State v. Nunez-Diaz

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          Appeal from the Superior Court in Maricopa County, The Honorable Phemonia L. Miller, Judge, Pro Tempore, No. CR2013-430489-001. AFFIRMED

         Memorandum Decision of the Court of Appeals, Division One, 1 CA-CR 16-0793 PRPC, Filed Sept. 18, 2018. AFFIRMED

         Ray A. Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for Hector Sebastion Nunez-Diaz

         William G. Montgomery, Maricopa County Attorney, Karen Kemper, Deputy County Attorney (argued), Phoenix, Attorneys for State of Arizona

         Mark Brnovich, Arizona Attorney General, Drew C. Ensign (argued), Deputy Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

         John Walters, Office of the Pima County Public Defender, Tucson; Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant Federal Public Defender, Phoenix; Grant D. Wille, Ralls & Reidy, P.C., Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice, Pima County Public Defender, and the Federal Public Defender for the District of Arizona

          CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES TIMMER, BOLICK and PELANDER (Retired) joined. JUSTICE BOLICK, joined by JUSTICE PELANDER, filed a concurring opinion. JUSTICE LOPEZ, joined by VICE CHIEF BRUTINEL and JUSTICE GOULD, filed an opinion concurring in the result.

         OPINION

          BALES, CHIEF JUSTICE:

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         [¶1] In this case involving post-conviction relief, the State argues that the lower courts erred in concluding that Hector Sebastion Nunez-Diaz, an undocumented immigrant, received ineffective assistance of counsel when he entered a guilty plea resulting in his mandatory deportation. The State contends that because Nunez-Diaz was deportable without regard to his plea, he cannot establish a claim of ineffective assistance or, alternatively, that any constitutional violation was harmless. Because Nunez-Diaz suffered severe and mandatory consequences (including a permanent bar from reentry) as a result of the plea he entered due to counsel’s deficient advice, we agree with the trial court and the court of appeals that he received ineffective assistance of counsel justifying post-conviction relief.

          I.

         [¶2] We defer to a trial court’s findings of fact unless clearly erroneous. State v. Hulsey, 243 Ariz. 367, 377 ¶ 17, 408 P.3d 408, 418 (2018). Nunez-Diaz was stopped for speeding and found in possession of small amounts of methamphetamine and cocaine. He was subsequently charged with possession or use of a dangerous drug and possession or use of a narcotic drug, each a class 4 felony. See A.R.S. § § 13-3407(A)(1), -3408(A)(1). The record does not reflect that Nunez-Diaz had any prior criminal history.

         [¶3] Upon his arrest, Nunez-Diaz’s family began searching for an attorney. Their chief concern was avoiding Nunez-Diaz’s deportation. They met with an attorney from a Phoenix law firm experienced in criminal defense and immigration law, who informed them that although Nunez-Diaz had a difficult case, it was possible to avoid deportation. Reassured by this meeting, Nunez-Diaz’s family chose to retain that firm, and the firm assigned a criminal defense attorney to Nunez-Diaz’s case.

         [¶4] The State offered a plea deal that would reduce the charges Nunez-Diaz was facing to a single count of possession of drug paraphernalia, a class 6 undesignated felony. See A.R.S. § 13-3415(A). Counsel advised Nunez-Diaz to take the plea. He did. Consistent with the plea agreement, the trial court suspended sentencing and placed Nunez-Diaz on eighteen months’ unsupervised probation.

         [¶5] Nunez-Diaz was transferred to the custody of United States Immigration and Customs Enforcement ("ICE"). He was informed that, because of his plea, he could not bond out of custody and would be deported. This alarmed both Nunez-Diaz and his family, who returned to the law firm. There, an immigration attorney told the family that because of the plea, nothing could be done to keep Nunez-Diaz in this country. The family found new counsel who was able to negotiate for Nunez-Diaz’s voluntary removal to Mexico, where Nunez-Diaz has remained.

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         [¶6] Nunez-Diaz then initiated post-conviction relief proceedings pursuant to Arizona Rule of Criminal Procedure 32. He claimed he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In his pleadings, he avowed that his primary concern in considering the plea offer was his immigration status and he would ...