Appeal
from the Superior Court in Maricopa County The Honorable
Phemonia L. Miller, Judge Pro Tempore No. CR2013-430489-001
Memorandum
Decision of the Court of Appeals Division One 1 CA-CR16-0793
PRPC Filed Sept. 18, 2018
Ray A.
Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office
of Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for
Hector Sebastian 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.
¶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 postconviction
relief.
I.
¶2
We defer to a trial court's findings of fact unless
clearly erroneous. State v. Hulsey, 243 Ariz. 367,
377 ¶ 17 (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.
¶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 not
have entered the plea if his counsel had accurately advised
him of the immigration consequences.
¶7
After holding an evidentiary hearing, the trial court ruled
that Nunez-Diaz had established ineffective assistance of
counsel under Strickland v. Washington,466 U.S. 668
(1984). The court found overwhelming evidence that
"counsel's actions fell below an objective standard
[of reasonableness]." Counsel had "misrepresented
the immigration consequences to defendant," and failed
to inform Nunez-Diaz that his removal would be guaranteed if
he accepted the plea. As a "direct result of
[counsel's] failure," Nunez-Diaz was prejudiced by
forfeiting his chance at trial ...