State v. Tomas G. Rojas-Martinez

2005 UT 86
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20030668
Plaintiff and Petitioner,
v.
F I L E D
Tomas G. Rojas-Martinez,
Defendant and Respondent. November 22, 2005
---
Second District, Farmington
The Honorable Rodney S. Page
No. 021700886
Attorneys: Mark L. Shurtleff, Att’y Gen., Christopher D.
Ballard, Asst. Att’y Gen., Salt Lake City,
for plaintiff
Hakeem Ishola, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 This case presents the question of whether the court of
appeals correctly determined that Mr. Rojas-Martinez’s defense
counsel provided ineffective assistance by advising him, an
undocumented foreign national, that he “might or might not” be
deported if he pleaded guilty to a sexual battery charge, even
though the offense was automatic cause for deportation under
federal law. We reverse.
FACTUAL AND PROCEDURAL HISTORY
¶2 Tomas G. Rojas-Martinez was accused of touching the
breast of a sixteen-year-old juvenile, over her clothing and
without her consent. On May 28, 2002, he was charged with one
count of sexual battery, which is a class A misdemeanor under
Utah Code Ann. § 76-9-702(3) (Supp. 2000). Mr. Rojas-Martinez’s
guilty plea triggered, however, additional consequences to the
penalties permitted for a class A misdemeanor. Under federal
immigration law, specifically section 101 of the Immigration and

1 8 U.S.C. § 1101(a)(43)(A) reads: “The term aggravated
felony means (A) murder, rape, or sexual abuse of a minor.”
8 U.S.C. § 1227(a)(2)(A)(iii) adds: “(a) classes of deportable
aliens (2) criminal offenses (A) General crimes (iii) Aggravated
felony: Any alien who is convicted of an aggravated felony at
any time after admission is deportable.”
2 In short, rule 11(e) instructs the court that it may not
accept a guilty plea until it finds that (1) the defendant has
counsel or has knowingly waived that right; (2) the plea was made
voluntarily; (3) the defendant is aware of the presumption of
innocence, the right against self-incrimination, the right to a
speedy trial before an impartial jury, the right to confront and
cross-examine witnesses, the right to compel attendance of
defense witnesses, and that these rights are waived by entering a
guilty plea; and (4) the nature and elements of the charged
offense are understood, that the prosecution has the burden of
establishing the offenses beyond a reasonable doubt, and that
there is a factual basis for the plea. Utah R. Civ. P. 11.
No. 20030668 2
Nationality Act, sexual abuse of a minor is classified as an
aggravated felony and therefore a deportable offense. 8 U.S.C.
§ 1101(a)(43)(A) (Supp. 2003); 8 U.S.C. § 1277(a)(2)(A)(iii).1
¶3 When Mr. Rojas-Martinez entered his guilty plea, the
trial judge made appropriate inquiry to satisfy himself that
Mr. Rojas-Martinez understood the English language and conducted
the review of rights that Mr. Rojas-Martinez was surrendering as
required by rule 11 of the Utah Rules of Criminal Procedure.2
The trial court accepted Mr. Rojas-Martinez’s guilty plea and
sentenced him to 365 days in jail. Soon thereafter, Mr. Rojas-
Martinez was subjected to deportation proceedings.
¶4 Mr. Rojas-Martinez timely moved to withdraw his guilty
plea. At the hearing on this motion, Mr. Rojas-Martinez’s
counsel testified that Mr. Rojas-Martinez expressed concern over
the effect of the guilty plea on his immigration status. Counsel
responded by telling Mr. Rojas-Martinez that “as this was a
misdemeanor, sometimes the INS does not deport because of lack of
resources or for whatever reason, they do not deport, but . . .
he could not count on that, that they do have the authority to
deport him.”
¶5 The trial court ruled that, prior to the plea hearing,
Mr. Rojas-Martinez’s counsel had “informed [him] that [a] guilty
plea and conviction could lead to deportation, but it might or

3 No. 20030668
might not.” Concluding that Mr. Rojas-Martinez counsel “did not
affirmatively misrepresent the [deportation] consequences of
. . . Defendant’s guilty plea,” the trial court denied the
motion.
¶6 Mr. Rojas-Martinez appealed to the Utah Court of
Appeals, arguing that the trial court erred in denying his motion
to withdraw his guilty plea. To support his claim, he argued
that (1) he received ineffective assistance of counsel because
his counsel misstated the law regarding deportation and the
consequences of a guilty plea, (2) his consent was “involuntary”
and invalid due to the incompetent advice, and (3) the trial
court failed to comply with rule 11 of the Utah Rules of Criminal
Procedure by failing to provide an interpreter during the plea
proceedings. See State v. Rojas-Martinez, 2003 UT App 203, ¶ 11
nn.5-6, 73 P.3d 967.
¶7 The court of appeals reversed the trial court’s finding
that counsel’s advice did not constitute ineffective assistance
of counsel based on the United States Supreme Court’s two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668
(1984). Rojas-Martinez, 2003 UT App 203, ¶¶ 10-11. To support
its conclusion, the court reasoned that although the crime is
only a misdemeanor under Utah law, federal immigration law
classifies a sexual offense with a minor as an aggravated felony,
which eliminates any discretion the government would otherwise
have to waive deportation. Id. ¶ 9. Because Mr. Rojas-Martinez
was advised that he “might or might not be deported,” the
appellate court held that counsel provided inadequate assistance
when he affirmatively misrepresented the legal consequences of
his guilty plea. Id. ¶ 10. The court also found that Mr. Rojas-
Martinez was prejudiced by counsel’s misrepresentation because
the misstatement created a reasonable probability that, but for
the advice, the result of the proceeding would have been
different. Id. ¶ 11. Faced with Mr. Rojas-Martinez’s affidavit
that he would have “gone to trial [to] prove [his] innocence,”
the court of appeals concluded that counsel’s actions did in fact
prejudice Mr. Rojas-Martinez. Id.
STANDARD OF REVIEW
¶8 “On certiorari, ‘we review the decision of the court of
appeals and not that of the trial court.’ Furthermore, ‘we
review the decision of the court of appeals for correctness.’”
Harris v. Albrecht, 2004 UT 13, ¶ 8, 86 P.3d 728 (quoting Collins
v. Sandy Bd. of Adjustment, 2002 UT 77, ¶ 11, 52 P.3d 1267).

No. 20030668 4
ANALYSIS
¶9 Mr. Rojas-Martinez argues that he was denied his Sixth
Amendment guarantee of counsel when his counsel misinformed him
of the deportation consequences of a guilty plea to the charged
offense. Amendment VI of the United States Constitution states:
“In all criminal prosecutions, the accused shall . . . have the
assistance of counsel for his defense.” U.S. Const. Amend. VI.
The Supreme Court extended this constitutional right to include
effective assistance of counsel in McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970), holding that the promise made by the
amendment would be hollow if defendants were “left to the mercies
of incompetent counsel.” The generalized principle that the
right to counsel included the guarantee of effective counsel
spawned the two-pronged test of effectiveness announced in
Strickland v. Washington, 466 U.S. 668, 687 (1984). The
Strickland test weighs whether (1) “counsel’s performance was
deficient below an objective standard of reasonable professional
judgment, and (2) counsel’s performance prejudiced the
defendant.” Id. The Court also noted that ineffective
assistance of counsel claims may be defeated upon a finding by
the court that either prong was not satisfied. Id. at 697.
¶10 This court has previously adopted the Strickland test
when deciding a challenge to a guilty plea based on ineffective
assistance of counsel in State v. Martinez, 2001 UT 12, ¶ 16, 26
P.3d 203 (following Hill v. Lockhart, 474 U.S. 52, 58 (1985),
which stated that “the two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective
assistance of counsel”). This appeal is our first experience in
addressing an ineffective assistance of counsel challenge based
on an alleged failure to provide accurate information about the
collateral consequences of a guilty plea. This issue, however,
has been addressed by our court of appeals in State v. McFadden,
884 P.2d 1303 (1994), and we look to that decision as a logical
embarkation point for our analysis of Mr. Rojas-Martinez’s
appeal.
I. THE McFADDEN APPROACH TO COLLATERAL CONSEQUENCES AND
INEFFECTIVE ASSISTANCE OF COUNSEL
¶11 In McFadden, the court of appeals concluded that
counsel did not provide ineffective assistance when he failed to
advise a defendant of the risk of deportation prior to his guilty
plea. 884 P.2d at 1305. McFadden was a Canadian citizen who
pleaded guilty as part of a bargain to reduce his charge of
forcible sexual abuse. Id. at 1304. Prior to sentencing, he
moved to withdraw his guilty plea after learning that his

5 No. 20030668
conviction could trigger his deportation. Id. The trial court
denied the motion, and on appeal the court of appeals agreed,
stating that the possibility of deportation was merely a
collateral consequence unrelated to the sentence imposed and the
failure of counsel to advise Mr. McFadden of the possibility of
deportation did not deprive him of effective assistance of
counsel. Id. at 1304-05.
A. Deportation Is Merely a Collateral Consequence of the
Criminal Process
¶12 Because there was then no controlling law relating to
collateral consequences in this jurisdiction, the court of
appeals relied on case law from other jurisdictions to reach its
decision. McFadden, 884 P.2d at 1305. The court referenced
twelve federal courts that all concluded that “counsel’s failure
to warn of possible deportation . . . is a collateral consequence
of the criminal process and hence the failure to advise does not
amount to ineffective assistance of counsel.” Id. The decisions
of these courts were unified in their reliance on a common
traditional definition of collateral, namely, that
[a] consequence is collateral if an agent
independent of the court--either the
defendant or another governmental entity--
must act to cause that consequence. Courts
view deportation as a collateral consequence
of conviction. They deem potential
deportation of an alien defendant a
collateral consequence of his guilty plea
because an agency which operates beyond the
direct authority of the trial judge controls
that sanction.
Ethan Venner Torrey, The Dignity of Crimes: Judicial Removal of
Aliens and the Civil-Criminal Distinction, 32 Colum. J.L. & Soc.
Probs. 187, 197 (1999).
The Court of Apeals for the Second Circuit added
[t]he district judge, in our view, has the
obligation to ascertain that the consequences
of the sentence he imposes are understood.
Deportation here, as before, was not the
sentence of the court which accepted the plea
but of another agency over which the trial
judge has no control and for which he has no
responsibility . . . . He must assure

No. 20030668 6
himself only that the punishment that he is
meting out is understood.
Id.
¶13 This appears to be true even when state law conflicts
with federal law. As the Seventh Circuit stated in United States
v. Ray, 828 F.2d 399, 418 (7th Cir. 1987), “[w]hether [a] federal
sentence runs consecutively or concurrently to [a] state sentence
is not a direct consequence of a guilty plea and therefore need
not be explained to defendant in order for [a] guilty plea to be
constitutionally valid.” Furthermore,
[a]dministrative separation of the criminal
prosecution from the deportation proceeding
renders deportation a collateral consequence
of the plea. Deportation under the I.N.A. is
neither automatic, nor vested with the
courts. It is vested with the Attorney
General, who must institute a separate
proceeding if she decides, in her discretion,
to deport the alien. A guilty plea entered,
therefore, without knowledge of the
collateral consequence of deportation, is
knowing and voluntary as a matter of law. If
deportation decisions are embodied in plea
agreements, however, as permitted by section
1228(c), then deportation would become part
of “the sentence of the court which accepted
the plea,” and would emphatically not be the
decision of “another agency over which the
trial judge has no control and for which he
has no responsibility.”
Torrey, supra at 199-200.
¶14 In McFadden, the court of appeals also noted that it
had discovered eleven state jurisdictions that also followed the
federal rule that counsel is not required “to inform an accused
of possible deportation consequences of a guilty plea.” 884 P.2d
at 1305.
B. The Court of Appeals Recognizes an Exception to the
Collateral Rule if Counsel Affirmatively Misrepresents
Deportation Consequences
¶15 The court of appeals was careful to note an exception
to the collateral consequences rule “when counsel affirmatively,

7 No. 20030668
but erroneously, represents that the accused will not be subject
to deportation.” McFadden, 884 P.2d at 1305 n.3. As a
foundation for the affirmative misrepresentation exception, the
McFadden court looked to Downs-Morgan v. United States, 765 F.2d
1534, 1540-41 (11th Cir. 1985). Mr. Downs-Morgan was a resident
of Nicaragua who pleaded guilty to one count of conspiracy to
import marijuana in exchange for the dismissal of the charge of
possession with intent to distribute. Id. at 1536. His attorney
incorrectly advised him that the conviction would not subject him
to deportation. Id. Mr. Downs-Morgan argued that his guilty
plea was based on this erroneous advice. Id. The court also
accepted evidence that Mr. Downs-Morgan would be persecuted if
returned to Nicaragua, face imprisonment for many years, and
possibly lose his life for his participation in anti-communist
activities. Id. at 1538. Mr. Downs-Morgan argued that
ineffective assistance of counsel rendered his plea invalid since
he could not reasonably have made an intelligent and voluntary
decision to face the fate that lay in store for him in Nicaragua.
Id.
¶16 In a footnote, the Downs-Morgan court distinguished
between a guilty plea based on “patently erroneous” advice and
cases where the plea was “based on competent, good faith advice
which later turn[ed] out to be incorrect.” Id. at 1539 n.11. In
another footnote, Downs-Morgan cited State v. Malik, 680 P.2d 770
(1984), where “the court found no ineffective assistance of
counsel because the evidence showed that the defense attorney had
informed the defendant that it was ‘possible’ that he would be
deported.” Id. at 1540 n.13.
¶17 The Downs-Morgan court also relied on People v. Correa,
465 N.E.2d 507 (Ill. App. 1984), which held that “[w]here defense
counsel has unequivocally represented to his client that [a
guilty] plea will not result in his deportation and the defendant
has relied upon this patently erroneous advice in deciding to
plead guilty, post-conviction relief is appropriate . . . .” Id.
at 1540. In the end, the Downs-Morgan court refused to hold that
“an affirmative misrepresentation by an attorney in response to a
specific inquiry by the accused which results in a plea of guilty
necessarily constitutes ineffective assistance of counsel.” Id.
“[T]he performance inquiry must be whether counsel’s assistance
was reasonable considering the circumstances.” Id. at 1541
(internal quotation marks omitted).
¶18 In the present case, the court of appeals found that
counsel’s statements to Mr. Rojas-Martinez that he “might or
might not be deported” was an affirmative misrepresentation and
was therefore subject to the exception to the collateral rule.

No. 20030668 8
See State v. Rojas-Martinez, 2003 UT App 203, ¶ 10. This
determination had the practical effect of merging within it the
analysis of the first Strickland prong, whether the attorney’s
performance fell below an “objective standard of reasonable
professional judgment,” and the court of appeals inevitably found
that it did. Id.
II. WE ADOPT THE COLLATERAL CONSEQUENCE RULE AND THE
AFFIRMATIVE MISREPRESENTATION EXCEPTION TO IT
¶19 We take seriously the gravity of the consequences of
deportation, a sanction that can be the “equivalent of banishment
or exile.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (citing
Delgadillo v. Carmichael, 332 U.S. 388 (1947)). Additionally,
even “[t]hough deportation is not technically a criminal
proceeding, it visits a great hardship on the individual and
deprives him of the right to stay and live and work in this great
land of freedom.” Reno v. Am. Arab Anti-Discrimination Comm.,
525 U.S. 471, 497-98 (1999) (referring to Bridges v. Wixon, 326
U.S. 135, 154 (1945)). Deportation is especially harsh when it
interferes with familial relationships. Santosky v. Kramer, 455
U.S. 745, 787 (1982) (“Few consequences of judicial action are so
grave as the severance of natural family ties.”). Mr. Rojas-
Martinez has three children who are citizens of the United
States, and his wife has applied for lawful permanent alien
status. We are not insensitive to the reality that Mr. Rojas-
Martinez’s deportation will work a hardship on his family.
¶20 Our recognition of the harsh realities of deportation
does not, however, persuade us that counsel representing a
defendant facing potential deportation owes her client the duty
to affirmatively and correctly advise the client of the
implications of a guilty plea on the right of the defendant to
continue to reside in the United States. We therefore adopt the
rule outlined in McFadden that deportation is a collateral
consequence of the criminal process and that defense counsel’s
failure to advise a defendant about all possible deportation
consequences does not amount to ineffective assistance of
counsel. 884 P.2d at 1304-05. We also embrace the exception to
the collateral consequence rule when attorneys affirmatively
misrepresent the deportation consequences of a guilty plea.
III. THE EXCEPTION TO THE COLLATERAL CONSEQUENCE RULE DOES NOT
APPLY TO THE STATEMENTS COUNSEL MADE TO MR. ROJAS-MARTINEZ
¶21 Mr. Rojas-Martinez was “informed . . . that [a] guilty
plea and conviction could lead to deportation, but it might or
might not.” Unmistakable themes of this statement are

9 No. 20030668
uncertainty and equivocation. In our view, however, the
uncertainty expressed in counsel’s statement should not
overshadow its central topic: that the entry of a guilty plea
carried the risk of deportation. Focusing on the equivocal
nature of counsel’s statement, the court of appeals concluded
that anything less than an accurate communication of the virtual
inevitability of Mr. Rojas-Martinez’s deportation under the
provision of the 1996 amendments to the Immigration and
Naturalization Act would amount to an affirmative
misrepresentation and therefore fall within the exception to the
collateral consequence rule. We disagree.
A. Mr. Rojas-Martinez’s Counsel Made No Affirmative
Misrepresentations
¶22 Our reasons for departing from the court of appeals’s
conclusion that the advice given by Mr. Rojas-Martinez’s counsel
satisfied the exception of the collateral rule can be largely
explained by the differing lessons we draw from cases from other
jurisdictions that take up the collateral consequence question.
Of these cases, we will confine our discussion to Roberti v.
State, 782 So. 2d 919, 920 (Fla. Dist. Ct. App. 2001); People v.
Soriano, 240 Cal. Rptr. 328, 336 (1987); and United States v.
Couto, 311 F.3d 179, 188 (2d Cir. 2002), as they seem most
directly applicable to the present circumstance.
¶23 First, Roberti was used by the court of appeals to
support the conclusion that ineffective assistance of counsel may
exist even if incorrect advice is offered regarding a collateral
matter. See Rojas-Martinez, 2003 UT App 203, ¶ 8. The defendant
in Roberti did not allege that his counsel failed to state that
his plea could subject him to the act, but that counsel
affirmatively misadvised him that it would not. Roberti, 782
So. 2d at 920. Mr. Roberti’s counsel affirmatively advised him
that he was free of deportation risk. Mr. Rojas-Martinez was, by
contrast, advised that he faced the risk of deportation.
¶24 Next, the court of appeals relied on Soriano, a case
that does feature an equivocal expression of risk. The court of
appeals characterized Soriano as an example of “finding counsel
ineffective where counsel merely warned defendant there ‘might be
immigration consequences to his guilty plea.’” Rojas-Martinez,
2003 UT App 203, ¶ 8 (emphasis added) (quoting Soriano, 240 Cal.
Rptr. at 336). Mr. Soriano pleaded guilty in exchange for the
judge’s recommendation of probation and reduced jail time. The
trial court informed him that “his guilty plea could have
immigration consequences.” Soriano, 240 Cal. Rptr. at 330.
Mr. Soriano claimed that his counsel told him on two separate

No. 20030668 10
occasions that he would not be deported. Id. at 334. However,
defense counsel stated that her statements to Mr. Soriano were
identical to those made by the court: that there could be
immigration consequences to Mr. Soriano’s guilty plea, as
outlined in section 1016.5 of the California Penal Code. Id. at
336. The California Court of Appeals ruled that Mr. Soriano had
received what amounted to a pro forma caution about the
immigration sanctions that might attend his guilty plea, thus
depriving him of effective assistance of counsel. Id.
¶25 At the outset, we take note of our reluctance to
concede that the Soriano court correctly concluded that counsel’s
accurate, but incomplete, description of the potential
immigration penalties that awaited Mr. Soriano upon the entry of
his guilty plea constituted an affirmative misrepresentation
within the contemplation of the exception to the collateral
consequence rule. That said, while the statements made to
Mr. Soriano could fairly be interpreted to have alerted him to
risk, it was an unspecified risk of “immigration consequences.”
Id. Soriano is distinguishable from the present case, as the
advice given in Soriano left the defendant to guess what the
legal consequences of a guilty plea might be. Mr. Rojas-
Martinez, however, was clearly informed about what was at stake.
His guilty plea “could lead to deportation.” Rojas-Martinez,
2003 UT App 203, ¶ 2. The information about the nature of the
risk given to Mr. Rojas-Martinez was materially different from
that given to Mr. Soriano.
¶26 Finally, the court of appeals turned to Couto to shore
up its conclusion that “an affirmative misrepresentation by
counsel as to the deportation consequences of a guilty plea is
. . . objectively unreasonable.” Rojas-Martinez, 2003 UT App
203, ¶ 8. However, the court of appeals acknowledges that the
Couto court also held that “an attorney’s failure to inform a
client of the deportation consequences of a guilty plea, without
more, does not fall below an objective standard of
reasonableness.” Id. ¶ 7. The defendant in Couto contended that
her attorney advised her to plead guilty to an accusation of
bribing an immigration officer to avoid jail time. He further
advised her that they could deal with her immigration problem
after the plea was entered. Couto, 311 F.3d at 183. Counsel
also told Ms. Couto that there were many things she could do to
avoid being deported and, at the hearing, no mention was made of
possible deportation consequences. Id. At no time was Ms. Couto
informed that the amendments to federal law rendered her
automatically deportable after pleading guilty to the offense.
Id. at 183-84. The Couto court analyzed whether the defendant’s

11 No. 20030668
plea was knowing and voluntary, and found it was not, due to
ineffective assistance of counsel. Id. at 187.
¶27 Like Roberti, Couto can be distinguished from
Mr. Rojas-Martinez’s circumstances by the reasons that the
attorney in Couto not only failed to inform the client of the
deportation consequences of a guilty plea, but affirmatively told
her that she could make herself non-deportable. Mr. Rojas-
Martinez received no such misleading advice.
¶28 These cases reinforce our view that the inquiry into
whether a defendant should be eligible for relief under the
affirmative misrepresentation exception to the collateral
consequence rule properly centers on whether a communication made
by counsel misrepresented the sanction to which the client was
exposed and whether the statement identified the existence and
degree of risk that the guilty plea will cause the sanction to be
visited on the client. Mr. Rojas-Martinez was specifically
advised that what was at stake was deportation. The question
that we answer is whether Mr. Rojas-Martinez’s counsel’s
characterization of the risk of deportation fell below an
objective standard of reasonable professional judgment.
¶29 We do not believe that any erroneous statement of
deportation risk would inevitably amount to an affirmative
misrepresentation. In this respect, we depart from the view of
the court of appeals, which makes anything short of an
unequivocal expression of the certainty of deportation eligible
for treatment under the exception to the collateral consequence
rule. Our assessment of whether counsel’s description of
deportation risk amounted to an affirmative misrepresentation is
a practical one, but one which unavoidably strays into the realm
of part two of the Strickland test because it measures the
statement’s qualifications as an affirmative misrepresentation
against the reasonable effect the characterization of risk would
have had on Mr. Rojas-Martinez. Our test thus impliedly weighs
the prejudice, if any, that was likely caused by understating
Mr. Rojas-Martinez’s risk of deportation. We do not apologize
for collapsing the Strickland tests in this setting. It is
necessary to coherently evaluate whether an understatement of the
risk of deportation was substantial enough to be an affirmative
misrepresentation.
¶30 We are mindful that Mr. Rojas-Martinez submitted an
affidavit in which he stated that he “would not have pleaded
guilty” and “would have gone to trial [to] prove [his] innocence”
had he known that he would be automatically deported. Rojas-
Martinez, 2003 UT App 203, ¶ 11. His assertions are not,

No. 20030668 12
however, dispositive in the context of the objective standard to
be applied to counsel’s performance under the first Strickland
test. Put another way, counsel’s statement of Mr. Rojas-
Martinez’s risk of deportation should be evaluated by asking
whether, viewed objectively, the statement departed so far from
the correct statement of risk that it would cause the reasonable
client to choose a course of action other than that which he
would have chosen had he been given an accurate account of the
risk. Assessed in this way, the statement of risk made by
Mr. Rojas-Martinez’s counsel is not an affirmative
misrepresentation. Even were we to assume that counsel
understated Mr. Rojas-Martinez’s risk of deportation by half,
reducing it from a certainty to a 50-50 proposition, we believe
that the possibility that a defendant’s ability to reside in the
United States turned on the toss of a coin imparts more than
enough gravity to the risk of deportation. So a guilty plea
entered based on a 50-50 proposition would not differ in its
calculation of the importance of deportation consequences than
would a plea based on a precise statement of deportation risk.
C. Reliance on I.N.S. v. St. Cyr is Misplaced
¶31 Mr. Rojas-Martinez relies on the Supreme Court decision
in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), to advance claims that
deportation is no longer a collateral consequence of a guilty
plea and that there now exists a constitutionally mandated
requirement to provide a defendant accurate information regarding
the immigration consequences of his plea. St. Cyr stands for
neither proposition.
¶32 St. Cyr involved the deportation of a Haitian citizen
who pleaded guilty, pursuant to a plea agreement, to selling a
controlled substance. 533 U.S. at 293, 320, 321-22. At the time
of his plea, immigration law made Mr. St. Cyr eligible for a
waiver of deportation at the discretion of the Attorney General.
Id. However, actual removal proceedings were not commenced until
after a change in the law became effective that removed the
Attorney General’s discretion to grant waivers to individuals in
the defendant’s situation. Id. The Supreme Court was faced with
the question of whether the waiver prohibition could be
retroactively applied to deny Mr. St. Cyr a waiver. The Supreme
Court held that it could not.
¶33 The Supreme Court noted that prior to the enactment of
the new law, waivers were frequently granted, and would have been
“one of the principal benefits sought by defendants deciding
whether to accept a plea offer or instead proceed to trial.” Id.
at 323. In a footnote, the Court added that even if the

13 No. 20030668
defendant was not initially aware of the provision allowing for a
waiver, “competent defense counsel, following the advice of
numerous practice guides, would have advised the client of the
provision’s importance,” as waivers were frequently granted. Id.
at 323 n.50 (emphasis added).
¶34 Mr. Rojas-Martinez seizes on this aspirational language
and attempts to recast it as creating a constitutional standard
of care applicable to attorneys who counsel alien criminal
defendants. We disagree. The practice admonitions offered by
the Supreme Court, which we fully endorse, were invoked to
underscore the injustice that would result if Mr. St. Cyr were
denied access to a waiver of deportation because of the
retroactive application of the amended statute after having not
been informed of the yet-to-be-enacted waiver prohibition by his
counsel before he entered his guilty plea. The practice
standards referenced by the Supreme Court were not accompanied by
any language that would suggest that it was the Court’s intention
to cloak these practice guidelines in constitutional garb.
¶35 Because we have held that Mr. Rojas-Martinez’s
counsel’s statements concerning the deportation risk of
Mr. Rojas-Martinez’s guilty plea was a collateral consequence not
eligible for consideration under the affirmative
misrepresentation exception, they fall short of satisfying the
first prong of the Strickland test. Therefore, we need not take
up the State’s challenge to the court of appeals’s determination
that Mr. Rojas-Martinez satisfied the prejudice requirement of
Strickland.
CONCLUSION
¶36 We hold that Mr. Rojas-Martinez’s counsel did not
provide ineffective assistance of counsel when he stated that
Mr. Rojas-Martinez was at risk of deportation if he entered a
guilty plea. We therefore reverse the decision of the court of
appeals and reaffirm the decision of the trial court.
---
¶37 Associate Chief Justice Wilkins, Justice Durrant, and
Justice Parrish concur in Justice Nehring’s opinion.
---
DURHAM, Chief Justice, dissenting:
¶38 Although I concede this to be a close call, I
respectfully dissent. I disagree that Mr. Rojas-Martinez was
properly informed about what the legal consequences of a guilty

No. 20030668 14
plea were. The language “could lead to deportation” does not
communicate the fact that the plea automatically resulted in
deportation status as a matter of law. It creates the impression
that deportation is only possible, not legally mandated. For
that reason, I agree with the court of appeals that this case
more closely resembles United States v. Couto, 311 F.3d 179 (2d
Cir. 2002), where the defendant was not informed that her plea
rendered her automatically deportable. This defendant likewise
became automatically deportable as a result of his plea, and the
suggestion that the plea “could lead to deportation” was
therefore inaccurate.
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