Collazo-Collazo v. State

2015 UT App 111
_________________________________________________________

THE UTAH COURT OF APPEALS

JUAN CARLOS COLLAZO-COLLAZO,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.

Memorandum Decision
No. 20131126-CA
Filed April 30, 2015

Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 120402000

German T. Flores, Attorney for Appellant

Sean D. Reyes and Andrew F. Peterson,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES MICHELE M. CHRISTIANSEN and KATE
A. TOOMEY concurred.

VOROS, Judge:

¶1 Juan Carlos Collazo-Collazo pled guilty to a single count
of possession of a controlled substance with intent to distribute,
a second degree felony. He filed a postconviction petition
alleging ineffective assistance of counsel because his counsel
failed to advise him of the immigration consequences of his plea.
The district court denied the petition on summary judgment on
the ground that Collazo-Collazo was advised of the immigration
consequences of the plea and that, in any event, he suffered no
prejudice. We affirm.
Collazo-Collazo v. State

¶2 In 2012, Collazo-Collazo and a companion drove from
Arizona to Provo, Utah, with two pounds of methamphetamine
hidden in the insulation of a cooler. Utah County law
enforcement officers received a tip that Collazo-Collazo and his
companion planned to distribute the drugs. Officers executed a
search warrant at the motel where the two men were staying. A
police dog detected the methamphetamine, and officers arrested
both men. Collazo-Collazo admitted knowing about the drugs.
Although he claimed to have been ‚only along for the ride,‛
Collazo-Collazo drove the car at least part of the trip and
admitted to police that he possessed the drugs with intent to
distribute.

¶3 Collazo-Collazo was charged with possession with intent
to distribute a controlled substance in a drug-free zone, a first
degree felony, and possession of drug paraphernalia in a
drug-free zone, a class A misdemeanor. He pled guilty to a
single count of possession of a controlled substance with intent
to distribute, a second degree felony.

¶4 During the plea colloquy, Collazo-Collazo’s trial counsel
confirmed that Collazo-Collazo was a legal resident and that
counsel had explained the immigration consequences of a plea to
his client. Counsel further explained that the plea would put
Collazo-Collazo ‚at some risk‛ of deportation, but that
Immigration and Customs Enforcement had not yet shown any
‚interest‛ in the case. The district court then asked
Collazo-Collazo whether he understood that ‚there could
possibly be some [i]mmigration consequences.‛ Collazo-Collazo
responded, ‚Yes, sir.‛

¶5 Collazo-Collazo subsequently filed a petition for
postconviction relief alleging that trial counsel rendered
ineffective assistance by not advising him of the plea’s
immigration consequences. The State moved for summary
judgment. The district court granted the motion. It ruled that
counsel did not perform deficiently, because the record reflects

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that counsel told Collazo-Collazo that he was ‚at some risk‛ of
deportation. The district court then ruled that even if counsel
had performed deficiently, Collazo-Collazo suffered no
prejudice. The court noted that Collazo-Collazo had neither
pleaded nor proffered evidence suggesting that had he known
about the risk of deportation he would have insisted on a trial.
The district court further ruled that, given the evidence weighing
against him, ‚a decision to reject the plea bargain here would
have been irrational.‛ It concluded, ‚Collazo-Collazo faced no
option that eliminated the risk of deportation, and thus he was
forced to make his choices based solely on the weight of the
direct consequences of his plea.‛

¶6 On appeal Collazo-Collazo contends that the district court
erred in granting the State’s motion for summary judgment. He
argues that trial counsel’s failure ‚to advise him of the
immigration consequences—including the real risk of
deportation—of his guilty plea constitutes ineffective assistance
of counsel because it falls below an objective standard of
reasonable professional behavior for any criminal defense
attorney.‛ The State responds that the district court properly
granted summary judgment because ‚*t+he undisputed facts in
the criminal record demonstrated that counsel advised
Collazo-Collazo on the record that he was ‘at some risk’ of
negative immigration consequences.‛

¶7 Summary judgment is appropriate when ‚the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.‛ Utah R. Civ. P. 56(c). We
review a district court’s ‚legal conclusions and ultimate grant or
denial of summary judgment for correctness, and view[] the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party.‛ Orvis v. Johnson, 2008
UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks
omitted).

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¶8 To succeed on an ineffective-assistance-of-counsel claim,
an appellant must show that (1) ‚counsel’s performance was
deficient in that it ‘fell below an objective standard of
reasonableness’‛ and (2) ‚counsel’s performance was prejudicial
in that ‘there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’‛ Menzies v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d
480 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)). An appellant must rebut ‚a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.‛ Strickland, 466 U.S. at 689. ‚*P]roof of
ineffective assistance of counsel cannot be a speculative matter
but must be a demonstrable reality.‛ Allen v. Friel, 2008 UT 56,
¶ 21, 194 P.3d 903 (alteration in original) (citation and internal
quotation marks omitted). In the deportation context, counsel
performs effectively so long as she, among other things,
‚inform*s+ her client whether his plea carries a risk of
deportation.‛ Padilla v. Kentucky, 559 U.S. 356, 374 (2010)
(emphasis added).

¶9 We agree with the district court that trial counsel
performed adequately under these standards. During the plea
colloquy, counsel confirmed that Collazo-Collazo was a legal
resident and that counsel had explained the immigration
consequences of a guilty plea to his client. Collazo-Collazo
concedes that when counsel explained that the plea would put
him ‚at some risk,‛ the risk referred to was the risk of
deportation. In addition, during the plea hearing the district
court asked Collazo-Collazo whether he understood that ‚there
could possibly be some [i]mmigration consequences.‛
Collazo-Collazo responded, ‚Yes, sir.‛ Because counsel satisfied
his obligation to inform his client about the ‚risk of
deportation,‛ Collazo-Collazo has failed to show that counsel
performed deficiently. See id.; see also Ramirez-Gil v. State, 2014
UT App 122, ¶ 10, 327 P.3d 1228. Accordingly, the district court
correctly granted summary judgment on the element of deficient
performance.

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¶10 Collazo-Collazo has also failed to show prejudice. To
show prejudice in the plea-bargain context, an appellant ‚must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.‛ Hill v. Lockhart, 474 U.S. 52, 59 (1985);
see also Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994). To show
a reasonable probability that he would have gone to trial, an
appellant must show ‚that a decision to reject the plea bargain
would have been rational under the circumstances.‛ Padilla, 559
U.S. at 372. An appellant’s ‚’mere allegation that he would have
insisted on trial but for his trial counsel’s errors, although
necessary, is ultimately insufficient to entitle him to relief.
Rather, we look to the factual circumstances surrounding the
plea to determine whether [defendant] would have proceeded to
trial.’‛ Rhinehart v. State, 2012 UT App 322, ¶ 6, 290 P.3d 921
(alteration in original) (quoting United States v. Clingman, 288
F.3d 1183, 1186 (10th Cir. 2002)).

¶11 Collazo-Collazo has not demonstrated that a decision to
reject the plea bargain would have been rational under the
circumstances. Collazo-Collazo argues that because ‚there was
ample evidence to suggest [he] did not know about the drugs
and had no intent to distribute them,‛ had counsel properly
advised him about the deportation consequences of his plea,
Collazo-Collazo ‚would have taken the case to trial and a jury
would have ample basis to conclude he was not guilty.‛

¶12 That is not how we read the record. Police recovered two
pounds of methamphetamine in a lined cooler that
Collazo-Collazo knowingly transported from Arizona to Utah.
Collazo-Collazo invites us to ‚disregard the State’s repeated
reference . . . to the supposed fact that [he] was aware of the
drugs in the car and intended to distribute them‛ because the
statements ‚are the very product of . . . *counsel’s+ ineffective
assistance.‛ But the record shows that before any charges were
filed—and thus before counsel appeared in the case—
Collazo-Collazo told police that he knew about the drugs and

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that he intended to distribute them. This confession was not the
product of any act on the part of counsel. And Collazo-Collazo
has not shown why, on the facts of this case, his confession did
not make conviction at trial all but inevitable.

¶13 Given the weight of the evidence against him,
Collazo-Collazo rationally exchanged a greater offense, an
additional offense, and longer incarceration for a lesser criminal
penalty carrying no greater deportation consequences. See
Ramirez-Gil, 2014 UT App 122, ¶ 13. In short, we agree with the
district court that Collazo-Collazo did not suffer prejudice
because he ‚faced no option that eliminated the risk of
deportation, and thus he was forced to make his choices based
solely on the weight of the direct consequences of his plea.‛
Accordingly, the district court correctly granted summary
judgment on the element of prejudice.

¶14 The judgment of the district court is affirmed.

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