State Of Washington, Respondent V. Carlos Q. Cisneros, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
CARLOS QUINTERO CISNEROS,
Appellant.
No. 69824-9-
UNPUBLISHED OPINION
FILED: 	April 25, 2016
VERELLEN, C.J. - Carlos Quintero Cisneros pleaded guilty to assault of a
child in the third degree with sexual motivation. He later moved to withdraw the plea,
claiming ineffective assistance of counsel. 	After conducting an evidentiary hearing,
the trial court rejected Quintero Cisneros's claims and found that counsel had
advised Quintero Cisneros of the immigration consequences of his plea. 	Because
substantial evidence supports the trial court's decision, we affirm.
FACTS
On September 10, 2008, the State of Washington charged Quintero Cisneros
with one count of rape of a child in the third degree. 	After being advised of his
Miranda1 rights, Quintero Cisneros admitted that he had sexual intercourse with a girl
at a Mount Vernon motel, knowing that she was 14 or 15 years old. The Skagit
County Public Defender's Office assigned Robert Roth as Quintero Cisneros's
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 69824-9-1/2
attorney. 	Roth determined that the charge would result in automatic deportation and
explored alternative charges that might not result in deportation.
On October 13, 2008, Erin Dyer, the deputy prosecuting attorney, e-mailed
Roth the State's offer to amend the original charge to assault of a child in the third
degree with sexual motivation. 	Roth discussed the State's offer with Quintero
Cisneros on at least two occasions during the following months.
On January 29, 2009, Quintero Cisneros entered an Alford2 plea to one count
of assault of a child in the third degree with sexual motivation. 	During the plea
colloquy, Quintero Cisneros acknowledged that he had no questions about the
procedure and that he had thoroughly read the plea statement. The court sentenced
Quintero Cisneros to 13 months confinement and 36 to 48 months of community
custody.
In 2010, the federal government initiated removal proceedings against
Quintero Cisneros. 	On July 19, 2012, Quintero Cisneros moved to withdraw his
guilty plea under CrR 7.8(b)(5), alleging ineffective assistance of counsel. 	He
claimed that although Roth may have advised him that the initial child rape charge
would result in deportation, Roth failed to inform him ofthe immigration
consequences of the amended charge of assault of a child in the third degree with
sexual motivation.3 Quintero Cisneros alleged he would not have accepted the plea
offer had he known the assault charge would also result in deportation.
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L Ed. 2d 162 (1970).
3 See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010); State v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011).

No. 69824-9-1/3
The trial court conducted an evidentiary hearing on December 12, 2012. 	Roth
testified that he represented Quintero Cisneros from 2008 to 2009 and was familiar
with immigration issues. Although Roth could not remember specific conversations,
he recalled general discussions with Quintero Cisneros about the State's evidence,
the potential sentence, the plea offer, and immigration consequences.
Roth contacted immigration attorneys at the Washington Defender Association
about Quintero Cisneros's immigration status early in the case. 	During a September
21, 2008 intake appointment, Roth told Quintero Cisneros that a conviction for the
charge of rape of a child in the third degree would result in deportation.
The State advised Roth of the plea offer for assault of a child in the third
degree with sexual motivation on October 13, 2008. 	On November 18, Roth met with
Quintero Cisneros to discuss the offer. 	In his notes of the meeting, Roth recorded
that Quintero Cisneros was considering the State's offer and was "aware of
immigration consequences (deportation/exclusion)."4
Roth emailed the deputy prosecutor on December 31, 2008 that
I anticipate [Quintero Cisneros will] be accepting your offer - I wanted
to give a little time, though. 	First, he realizes that he will be going to
DOC so he is trying to clean up some of his misdemeanor cases
(DWLS cases mostly) before he goes. Also, this charge will
undoubtedly get him deported and I am trying to get some information
from an immigration attorney but I haven't had a lot of success so far.
He's been good about keeping his appointments with me and he
understands he's going to have to deal with this, so he is not trying to
avoid it.[5]
4 Clerk's Papers (CP) at 158 (Finding of Fact 3).
5 CP at 83.

No. 69824-9-1/4
Roth believed the reference to consulting with an immigration attorney involved the
charge of assault of a child in the third degree.
On January 20, 2009, Roth emailed the deputy prosecutorthat Quintero
Cisneros was planning to accept the State's offer on the assault charge. 	Roth asked
the deputy prosecutor for a delay in sentencing so Quintero Cisneros could arrange
for the disposition of his last pending case. 	Roth added, "He's going to get deported
after this so he is trying to settle his other cases before he goes to DOC."6 Roth
testified that the e-mail indicated he had advised Quintero Cisneros that a guilty plea
to the amended charge would result in deportation.
Roth explained that defendants often prefer to plead guilty to an assault
charge "to avoid the stigma of being labeled a rapist or a child molester."7 	Because
there was a victim witness, a possible independent witness, and a recorded
confession, Roth believed there was a high likelihood Quintero Cisneros would be
convicted if he went to trial. 	After sentencing, Quintero Cisneros did not complain
about the plea process or otherwise contact Roth.
Quintero Cisneros testified that he is a resident alien and has lived in the
United States since about 1988, when was three months old. 	He learned English in
school and is able to read and write English.
Quintero Cisneros did not recall Roth telling him anything about immigration
consequences during plea negotiations, either for the original child rape charge or
the amended charge of assault of a child. 	Quintero Cisneros said that he was
6 CP at 84.
7 Report of Proceedings (Dec. 12, 2012) at 22.

No. 69824-9-1/5
confused when he appeared for the plea hearing and did not know which charge
"would benefit me the best."8 He acknowledged that he read the plea documents
himself, but asserted that he did not have enough time to understand them. He
claimed he did not understand there might be immigration problems until a month
after sentencing.
Quintero Cisneros acknowledged that he knew that both the child rape and
assault charges were felony sex offenses. 	He maintained that he decided to plead
guilty to the assault charge primarily for "employment reasons"9 rather than to avoid
the label of "rapist."10
At the conclusion of the hearing, the trial court rejected Quintero Cisneros's
claim that Roth's performance was deficient. 	Relying on Roth's testimony, his
contemporary notes, and e-mails to the deputy prosecutor in response to plea
negotiations, the court found that Roth advised Quintero Cisneros that the amended
charge of assault of a child in the third degree with sexual motivation was a
deportable offense. The court found Quintero Cisneros's allegations to the contrary
not credible. The court noted that Quintero Cisneros repeatedly stated that he
entered a plea to the assault charge for employment reasons, not because he
believed the immigration consequences were different.
The court entered findings of fact, conclusions of law, and an order denying
Quintero Cisneros's motion to withdraw his guilty plea.
8 Id, at 36.
9 Id, at 38-39
10 Id. at 38.

No. 69824-9-1/6
Quintero Cisneros appealed, arguing that the evidence was insufficient to
support the finding that Roth advised him of the immigration consequences of the
plea. 	The State asserted that Quintero Cisneros's motion to withdraw his guilty plea
was an untimely collateral attack.11 	In the alternative, the State argued that the
evidence was sufficient to support the trial court's finding.
On May 12, 2014, this court affirmed the trial court's denial of the motion to
withdraw, agreeing that Quintero Cisneros's collateral attack was untimely.12 The
court's opinion did not address the State's alternative argument.
On November 4, 2015, our Supreme Court granted Quintero Cisneros's
petition for review and remanded for reconsideration in light of In re Personal
Restraint of Tsai.13 	In Isai, the court held that Padilla v. Kentucky constituted a
significant, material, retroactive change in the law that exempts collateral attacks
from the one-year time bar.14 Accordingly, we now address the merits of Quintero
Cisneros's appeal.
ANALYSIS
Quintero Cisneros contends that he is entitled to withdraw his guilty plea
because he was denied effective assistance of counsel during the plea process. To
prevail on an ineffective assistance of counsel claim, the defendant must show that
counsel's performance was deficient and that the defendant was prejudiced by
11 See RCW 10.73.090, .100.
12 state v. Quintero Cisneros, noted at 181 Wn. App. 1006 (2014).
13183Wn.2d91,351 P.3d 138(2015).
14 Id, at 105 (citing Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed.
2d 284 (2010)); see also RCW 10.73.100(6).
6

No. 69824-9-1/7
counsel's deficient performance.15 We review the trial court's decision on a motion to
withdraw a guilty plea for an abuse of discretion.16
Quintero Cisneros contends that counsel's performance was constitutionally
deficient because he failed to advise him that the amended charge of assault of a
child in the third degree with sexual motivation would result in deportation. 	He
argues that the record at the evidentiary hearing was insufficient to support Finding of
Fact 7, which provided that "in testimony on December 12, 2012, Mr. Roth indicated
that he recalled having a conversation on January 20, 2009, specifically regarding
deportation as an immigration consequence of Assault of a Child in the Third Degree
because, in part, he had sent an email to Mr. Dyer afterwards."17 Quintero Cisneros
maintains that Roth's testimony was too equivocal to support the finding. 	He also
relies on the absence of any document in the record informing him of the immigration
consequences of the amended charge and on his own testimony denying Roth told
him he would be deported.
Roth testified that he was able to refresh his recollection by reviewing his
notes and the e-mails he sent to the deputy prosecutor. In an e-mail dated
December 31, 2008, Roth informed the deputy prosecutor that the amended charge
would likely result in deportation and that he was attempting to get some information
is In re Pers. Restraint of Crace. 174 Wn.2d 835, 840, 280 P.3d 1102 (2012)
(citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984)).
16 State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012).
17 CP at 158.

No. 69824-9-1/8
from immigration attorneys. 	Roth recalled contacting immigration attorneys after
sending the e-mail.
On January 20, 2009, Roth met with Quintero Cisneros to discuss the State's
plea offer. 	Roth's notes of the meeting recorded that he "explained immigration and
registration requirements."^ Based on his review of the materials, Roth believed that
he told Quintero Cisneros that he would be deported if he accepted the State's plea
offer. 	Shortly after meeting with Quintero Cisneros, Roth e-mailed the deputy
prosecutor that Quintero Cisneros planned to accept the State's offer but wanted to
delay sentencing so he could resolve one last driving while license suspended
matter. 	Roth explained that "[h]e's going to get deported after this so he is trying to
settle his other cases before he goes to DOC."19
The trial court had before it evidence that Roth contacted immigration
attorneys about the amended charge, discussed the immigration consequences of
the amended charge with Quintero Cisneros, and told Quintero Cisneros that
deportation was a consequence of pleading guilty to assault of a child in the third
degree with sexual motivation. 	Shortly after discussing the plea with Quintero
Cisneros, Roth informed the deputy prosecutor that Quintero Cisneros was
attempting to settle his other cases before sentencing because "[h]e's going to get
18 CP at 158 (Finding of Fact 6).
19 CP at 84.
8

No. 69824-9-1/9
deported after this."20 The trial court found Quintero Cisneros's testimony to the
contrary was not credible, a determination this court cannot review.21
Roth's testimony at the evidentiary hearing, along with his corroborating notes
and e-mails, amply supported the trial court's finding that defense counsel informed
Quintero Cisneros of the immigration consequences of the amended charge and that
Quintero Cisneros was aware of those consequences. 	Because defense counsel's
performance was not deficient, we need not address Quintero Cisneros's claims of
prejudice.22
The trial court did not abuse its discretion in denying Quintero Cisneros's
motion to withdraw his guilty plea.
Affirmed.
WE CONCUR:
S"n	p^/w^ 0~J
20 CP at 84.
2i See State v. Haves, 81 Wn. App. 425, 430, 914 P.2d 788 (1996) (appellate
court defers to trier of fact on issues of conflicting testimony, credibility of witnesses,
and the persuasiveness of the evidence).
22 See State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).