged illiteracy. He asserts that he was unable to
read the plea agreement himself and that his counsel failed to
otherwise inform him of the immigration risks. Thus, in his
view, we should afford little weight to his signature on the plea
agreement because he did not understand the contents of that
plea agreement.1
¶14 	But this argument runs headlong into the district court’s
findings regarding Defendant’s “alleged lack of understanding
of the plea agreement or potential immigration consequences.”
Specifically, 	the 	court 	found 	that 	Defendant 	had 	verbally
informed the court that he had read through the agreement
containing 	the 	immigration 	clause 	and 	had 	understood
everything contained in it. In making this finding, the court
noted that there was nothing in the record up to the point of the
plea 	hearing 	“that 	indicated 	[Defendant] 	was 	illiterate” 	or
1. Defendant does not argue that a written plea agreement form
is insufficient to fulfill counsel’s Padilla obligations. See Padilla v.
Kentucky, 559 U.S. 356, 369 (2010) (explaining that counsel has no
duty beyond ensuring that his or her “noncitizen client [knows]
that pending criminal charges may carry a risk of adverse
immigration consequences”). We therefore do not express an
opinion as to whether counsel has an independent duty to
inform his or her client of likely immigration consequences when
the client has already been informed of the existence of such
consequences through a written plea agreement confirmed on
the record in open court. But see Ramirez-Gil v. State, 2014 UT
App 122, ¶¶ 9–10, 327 P.3d 1228 (intimating that a written plea
agreement with an identical immigration-consequences clause
satisfied counsel’s Padilla burden).

State v. Paredes
20160508-CA 	7 	2018 UT App 45
otherwise 	“unable 	to 	either 	read 	or 	understand” 	the
proceedings. The court reviewed the audio record of the plea
hearing and found that Defendant’s answers “were tendered
without hesitation,” and that he did not demonstrate “confusion,
hesitation, or frustration regarding the plea.” The court further
found that Defendant’s answers regarding his understanding of
the plea agreement were “clear, unequivocal, and appropriate.”
¶15 	On appeal, Defendant maintains that he cannot read and
therefore could not have understood the written plea agreement.
But he does not explain why we should set aside the district
court’s findings to the contrary. See State v. Stolfus, 2014 UT App
65, ¶ 2, 322 P.3d 1190 (explaining that a district court’s findings
made in resolving a motion to withdraw a guilty plea may only
be set aside if clearly erroneous). Nor is there any obvious basis
for doing so, especially where Defendant’s own affidavit lacks
any 	mention 	of 	illiteracy 	and 	Defendant 	raised 	a 	claim 	of
illiteracy through his sister and only in his reply to the State’s
opposition to his withdrawal motion. Moreover, Defendant did
not raise his alleged illiteracy when asked in open court whether
he had read the plea statement. See supra ¶ 4. We therefore
accept the district court’s finding that Defendant’s claim of
illiteracy is “contrary to [his] representations at the time he
signed the plea agreement and entered his plea.” And because
we are bound by the district court’s finding that Defendant had
not proven his illiteracy, we presume the validity of Defendant’s
statement 	to 	the 	district 	court 	that 	he 	had 	read 	the 	plea
agreement.
¶16 	We 	next 	consider 	whether 	the 	plea 	agreement
appropriately 	conveyed 	to 	Defendant 	the 	immigration
consequences of his plea. In Ramirez-Gil, this court considered an
immigration-consequences clause with the same wording as the
one in the plea agreement Defendant reviewed and signed. See v.
Ramirez-Gil, 2014 UT App 122, ¶ 9. The petitioner argued that the
written plea agreement had not adequately informed him of the

State v. Paredes
20160508-CA 	8 	2018 UT App 45
possible immigration consequences of pleading guilty. Id. We
held that, “[b]etween the statements in the written plea form
explaining the deportation consequences of Petitioner’s plea and
Petitioner’s signature on that form confirming that trial counsel
reviewed the plea with him, Petitioner cannot demonstrate that
counsel performed deficiently by failing to advise him that his
plea could affect his immigration status.” Id. ¶ 10. It follows that,
because 	the 	clause 	was 	adequate 	to 	communicate 	the
consequences to the petition in Ramirez-Gil, it was likewise
adequate to communicate the same consequences to Defendant.
¶17 	Before signing the agreement, which was written in both
English and Spanish, Defendant assured the district court that he
had read it and understood everything in it. This assurance
necessarily encompassed the immigration-consequences clause,
and the wording of that clause has previously been upheld as
adequate. Defendant’s affirmative answers to the court and his
signature on the plea agreement therefore demonstrate that he
was informed of the immigration consequences of pleading
guilty. See id. ¶¶ 9–10. And because Defendant has not shown
that he lacked actual knowledge of the possible immigration
consequences, 	he 	cannot 	show 	prejudice 	resulting 	from 	his
counsel’s 	failure2 	to 	separately 	advise 	him 	of 	those
consequences. See Padilla, 559 U.S. at 364, 366, 369.
¶18 	Defendant 	has 	not 	demonstrated 	that 	he 	lacked
knowledge of the immigration consequences of his guilty plea at
the time he entered it. We therefore conclude that the district
court 	did 	not 	abuse 	its 	discretion 	by 	denying 	Defendant’s
motion to withdraw the plea.
¶19 	Affirmed.
2. See supra ¶ 13 note 1.