September 16, 2019- State of New Mexico v. Elena Chavez-Chavez, No. A-1-CA-36983

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-36983	4
ELENA CHAVEZ-CHAVEZ,	5
Defendant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	7
Douglas R. Driggers, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
M. Victoria Wilson, Assistant Attorney General	11
Albuquerque, NM	12
for Appellant	13
Noble & Vrapi, P.A.	14
Lauren L. Armstrong	15
Las Cruces, NM	16
for Appellee	17
MEMORANDUM OPINION	18
HANISEE, Judge.	19
{1} 	The State of New Mexico appeals a district court order granting Defendant	20
Elena Chavez-Chavez’s Rule 5-803 NMRA petition and permitting her to withdraw	21
her no-contest plea to three criminal counts, including the felony charge of	22
aggravated assault, contrary to NMSA 1998 Section 30-3-13(A)(1) (1995), “on the	23
Court of Appeals of New Mexico
Filed 9/16/2019 8:24 AM

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basis 	of 	constitutional 	and 	procedural 	defects 	in 	the 	underlying 	criminal	1
proceedings.” Those defects derive from her lawyer’s ineffective assistance of	2
counsel, specifically his “erroneous advice to Defendant regarding the immigration	3
consequences of her plea.” Having carefully reviewed the record and considered the	4
parties’ arguments on appeal, we affirm the district court’s order and only briefly	5
explain. See Rule 12-405(B) NMRA (providing that appellate courts may dispose of	6
a case by non-precedential order, decision, or memorandum opinion under certain	7
circumstances).	8
DISCUSSION	9
{2} 	Because the parties are familiar with the facts of this case, we do not restate	10
them at length in this memorandum opinion. See State v. Gonzales, 1990-NMCA-	11
040, ¶ 48, 110 N.M. 218, 794 P.2d 361 (“[M]emorandum opinions are not meant to	12
be cited as controlling authority because such opinions are written solely for the	13
benefit of the parties” and “[s]ince the parties know the detail of the case, such an	14
opinion does not describe at length the context of the issue decided[.]”). The State	15
argues on appeal that Defendant failed to show that her counsel’s deficient	16
performance caused her prejudice sufficient to withdraw her plea. Defendant	17
responds that she has shown prejudice because she would have refused to enter the	18
plea and instead insisted on a trial had she known that her no-contest plea would	19
affect her application for cancellation of removal before the immigration court.	20

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“Because a motion to withdraw a guilty plea connected to an allegation of ineffective	1
assistance of counsel is a mixed question of law and fact,” we review de novo. State	2
v. Gallegos-Delgado, 2017-NMCA-031, ¶ 11, 392 P.3d 200.	3
{3} 	Here, our review is simplified by the parties’ agreement that the district court	4
properly 	found 	that 	Defendant’s 	plea 	counsel 	provided 	erroneous 	advice 	to	5
Defendant regarding the immigration consequences of her plea. Consequently, we	6
need only address the district court’s conclusion that “the deficient performance	7
prejudiced the defense.” State v. Carlos, 2006-NMCA-141, ¶ 10, 140 N.M. 688, 147	8
P.3d 897 (internal quotation marks and citation omitted). Our review of the record,	9
which includes extensive briefing by the parties, numerous exhibits, and a sworn	10
affidavit from Defendant containing further facts along with her assertion that she	11
would 	not 	have 	proceeded 	with 	her 	plea 	had 	she 	correctly 	understood 	the	12
immigration consequences of her admission, supports the district court’s order. The	13
record establishes, among other facts we do not reiterate in this opinion, that	14
Defendant spent most of her life in the United States, is the mother of a young child	15
who resides in New Mexico, Defendant was attending high school in the United	16
States, and her immediate family also lives in the United States. The record presents	17
ample facts which, considered in sum, establish that Defendant suffered prejudice	18
because 	her 	lawyer 	did 	not 	appropriately 	forewarn 	her 	of 	the 	immigration	19
consequences of entering the plea, as our precedents require. We conclude the record	20

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before us supports the district court’s determination. See State v. Favela, 2015-	1
NMSC-005, ¶ 11, 343 P.3d 178 (“In cases involving plea agreements, prejudice is	2
proven where the defendant demonstrates ‘that there is a reasonable probability that,	3
but for counsel’s errors, he or she would not have pleaded guilty and would have	4
insisted on going to trial.’ ”); State v. Paredez, 2004-NMSC-036, ¶ 20, 136 N.M.	5
533, 101 P.3d 799 (alteration omitted). Here, our review of the record does not reveal	6
that the district court wrongly permitted Defendant to withdraw her plea given the	7
faulty advice she received and the ensuing prejudice demonstrated by Defendant in	8
district court. To conclude such we would have to focus exclusively on the strength	9
of the State’s case or the plea agreement itself, and to substitute our judgment for	10
that of the district court. This we will not do. See State v. Tejeiro, 2015-NMCA-029,	11
¶ 14, 345 P.3d 1074 (New Mexico courts have adopted “a broad approach to how a	12
defendant can demonstrate prejudice[,]” which “focuses on the rationality of	13
rejecting the plea offer rather than the [s]tate’s evidence or a defendant’s maximum	14
exposure compared to the actual offer.”).	15
CONCLUSION	16
{4} 	Based substantially on the district court’s order concluding that Defendant	17
was not properly informed of the immigration consequences of her plea, and the	18
established record of prejudice resulting from this error, we affirm.	19

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{5} 	IT IS SO ORDERED.	1
_____________________________	2
J. MILES HANISEE, Judge	3
WE CONCUR:	4
___________________________	5
KRISTINA BOGARDUS, Judge	6
___________________________	7
ZACHARY A. IVES, Judge	8