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Sanchez v. State

Supreme Court of Minnesota

February 22, 2017

Francisco Herrera Sanchez, Appellant,
v.
State of Minnesota, Respondent.

          Herbert A. Igbanugo, Jason A. Nielson, Igbanugo Partners Int'l Law Firm, PLLC, Minneapolis, Minnesota, for appellant.

          Lori Swanson, Attorney General, Saint Paul, Minnesota; and

          John L. Fossum, Rice County Attorney, Terence Swihart, Assistant Rice County Attorney, for respondent.

          Eric J. Magnuson, Colin F. Peterson, Robins Kaplan, LLP, Minneapolis, Minnesota;

          Katherine L. Evans, R. Linus Chan, University of Minnesota Law School Center for New Americans, Minneapolis, Minnesota; and

          John Keller, Sheila Stuhlman, Immigrant Law Center of Minnesota, Saint Paul, Minnesota for amicus curiae Immigrant Law Center of Minnesota.

          Bruce D. Nestor, De León & Nestor, LLC, Minneapolis, Minnesota, for amicus curiae Minnesota Association of Criminal Defense Lawyers.

         SYLLABUS

         Defense counsel was only required to inform a noncitizen client that his guilty plea to third-degree criminal sexual conduct may subject him to removal from the United States, Minn. Stat. § 609.344, subd. 1(b) (2016), because it was not "truly clear" that the offense constituted "sexual abuse of a minor" under the aggravated-felony provision of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2015).

         Affirmed.

          OPINION

          STRAS, Justice.

         This case requires us to determine the extent of a criminal-defense attorney's obligation under the Sixth Amendment to the United States Constitution to inform a noncitizen defendant of the immigration consequences of a guilty plea. The appellant, Francisco Herrera Sanchez, pleaded guilty to third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(b) (2016), which led to the initiation of removal proceedings against him. In an effort to avoid deportation, Sanchez filed an emergency motion to withdraw his guilty plea, in which he argued, in part, that his counsel provided ineffective assistance by failing to accurately inform him that the plea would lead to his removal from the United States. The postconviction court denied Sanchez's motion to withdraw the plea, and the court of appeals affirmed. Because Sanchez's counsel accurately advised him about the immigration consequences of his plea, we also affirm.

          I.

         Sanchez, who was born in Mexico, arrived in the United States with his parents as a minor in 2005. In 2012, he applied for and received Deferred Action for Childhood Arrivals ("DACA"), a program under which noncitizens who come to the United States as children can receive a limited deferral from removal proceedings. See Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (last updated Dec. 22, 2016).

         In 2013, when Sanchez was 19 years old, the State charged him with two counts of third-degree criminal sexual conduct. Minn. Stat. § 609.344, subd. 1(b). The complaint alleged that Sanchez sexually penetrated two minor children between 13 and 16 years of age. The State also charged Sanchez with the offense of furnishing alcohol to a minor. Minn. Stat. § 340A.702(8) (2016); see Minn. Stat. § 340A.503, subd. 2(1) (2016).

         Before trial, Sanchez pleaded guilty to one of the counts of third-degree criminal sexual conduct and to the count of furnishing alcohol to a minor. In exchange, the State agreed to dismiss the remaining criminal-sexual-conduct count and recommend that the district court stay the imposition of Sanchez's sentence, place him on probation, and require him to serve no more than 90 days of probationary jail time. As part of the plea process, Sanchez signed a written petition that included the following statement: "My attorney has told me and I understand that if I am not a citizen of the United States this plea of guilty may result in deportation, exclusion from admission to the United States of America or denial of citizenship." (Emphasis added.)

          During the plea hearing, defense counsel questioned Sanchez. Among other things, defense counsel confirmed that Sanchez had reviewed the plea agreement. In response to questioning, Sanchez agreed that he was not a citizen of the United States and "that as a result of a plea in this particular matter that, if [he was] not a citizen of the United States, a plea of guilty could result in either deportation, exclusion from admission to the United States, or denial of citizenship." (Emphasis added.) The hearing also established the factual basis of the plea when Sanchez admitted that he had engaged in sexual intercourse with a minor named K.R., whom he knew at the time was less than 16 years of age. He also admitted that he provided alcohol to K.R. and her friends, each of whom was younger than 21 years old.

         At the sentencing hearing, the district court formally accepted Sanchez's plea and stayed imposition of his sentence, see Minn. Stat. § 609.135 (2016), which included two concurrent terms of 90 days in jail and 10 years of supervised probation. According to the warrant of commitment and by operation of law, successful completion of the probationary term would convert Sanchez's felony conviction of third-degree criminal sexual conduct into a misdemeanor. See Minn. Stat. § 609.13, subd. 1(2) (2016).

         Immediately after sentencing, officers from Immigration and Customs Enforcement ("ICE") took Sanchez into custody. That same day, ICE issued a final administrative removal order. The order explained that Sanchez was subject to removal from the United States because the offense of third-degree criminal sexual conduct involving a minor, Minn. Stat. § 609.344, subd. 1(b), constitutes an "aggravated felony" under the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1101(a)(43)(A) (2015) (defining "aggravated felony" to include "sexual abuse of a minor"); see also 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.").

         With the assistance of new counsel, Sanchez filed an emergency motion to withdraw his guilty plea under Minn. R. Crim. P. 15.05 and Minn. Stat. § 590.01 (2016). The motion broadly claimed that Sanchez's plea was not accurate, voluntary, or intelligent. The motion specifically relied on a recent Supreme Court decision, Padilla v. Kentucky, to argue that plea counsel provided constitutionally inadequate representation by giving him incorrect advice about the immigration consequences of his guilty plea. 559 U.S. 356, 369 (2010) (requiring criminal-defense counsel to advise noncitizen clients that a plea may result in deportation when the immigration consequences are "unclear, " or that deportation is presumptively mandatory when the immigration consequences are "truly clear"). Sanchez argued that Padilla required his attorney to advise him that the plea would result in his deportation, rather than just that deportation was a possibility. Such advice was necessary, according to Sanchez, because his removal was "an absolute certainty" under federal law.

         The postconviction court granted an evidentiary hearing on Sanchez's motion. Both plea counsel and Sanchez testified, but their testimony was inconsistent. The court resolved the inconsistency by crediting counsel's testimony over Sanchez's testimony, which led the court to find that counsel informed Sanchez both "that he was looking at deportation" and that he "would be deported as a result of his plea."

         After reviewing the relevant federal statutes and cases, the postconviction court concluded that counsel's advice was constitutionally adequate because the immigration consequences of Sanchez's plea were not truly clear. The court reasoned that the definition of "sexual abuse of a minor" is unsettled under federal law, making it unclear whether third-degree criminal sexual conduct qualifies as an aggravated felony under the INA. For that reason, the court held that it was constitutionally sufficient for plea counsel to have informed Sanchez that he "was looking at deportation" or could be deported.

         In the alternative, the postconviction court concluded that, even if the immigration consequences were "clear and certain, " plea counsel provided effective assistance "based upon his private advice" to Sanchez that he "would be deported." This advice, the court stated, was sufficient to inform Sanchez that deportation was a "certain result" of the plea. Accordingly, regardless of the level of specificity of the advice that plea counsel was required to give Sanchez, the court held ...


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