Ramirez-Gil v. State

2014 UT App 122
_________________________________________________________
THE U TAH COURT OF A PPEALS
J AIME R AMIREZ‐G IL ,
Petitioner and Appellant,
v.
STATE OF U TAH,
Respondent and Appellee.
Opinion
No. 20130201‐CA
Filed May 30, 2014
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 120907082
Lance C. Starr, Attorney for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee
SENIOR J UDGE R USSELL W. BENCH authored this Opinion, in
which J UDGES J. FREDERIC VOROS J R . and STEPHEN L. R OTH
concurred. 1
BENCH, Senior Judge:
¶1 	Jaime Ramirez‐Gil appeals the district court’s summary
judgment ruling denying his petition for post‐conviction relief. We
affirm.
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11‐201(6).

Ramirez‐Gil v. State
BACKGROUND
¶2 	Petitioner was a legal permanent resident of the United
States and had been residing in this country since emigrating from
Mexico in 1969. In 2012, Petitioner was taken into custody for
stalking and various protective order violations. He agreed to a
plea deal and entered a guilty plea to one count of third‐degree‐
felony stalking. See generally Utah Code Ann. § 76‐5‐106.5(2), (3)
(LexisNexis 2012). In exchange, the State dismissed two additional
third‐degree‐felony stalking counts and ten class‐A‐misdemeanor
protective order violations. See generally id. § 76‐5‐108 (Supp. 2013)
(protective order violations). Petitioner received a suspended
prison sentence, was placed on probation, and was sentenced to
serve seventy‐four days in jail of which he was credited seventy‐
two days for time already served.
¶3 	On the day he was released from jail, Immigration and
Customs 	Enforcement 	agents 	took 	Petitioner 	into 	custody,
whereupon an immigration court ordered his deportation in light
of his conviction of a third‐degree felony. Prior to his removal from
the United States, Petitioner filed a petition for post‐conviction
relief, alleging that his trial counsel rendered constitutionally
ineffective assistance by failing to inform him of the immigration
consequences of his plea agreement.
¶4 	The State moved for summary judgment, which the post‐
conviction court granted. The court explained its ruling, stating,
[T]here remains no genuine issue of material fact
relating to the constitutional effectiveness of trial
counsel because Petitioner cannot establish prejudice.
He 	did 	actually 	know 	of 	the 	deportation
consequences of his plea because it was set out
clearly 	in 	the 	written 	plea 	form, 	which 	he
acknowledged 	reviewing 	with 	his 	attorney. 	In
addition, 	Petitioner 	has 	not 	even 	alleged 	an
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Ramirez‐Gil v. State
objectively rational basis for proceeding to trial, let
alone offered evidence of such. . . . [And] Petitioner
has failed to offer any evidence that would, if
proved, entitle him to judgment as a matter of law.
Petitioner appeals the court’s summary judgment order.
ISSUE AND STANDARD OF REVIEW
¶5 	Summary 	judgment 	is 	appropriate 	“if 	the 	pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Utah R. Civ. P. 56(c). “The
propriety of a grant or denial of summary judgment is a question
of law, which we review for correctness. In doing so, we view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.” Glenn v. Reese, 2009 UT
80, ¶ 6, 225 P.3d 185 (citations and internal quotation marks
omitted).
ANALYSIS
¶6 	The post‐conviction court based its summary judgment
ruling on its determination that Petitioner could not demonstrate
that he was prejudiced by the alleged ineffective assistance of his
counsel. Petitioner argues that questions of fact should have
precluded summary judgment. 2
2. Petitioner also argues that the post‐conviction court applied the
wrong standard in reviewing his ineffectiveness claim. Specifically,
he argues that “the court failed to realize . . . that a non‐citizen’s
valuation of risk when deciding whether to proceed to trial is
continue...
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Ramirez‐Gil v. State
¶7 	A two‐part test applies to any ineffectiveness claim. This test
requires 	a 	defendant 	to 	“first 	demonstrate 	that 	counsel’s
performance was deficient, in that it fell below an objective
standard of reasonable professional judgment.” State v. Litherland,
2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466
U.S. 668, 687–88 (1984)); see also Hill v. Lockhart, 474 U.S. 52, 58
(1985) (“[T]he two‐part Strickland v. Washington test applies to
challenges to guilty pleas based on ineffective assistance of
counsel.”). With respect to noncitizen defendants, “the Sixth
Amendment right to effective assistance of counsel” also requires
counsel to “inform her client whether his plea carries a risk of
deportation.” Padilla v. Kentucky, 559 U.S. 356, 373–74 (2010) (“The
severity 	of 	deportation—the 	equivalent 	of 	banishment 	or
exile—only underscores how critical it is for counsel to inform her
noncitizen client that he faces a risk of deportation.” (citation and
internal quotation marks omitted)); accord Jelashovic v. State, 2012
UT App 220, ¶ 7, 285 P.3d 14.
¶8 	The second part of the ineffective assistance test requires
that a defendant “show that counsel’s deficient performance was
prejudicial—i.e., that it affected the outcome of the case.” Litherland,
2000 UT 76, ¶ 19 (citing Strickland, 466 U.S. at 687–88). In order to
demonstrate prejudice on this type of claim, Petitioner “must show
that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on
going to trial,” see Hill, 474 U.S. at 59, and that such a decision
“would have been rational under the circumstances,” see Padilla,
559 U.S. at 372; accord State v. Ruiz, 2013 UT App 274, ¶ 23 n.5, 316
P.3d 984. “[W]e look to the factual circumstances surrounding the
2. ...continue
completely different from the framework utilized by citizen
defendants.” See infra ¶¶ 12–13. We are not persuaded that the
post‐conviction court overlooked or undervalued Petitioner’s
noncitizen status in ruling on the State’s motion for summary
judgment.
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Ramirez‐Gil v. State
plea to determine whether [a defendant] would have proceeded to
trial.” United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)
(citation and internal quotation marks omitted). Furthermore,
“proof of ineffective assistance of counsel cannot be a speculative
matter but must be a demonstrable reality.” Fernandez v. Cook, 870
P.2d 870, 877 & n.40 (Utah 1993) (collecting cases).
I. The Written Plea Agreement Clearly Communicated the
Immigration Risks.
¶9 	Petitioner’s argument relies on his assertion that he was not
adequately informed of the immigration risks associated with
entering a guilty plea to a third‐degree‐felony stalking charge. By
signing the written plea agreement, Petitioner acknowledged that
he reviewed the written plea form with his trial counsel. He also
acknowledges that the written plea form contains the following
statement,
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.
¶10 	Petitioner nonetheless contends that he was unaware that in
his case, deportation was “presumptively mandatory” in light of
the particular offense to which he pleaded. In the affidavit he filed
with his petition for post‐conviction relief, Petitioner stated, “[H]ad
I known, or had someone told me, that by accepting the plea offer
it was a 100% certainty that I would be deported I would never
have 	accepted 	that 	offer.” 	This 	argument 	is 	unpersuasive,
particularly in light of the language in the written plea form
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Ramirez‐Gil v. State
explaining to him that his plea “may, or even will, subject [him] to
deportation” or could “permanently bar[ his] re‐entry into the
United States.” Further, Petitioner’s statement in his appellate brief
that he “may have understood that he could be subject to
deportation” undermines his ineffective assistance argument,
regardless of whether he understood the full spectrum of possible
immigration consequences, because “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.” See Padilla, 559 U.S. at 369; see also Jelashovic, 2012
UT App 220, ¶ 9. Between 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.
II. Petitioner Fails To Demonstrate Prejudice.
¶11 	Even assuming that trial counsel performed deficiently here,
Petitioner must also demonstrate that he was prejudiced by
counsel’s performance. See Archuleta v. Galetka, 2011 UT 73, ¶ 41,
267 P.3d 232. Petitioner explained in his affidavit submitted with
his petition for post‐conviction relief that he moved to the United
States in 1969, when he was three years old, and that “[a]ll of [his]
family, friends, and [in] short, [his] whole life are here.” He stated
in the affidavit,
Because of that, I want this court to know that had I
known, or had someone told me, that by accepting
the plea offer it was a 100% certainty that I would be
deported I would never have accepted that offer. I
would have fought for a different resolution or, if
nothing else was available, I would have taken the
case to trial regardless of my chances of winning. If
the option was between risking a whole bunch of
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Ramirez‐Gil v. State
convictions versus being sent back to a country I do
not know and don’t even remember, I would have
fought.
Petitioner 	alleges 	that 	had 	he 	been 	fully 	informed 	of 	the
immigration consequences of his plea, he would have pressed his
trial counsel to continue plea negotiations to secure a deal that
would not “guarantee[] his deportation and strip[] him of any right
to contest it”; insisted on proceeding to trial, even though he may
have had “absolutely no hope or expectation of actually being
acquitted,” in order to “‘tease out’ evidence at trial that [could]
later be used to mitigate the immigration consequences of his
convictions”; or otherwise used a trial to “go[] out swinging.”
¶12 	We agree with the post‐conviction court’s observation that
Petitioner’s arguments are “suppositions” and are “not based on
any evidence from which the [c]ourt may draw inferences in
Petitioner’s favor.” See Fernandez, 870 P.2d at 877 (noting that
speculation is insufficient to demonstrate prejudice in an ineffective
assistance of counsel argument). Petitioner’s assertion that trial
counsel could have negotiated alternative plea deals is based on
little more than his assumption that the State’s willingness to reach
a plea deal in the first place demonstrates its willingness to
negotiate alternative deals that would be more favorable to
Petitioner. We are not persuaded by this claim and do not
otherwise read Padilla as imposing on trial counsel a general
requirement to secure alternative plea bargains in order to render
effective assistance. We also agree with the State’s assertion that
“the hypothetical existence of a nuanced immigration strategy” at
trial does not “create a rational incentive to proceed to trial in the
absence of . . . concrete and obtainable [trial] objectives.” Last,
Petitioner’s suggestion that a desire to “go out swinging” provides
a rational reason for rejecting a favorable plea offer for either a
citizen or a noncitizen defendant is also without merit.
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Ramirez‐Gil v. State
¶13 	Although the allegation in Petitioner’s affidavit “that he
would have insisted on trial but for his trial counsel’s errors” is a
“necessary” component of his ineffective assistance argument, it “is
ultimately insufficient to entitle him to relief.” See United States v.
Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); see also State v.
Walker, 2013 UT App 198, ¶ 42, 308 P.3d 573; Rhinehart v. State, 2012
UT App 322, ¶ 6, 290 P.3d 921. As recognized by the post‐
conviction court, had Petitioner’s case proceeded to trial, “his
conviction on all counts was virtually assured” because “the texts,
[the] voice messages, and the protective order itself all would have
been presented at trial, and because Petitioner has offered no
reason to suggest that [this] evidence lacked credibility, or that he
had any defense or theory that would have negated the[] damning
effects [of this evidence].” Petitioner did not have any realistic
options that could avoid deportation and we have no reason to
believe that Petitioner would have fared any better in immigration
court had he been convicted of all thirteen charges, rather than the
one to which he pleaded. In contrast, by accepting the plea bargain
and entering a guilty plea to one count of third‐degree‐felony
stalking, Petitioner avoided conviction on two additional third‐
degree‐felony charges and ten misdemeanor charges, which likely
would have resulted in a significant period of incarceration,
followed by deportation. Accordingly, even if we assume that
Petitioner’s counsel performed deficiently by failing to better
inform Petitioner of the immigration consequences associated with
his plea agreement, Petitioner has failed to demonstrate that he was
prejudiced by counsel’s deficient performance.
CONCLUSION
¶14 	Petitioner was adequately informed of the immigration
consequences associated with his plea, as evidenced by his
signature on the written plea agreement acknowledging that he
had reviewed the plea agreement with his trial counsel. Even if
Petitioner 	could 	establish 	that 	his 	trial 	counsel 	performed
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Ramirez‐Gil v. State
deficiently by failing to better inform him of the immigration
consequences, he has not demonstrated that he was prejudiced by
counsel’s performance. Petitioner based his ineffective assistance
of counsel arguments on speculation and failed to provide
evidence sufficient to withstand summary judgment. Accordingly,
we affirm the post‐conviction court’s ruling granting the State’s
motion for summary judgment.
20130201‐CA 	2014 UT App 122	9