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The State of New Hampshire v. Deicy Urena Ortiz

April 10, 2012

THE STATE OF NEW HAMPSHIRE
v.
DEICY URENA ORTIZ



The opinion of the court was delivered by: Conboy, J.

Manchester District Court

Argued: October 13, 2011

The defendant, Deicy Urena Ortiz, appeals the Manchester District Court's (Lyons, J.) denial of her motion to withdraw her plea and vacate her misdemeanor conviction. On appeal, she contends her plea was not knowing because the court did not advise her of its potential adverse immigration consequences. We affirm.

The following facts are drawn from the record. The defendant has been a lawful resident of the United States since 2002. In November 2007, she was charged with the class A misdemeanor of shoplifting. On November 28, 2007, she appeared before the Manchester District Court (Lyons, J.) and entered a plea of nolo contendere. She was not represented by counsel. The defendant signed a standard acknowledgment and waiver of rights form, which, at the time, contained no acknowledgment of the potential adverse immigration consequences of entering either a guilty or nolo plea. During the plea colloquy, the court did not advise the defendant that her plea could result in adverse immigration consequences.

In March 2011, the federal government commenced removal proceedings against the defendant, contending that her shoplifting conviction constituted "a crime involving moral turpitude," a deportable offense. See 8 U.S.C. § 1182 (a)(2)(A)(i)(I) (2005). In response, the defendant filed a motion to withdraw her plea and vacate her conviction. In her motion, she argued that her plea was not "knowing" because: (1) the court failed to inform her "that a conviction could subject her to deportation"; and (2) she "was affirmatively misled (albeit innocently) [by the prosecutor] that there would be no such consequences." The State objected.

Acknowledging that it did not advise the defendant of the possible immigration consequences of her plea, the court concluded that the defendant raised a "pure issue of law," and, therefore, there was "no need for a hearing on the factual basis for [her] request." The court was not persuaded by the defendant's argument that Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (finding ineffective assistance of counsel where defense counsel failed to advise defendant that plea could result in deportation), supported "the proposition that she had a right to such notice of immigration consequences." Accordingly, the court denied the motion, concluding that because "[p]ossible immigration consequence is a collateral and not a direct consequence" of a misdemeanor conviction, the court was not obligated to provide notice. See State v. Harper, 126 N.H. 815, 821 (1985) ("We have said that a defendant need only be advised of the direct consequences of his guilty plea and not of consequences which are collateral." (quotations and brackets omitted)).

On appeal, the defendant continues to maintain that she did not enter into a knowing plea because the court failed to advise her of potential adverse immigration consequences. Alternatively, she contends that the State Constitution's Due Process Clause requires warning of possible immigration consequences to ensure the "fundamental fairness" of her plea. She maintains that she "would not have pleaded [nolo contendere] if she knew that she risked deportation by doing so."

Following oral argument, we remanded the case to the trial court to consider whether the unrepresented defendant entered a knowing plea to the shoplifting charge in light of her allegation that the prosecutor who negotiated the plea told her that a conviction would not affect her immigration status. After an evidentiary hearing, the trial court found that the defendant did not meet her burden of proving this allegation, and reaffirmed its denial of her motion. The defendant concedes that the court's resolution of this factual issue is afforded substantial deference; therefore, she does not challenge it.

However, she maintains that she did not enter into a knowing plea because the trial court violated her due process rights under the State and Federal Constitutions in failing to advise her of the possibility of adverse immigration consequences. We first address the defendant's claim under the State Constitution, and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

Because a conviction results from a plea of nolo contendere, we find no reason here to distinguish a nolo plea from a plea of guilty. See State v. LaRose, 71 N.H. 435, 438 (1902) ("[A] plea of nolo contendere has the same legal effect as a plea of guilty."); 21 Am. Jur. 2d Criminal Law § 676 (2008) ("For practical purposes, a plea of nolo contendere is a plea of guilty, or the functional or substantive equivalent of such a plea." (footnote omitted)). Therefore, our jurisprudence regarding guilty pleas is applicable here.

"A guilty plea must be knowing, intelligent, and voluntary to be valid." State v. Dansereau, 157 N.H. 596, 603 (2008) (quotation omitted). "Thus, a defendant must voluntarily waive his rights and fully understand the elements of the offense to which he is pleading, the direct consequences of the plea, and the rights he is forfeiting." Id. (quotation and brackets omitted). In a collateral attack of a guilty plea, the defendant bears the initial burden and must describe the specific manner in which the waiver was in fact involuntary or without understanding, and must at least go forward with evidence sufficient to indicate that his specific claim presents a genuine issue for adjudication. State v. Offen, 156 N.H. 435, 438 (2007). If the defendant meets his initial burden, and if the record indicates that the trial court affirmatively inquired into the knowledge and volition of the defendant's plea, then the defendant has the burden to demonstrate by clear and convincing evidence that the trial court was wrong and that his plea was either involuntary or unknowing for the reason he specifically claims. Id. On the other hand, if there is no record or an inadequate record of the trial court's inquiries into the defendant's volition and knowledge, the State has the burden to respond to the defendant's claim by demonstrating to a clear and convincing degree that the plea was voluntary or knowing in the respect specifically challenged. State v. Arsenault, 153 N.H. 413, 416 (2006).

Here, the defendant carried her initial burden of describing the specific manner in which her plea was unknowing; she does not challenge the voluntariness of her plea. Because the district court acknowledged that it "did not advise the defendant of possible immigration consequences of [her] plea," see id., the burden shifts to the State to demonstrate, to a clear and convincing degree, that the defendant's plea was knowing. Offen, 156 N.H. at 438. To support its contention that her plea was knowing, the State maintains that the trial court properly advised the defendant of the direct consequences of her plea. Moreover, the State contends that Padilla "cannot be read to create a new due process right by requiring a trial court to inform a defendant of the immigration consequences of her guilty plea."

We have consistently held that as a matter of constitutional due process, the defendant must be advised of the direct consequences of entering a guilty plea, but not the potential collateral consequences, in order for the guilty plea to be considered knowing. State v. Fournier, 118 N.H. 230, 231 (1978) (per curiam) ("[D]efendant need only be advised of the direct consequences of his guilty plea and not of consequences which are collateral."); State v. Elliott, 133 N.H. 190, 192 (1990); Harper, 126 N.H. at 821; see Brady v. United States, 397 U.S. 742, 755 (1970). In adopting this rule, we recognized that "consequences attendant to the commission of an offense are so numerous and logically unforeseeable, to require more would be an absurdity and would impose upon the trial court an impossible, unwarranted, and unnecessary burden." Fournier, 118 N.H. at 231. Although the district court concluded that "[p]ossible immigration consequence[s constitute] a collateral and not a direct consequence of a class A misdemeanor conviction," we have not previously opined on this particular issue.

Other jurisdictions have concluded that deportation is a collateral consequence of a guilty plea. See, e.g., Smith v. State, 697 S.E.2d 177, 182-84 (Ga. 2010); People v. Gutierrez, 954 N.E.2d 365, 381 (Ill. App. 2011), appeal denied, 962 N.E. 2d 485 (Ill. 2011). Nevertheless, relying on Padilla, 130 S. Ct. at 1482, the defendant argues that "knowledge regarding deportation -- ...


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