People v. Pozo
746 P.2d 523 (1987)
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Rule of Law:
An attorney's failure to advise an alien client of the potential deportation consequences of a guilty plea may constitute ineffective assistance of counsel, depending on a case-by-case analysis of whether the attorney had reason to know of the client's alien status and whether the failure to investigate and advise fell below an objective standard of reasonableness.
Facts:
- Jose Borcella Pozo, an alien legally residing in the United States, came to the country from Cuba in April 1980.
- In October 1982, pursuant to a plea agreement, Pozo entered guilty pleas to second-degree sexual assault and escape.
- Pozo's trial counsel did not discuss the potential for deportation with him prior to the entry of his guilty pleas.
- At the time of his pleas, Pozo was not aware that a conviction could result in his deportation.
- Following his convictions, the Immigration and Naturalization Service filed a detainer against Pozo to initiate deportation proceedings.
- Pozo later stated that he would not have pleaded guilty if he had been aware of the deportation consequences.
Procedural Posture:
- Jose Borcella Pozo filed motions to vacate his judgments of conviction under Crim.P. 35(c) in the Arapahoe County District Court (trial court).
- The trial court held a hearing and denied Pozo's motions, finding that he had received effective assistance of counsel.
- Pozo, as appellant, appealed the trial court's order to the Colorado Court of Appeals (intermediate appellate court).
- The Court of Appeals reversed the trial court, holding that the failure to advise on deportation consequences constituted ineffective assistance of counsel.
- The People, as petitioner, were granted a writ of certiorari by the Colorado Supreme Court (highest state court) to review the decision of the Court of Appeals.
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Issue:
Does a defense attorney's failure to advise an alien client of the potential deportation consequences of a guilty plea constitute ineffective assistance of counsel?
Opinions:
Majority - Kirshbaum, J.
No. A defense attorney's failure to advise an alien client of potential deportation consequences does not automatically constitute ineffective assistance of counsel, but must be evaluated on a case-by-case basis. Applying the two-part test from Strickland v. Washington, the court must first assess whether counsel's performance was deficient and then whether this deficiency prejudiced the defendant. The court rejected a bright-line rule and instead established a fact-specific inquiry. The first step is to determine if counsel knew or had reason to know the client was an alien. If so, counsel may have a duty to investigate relevant immigration law. The failure to do so could fall below an objective standard of reasonable professional conduct. The case was remanded for the trial court to make factual findings on whether counsel had reason to know of Pozo's alien status, whether the failure to investigate was deficient performance, and whether Pozo was prejudiced by showing a reasonable probability that he would have insisted on going to trial if properly advised.
Dissenting - Erickson, J.
No. Pozo failed to meet his burden of proving the allegations in his motion for post-conviction relief. The trial court was correct in finding that the claim of ineffective assistance of counsel was without merit.
Dissenting - Rovira, J.
No. An ineffective assistance of counsel claim is only relevant to a guilty plea to the extent it affects the voluntariness and understanding of the plea's direct consequences. Deportation is a collateral, not a direct, consequence of a conviction. Therefore, an attorney's failure to advise on a collateral matter like deportation does not render a plea involuntary or constitute ineffective assistance. The majority's holding opens a 'Pandora's box' for challenging guilty pleas based on ignorance of numerous other collateral consequences, undermining the finality of criminal convictions.
Analysis:
This decision represents a significant shift from the traditional view that deportation is merely a 'collateral consequence' of a conviction that counsel has no duty to explain. By establishing a fact-specific inquiry based on the Strickland test, the court placed a new potential duty on defense counsel to investigate and advise on immigration law when representing non-citizen clients. This precedent increases the complexity of effective representation for alien defendants and creates a new basis for them to challenge the validity of their guilty pleas, potentially impacting the finality of convictions obtained through plea bargains.
