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Najera v. State

Intermediate Court of Appeals of Hawaii

February 13, 2018

JORGE NAJERA, Petitioner-Appellant,
v.
STATE OF HAWAI'I, Respondent-Appellee.

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (S.P.P. NO. 12-1-0012(1) (CR. NO. 10-1-0026(1))

          Gerald Johnson for Petitioner-Appellant

          Richard K. Minatoya Deputy Prosecuting Attorney County of Maui for Respondent-Appellee

          NAKAMURA, CHIEF JUDGE, AND FUJISE, J., WITH REIFURTH, J., DISSENTING

          OPINION

          NAKAMURA, CHIEF JUDGE

         Petitioner-Appellant Jorge Najera (Najera) is a citizen of Mexico. He was born in Mexico, but came to Hawai'i with his uncle when he was ten years old. He married a United States citizen in 1999 and became a permanent resident alien in 2001, when he was twenty years old. Najera and his wife have four children.

         In 2010, Najera was charged with drug offenses, including the main charge of attempted methamphetamine trafficking in the first degree that carried significant mandatory imprisonment. Pursuant to a plea agreement, Najera pleaded no contest to drug charges that enabled him to avoid mandatory imprisonment, but still subjected him to automatic deportation. Najera was sentenced, served a one-year term of incarceration, and then was placed in deportation proceedings. Najera filed a petition to set aside his convictions (Petition) pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40 (2006). Najera asserted that he received ineffective assistance of counsel because his trial counsel did not advise him that his no contest pleas would subject him to automatic deportation and that had he received this advice, he would not have pleaded no contest. Najera also stated that he never told his counsel that he was not a citizen. The Circuit Court of the Fifth Circuit (Circuit Court)[1] ruled that Najera had failed to state a colorable claim for relief and denied his petition without a hearing.[2]

         The question presented in this appeal is whether Najera's failure to inform his counsel that Najera was not a citizen absolved counsel of the obligation to advise Najera that his no contest pleas would subject him to automatic deportation. We conclude that the answer to this question is "no." We conclude that Najera's ineffective assistance of counsel claim raised a colorable claim for relief, and therefore, the Circuit Court erred in denying Najera's Petition without a hearing. We remand the case for a hearing to determine whether the representation provided by Najera's counsel was deficient and whether absent counsel's alleged deficient performance, there is a reasonable possibility that Najera would not have pleaded no contest.

         BACKGROUND

         I.

         Najera was born in Mexico. He is not a United States citizen. In about 1991, when Najera was ten years old, he came with his uncle to Maui from Juarez, Mexico. When Najera was fourteen, he was abandoned by his uncle and was placed in foster care. He attended high school on Maui and married a United States citizen in 1999. In 2001, when Najera turned twenty, he became a permanent resident alien of the United States.

         In January 2010, the State of Hawai'i (State) charged Najera by indictment with attempted first-degree methamphetamine trafficking (Count 1); prohibited acts related to drug paraphernalia (Count 2); and second-degree promoting a detrimental drug (Count 3). Najera's attempted first-degree methamphetamine trafficking charge carried a mandatory indeterminate twenty-year term of imprisonment, a mandatory minimum term of imprisonment of between two and eight years, and a fine of up to $2 million. See Hawaii Revised Statutes (HRS) § 712-1240.7(3) (Supp. 2009). The charges against Najera stemmed from evidence obtained pursuant to the execution of search warrants on Najera's home, truck, and person, and Najera's consent to search another vehicle. During these searches, the police recovered 19.46 grams of purported crystal methamphetamine, over 170 grams of purported marijuana vegetation, three marijuana plants, and an assortment of drug paraphernalia.

         A Deputy Public Defender (DPD) was appointed to represent Najera. The State and Najera subsequently entered into a plea agreement, which called for: (1) Najera to plead no contest to an amended charge of first-degree promoting a dangerous drug instead of attempted first-degree methamphetamine trafficking, in Count 1; (2) Najera to plead no contest as charged to Counts 2 and 3; (3) the State to recommend a sentence of ten years of probation; and (4) Najera to stipulate to one year of imprisonment as a condition of probation and not to move for sentencing under "Act 44"[3] or for a deferred acceptance of no-contest plea. By pleading no contest to first-degree promoting a dangerous drug instead of attempted first-degree methamphetamine trafficking, Najera would still be exposed to a maximum indeterminate twenty-year term of incarceration, but the Circuit Court would have the option of sentencing Najera to probation, rather than a mandatory indeterminate twenty-year term of incarceration, and there would be no mandatory minimum term of incarceration.

         In May 2011, Najera pleaded no contest pursuant to the plea agreement. During the plea colloquy, the Circuit Court advised Najera: "And if you're not a citizen you're possibly looking at consequences of deportation, exclusion from admission to the United States, or denial naturalization [sic] under the laws of the United States. Do you understand?" Najera responded: "Yes, your Honor." The No Contest Plea form which Najera signed also stated:

10. I know that, if I am not a citizen of the United States, a conviction or a plea of guilty or no contest, whether acceptance of my plea is deferred or not, may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.

         The Circuit Court found that Najera's no contest pleas were validly entered, accepted his pleas, and found him guilty of the amended charge in Count 1 and guilty as charged in Counts 2 and 3. The Circuit Court required the preparation of a presentence investigation and report prior to sentencing.

         The presentence report contained information indicating that Najera was not a citizen. The report identified Najera's birthplace as "Mexico"; the space after "US Citizen:" was left blank on Najera's "Hawaii Criminal Justice Inquiry-Full Rap Sheet" contained in the report; and the "Family Background" section of the report noted that sometime prior to 2004, Najera was arrested and taken to Los Angeles "where he awaited deportation proceedings, " but was released to the custody of the parents of his then girlfriend (who later became his wife). Najera did not move to withdraw his plea after the presentence report was prepared, and the case proceeded to sentencing.

         The Circuit Court sentenced Najera on August 3, 2011. Consistent with the State's recommendation in the plea agreement, the Circuit Court sentenced Najera to ten years of probation, subject to the condition that he serve one-year in prison. Najera did not file a direct appeal from his judgment.

         II.

         After Najera completed serving his one-year term of incarceration, he was detained by immigration authorities and placed in deportation proceedings. On December 10, 2012, Najera filed his Petition pursuant to HRPP Rule 40 to set aside his convictions. In his Petition, Najera claimed that the DPD who represented him in his criminal case failed to provide him with effective assistance of counsel because counsel had failed to warn him of the direct immigration consequences of his no contest pleas. In particular, Najera claimed that his counsel did not advise him, and he did not know, that by entering his no contest pleas, "he would be subject to automatic deportation." Najera alleged that if he had been advised of the immigration consequences of his no contest pleas, he would not have pleaded no contest and "would have instead presented [his] defenses at trial."

         Najera stated that he "never told [his trial counsel] that [he] was not a citizen, " and he stated that the issue of his citizenship "was never brought up" during interviews with his counsel. Najera explained his failure to inform his counsel about his noncitizen status by stating that "I presumed my status was fine because I was married and had 4 children." Najera's wife also submitted a declaration in which she stated that: "[M]y husband never told [trial counsel] that he was not a citizen, because we never thought that was an issue." In connection with his Petition, Najera submitted a declaration signed by his trial counsel. In his declaration, trial counsel stated: "At this time, I cannot recall what I advised [Najera] with respect to his change of plea."

         While Najera's Petition was pending in the Circuit Court, Najera was deported to Mexico. The Circuit Court subsequently denied Najera's Petition without a hearing, and it issued its "Findings of Fact, Conclusions of Law, and Order Dismissing [Najera's Petition]" (Order Denying Petition) on January 2, 2014. The Circuit found that Najera had waived his claim of ineffective assistance of counsel by failing to previously raise it. Alternatively, considering Najera's ineffective assistance of counsel claim on the merits, the Circuit Court found that even assuming the facts alleged in Najera's Petition were true, Najera had ...


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