Page 251
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:
Page 252
[¶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 counsels 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 courts 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-Diazs family began searching for an
attorney. Their chief concern was avoiding Nunez-Diazs
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-Diazs family chose to retain that firm, and
the firm assigned a criminal defense attorney to Nunez-Diazs
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-Diazs voluntary removal to Mexico, where
Nunez-Diaz has remained.
Page 253
[¶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 ...