Appeal from Sedgwick District Court; GREGORY L. WALLER, judge.
SYLLABUS BY THE COURT The holding in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010),that the Sixth Amendment to the United States Constitution requires defense counsel to advise a defendant about the risk of deportation arising from a guilty plea does not apply retroactively to a defendant whose conviction became final before Padilla was decided.
The opinion of the court was delivered by: Standridge, J.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
Luis D. Sarabia-Flores appeals from the district court's order denying his post-sentencing motion to withdraw his guilty plea to misdemeanor drug paraphernalia charges. Sarabia-Flores entered his guilty plea in 2002 and filed the motion to withdraw his plea in 2011. Sarabia-Flores contends his counsel at trial was ineffective for failing to advise him of potential immigration consequences arising from his plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010). But after briefing and oral argument in this matter, the United States Supreme Court held in Chaidez v. United States, 568 U.S. __, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149 (2013), that defendants whose convictions became final prior to Padilla cannot benefit from its holding. Because the rule announced in Padilla does not apply retroactively to a defendant whose conviction became final before Padilla was decided, we affirm the district court's decision to deny Sarabia-Flores' motion to withdraw his plea.
In December 2001, Luis D. Sarabia-Flores was charged in Sedgwick County District Court with one count of possession of cocaine. Ultimately, Sarabia-Flores entered a guilty plea to an amended charge of attempted possession of paraphernalia, a class B misdemeanor. Sarabia-Flores was placed on 12 months' probation with an underlying jail term of 6 months' incarceration. The plea was entered and sentence was imposed on July 3, 2002. Several months later, Sarabia-Flores violated the terms of his probation and his probation was revoked. He was ordered to serve 60 days in jail, after which his case was terminated.
In March 2011, Sarabia-Flores filed a motion to withdraw his guilty plea in his 2002 case. Sarabia-Flores asserted that he was not a United States citizen and that his attorney failed to advise him of the immigration consequences-automatic deportation- of pleading guilty to a drug-related charge. Sarabia-Flores argued that his attorney was ineffective in failing to advise him of the likelihood of deportation under Padilla and that manifest injustice required he be permitted to withdraw his plea. The State opposed Sarabia-Flores' request for relief on both the procedural ground that the motion was filed out of time and the substantive ground that Sarabia-Flores was unable to establish that permitting him to withdraw the plea would correct a manifest injustice.
In May 2011, the Department of Homeland Security (DHS) issued a notice to appear to Sarabia-Flores alleging that he was in violation of his 1994 entry permit which admitted him to the United States for 72 hours as a visitor. Citing his violation of the terms of his entry and his 2002 conviction, DHS determined that Sarabia-Flores should be detained pending his removal from the country.
On June 3, 2011, the district court held a hearing on Sarabia-Flores' motion to withdraw his plea. As a preliminary matter, the court rejected the State's claim that Sarabia-Flores' motion was time barred. Sarabia-Flores then testified. In his testimony, Sarabia-Flores acknowledged that he did, in fact, enter the United States in 1994 on a border crossing permit limited to 72 hours and thereafter stayed and became an undocumented alien. Sarabia-Flores further testified, however, that during the 2002 case his attorney never asked where he was born or whether he was a United States citizen, and never mentioned that pleading to the paraphernalia charge could have immigration consequences. Sarabia-Flores noted that he did not speak English in 2002 and did not learn of the potential immigration consequences of his plea until December 2010, when he went to an attorney to try to obtain legal status. When he learned his conviction would prevent him from obtaining legal status, Sarabia-Flores hired his present counsel to seek to withdraw his plea. After he appeared for his initial hearing on his motion to withdraw, immigration officials took him into custody.
After hearing the evidence and the parties' oral arguments, the district court denied the motion. Specifically, the district court found the Padilla case did not apply retroactively to Sarabia-Flores' 2002 plea. As a result, the court held trial counsel's performance was not ineffective assistance under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267.