State of Louisiana v. Juan Dedilos Villarreal Gamboa

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-806

STATE OF LOUISIANA
VERSUS

JUAN DEDILOS VILLARREAL GAMBOA

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 19468-18
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville
Wilson, Judges.

AFFIRMED;
REMANDED WITH INSTRUCTIONS.

Douglas Lee Harville

Louisiana Appellate Project

P. O. Box 52988

Shreveport, LA 71135-2988

(318) 222-1700

COUNSEL FOR DEFENDANT/APPELLANT:
Juan Dedilos Villarreal Gamboa

Stephen C. Dwight

District Attorney

John Eric Turner

Assistant District Attorney

Fourteenth Judicial District

901 Lakeshore Drive, Suite 800

Lake Charles, LA 70601

(337) 437-3400

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, after pleading guilty to the charge of aggravated flight from an
officer, appeals his conviction and five-year sentence, which was ordered to run
consecutively with a conviction and five-year sentence imposed under a different
document number. For the reasons set forth herein, we affirm the conviction and
sentence and remand with instructions.

FACTS AND PROCEDURAL HISTORY

On October 26, 2018, Defendant, Juan Dedilos Villarreal Gamboa, was
charged by bill of information in docket number 19468-18 with the offense of
aggravated flight from an officer, in violation of La.R.S. 14:108.1. The bill alleged
that Defendant:

[O]n or about February 22, 2018, being the driver of a motor vehicle,

did intentionally refuse to bring said vehicle to a stop knowing that he

has been given a visual and audible signal to stop by a police officer,

under circumstances wherein human life was endangered, when the

officer has reasonable grounds to believe that the driver has committed

an offense[.]

Defendant was additionally charged under docket number 20757-18 with
aggravated flight from an officer and under docket number 2786-11 with a probation
violation for a prior felony offense.

Defendant is not a citizen of the United States. He initially pled not guilty to
the charges on November 7, 2018, but on March 27, 2019, he withdrew his not guilty
pleas and entered pleas of guilty to all three charges. There was no agreed upon
sentence as to any of the charges. After Defendant pled guilty, the trial court
sentenced him to serve five years of imprisonment at hard labor on each charge, with

the sentence imposed under docket number 19468-18 to run consecutively with that

imposed under docket number 20757-18 and concurrently to that imposed under

docket number 3786-11.' On June 13, 2019, Defendant filed a motion to reconsider
his sentences in all docket numbers. On August 12, 2019, the trial court denied the
motion as untimely but also found that the sentences imposed were appropriate.

On April 9, 2021, Defendant filed an application for post-conviction relief on
the grounds of ineffective assistance of counsel, claiming that his counsel failed to

adequately advise him of the impact his guilty pleas would have on his immigration

status as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010). On
April 1, 2022, the State filed procedural objections to the application for post-
conviction relief, and, on that same date, the trial court stayed Defendant’s
application pending this appeal.

The trial court granted Defendant’s motion for appeal “as it relates to his
sentence, but not his conviction” because Defendant signed a plea form in which he
waived his right to appeal from a verdict of guilty. Regardless of this finding, the

only assignment of error raised on appeal by Defendant relates to his guilty plea.?

' Defendant pled guilty in docket number 20757-18, and his probation was revoked in
docket number 3786-11. Defendant filed appeals in both lower court docket numbers. The appeal
in 20757-18 was lodged with this court as 22-807 and is considered in a separate opinion.
However, the appeal lodged in 3786-11 was dismissed because the judgment at issue was non-
appealable. State v. Gamboa, 22-805 (La.App. 3 Cir. 3/1/23) (unpublished opinion) (2023 WL
2293608).

* Padilla dealt exclusively with a claim of ineffectiveness of counsel. Padilla asserted that
his counsel was ineffective for failing to advise him, an immigrant, that his felony guilty plea could
or would result in his deportation. The Supreme Court granted certiorari “to decide whether, as a
matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which
he was pleading guilty would result in his removal from the country.” Padilla, 559 U.S. at 360.
The Supreme Court held that accepting his allegations as true, Padilla sufficiently alleged
constitutional deficiency to satisfy the first prong of Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984). However, the Court went on to state that whether Padilla was entitled to relief
on his claim would depend on whether he could satisfy Srrickland’s second prong, prejudice, a
matter it left to the lower state court to consider in the first instance.

* The plea form signed by Defendant stated that he waived the right to appeal from a verdict
of guilty, and the trial court informed Defendant that he waived the “right to appeal a verdict of
guilty if you were convicted by a jury, but when you plead guilty you waive ail those rights.” The
language used in the form and by the trial court did not exclude review of the voluntariness of
Defendant’s plea, which is the issue raised in this appeal. However, the trial court merely granted
Defendant the right to appeal his sentence. In State v. Guilbeau, 11-7 (La.App. 3 Cir. 6/22/11), 71
So.3d 1010, this court noted that the defendant’s motion to appeal prayed only for an appeal from

2

On appeal, Defendant raises the following assignment of error:

The record on appeal does not establish that Mr. Gamboa was advised

about the impact his guilty pleas could have on his immigration status

as required by Padilla. Did the Trial Court err when it found that Mr.

Gamboa’s plea was knowing and voluntary?

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that there
iS one error patent. On March 27, 2019, the trial court sentenced Defendant to five
years imprisonment at hard labor in docket number 19468-18, which sentence was
to run consecutively with another sentence of five years imprisonment at hard labor
in docket number 20757-18. According to the transcript of the sentencing, the trial
court specified that the sentence of five years imprisonment applied to “each of those
aggravated flights from an officer.” However, the minutes of sentencing state the
following, in pertinent part:

For oral reasons assigned, as to [docket numbers] 19468-18 and 20757-

18, the Court sentences the defendant to serve five (5) years in the

custody of the Louisiana Department of Corrections, with credit for any

time served from the arrest date of October 17, 2018[,] in accordance

with Article 880 of the Code of Criminal Procedure, to run

consecutively.

Although the minutes mention the docket numbers for both of the aggravated-
flight convictions and state “to run consecutively[,]” the minutes otherwise indicate
that a single five-year sentence was imposed. “Where the transcript and the minutes

conflict, the transcript prevails.” State v. Williams, 15-498, p. 3 (La.App. 3 Cir.

12/9/15), 181 So.3d 857, 861, writ denied, 16-26 (La. 1/13/17), 215 So.3d 242.

the order denying his motion to reconsider his sentence, but the language of the order granting the
appeal was general and not restricted to only the order denying the motion for reconsideration.
This court stated: “Arguably, issues unrelated to sentencing are thus not properly before this court.
Nevertheless, because appeals are favored, we will address Defendant’s second assignment of
error[,]” which involved the factual basis for the defendant’s plea. /d at 1017. Following our
rationale in Guilbeau, we will consider Defendant’s assignment of error.

3

Accordingly, the trial court is ordered to correct the minutes of sentencing to
accurately reflect that it imposed the five-year sentence on each count.
OPINION

Defendant asserts that the trial court erred in accepting his guilty plea without
first advising him of the potential effect his convictions could have on his
immigration status. Thus, he argues that the trial court erred in finding that he
knowingly, intelligently, and voluntarily entered his guilty plea.

Initially, we consider the State’s argument that Defendant failed to raise this
issue before the trial court, having failed to file a motion to withdraw his guilty plea
or even argue the issue at any time before or during sentencing, “The Courts of
Appeal shall review issues that were submitted to the trial court and that are
contained in specifications or assignments of error, unless the interest of justice
requires otherwise.” Uniform Rules—Courts of Appeal, Rule 1-3. In State v.
Williams, 02-898, 02-1030, p. 7 (La. 10/15/02), 830 So.2d 984, 988, the supreme
court stated: “The general rule established by this Court is that issues not submitted
to the trial court for decision will not be considered by the appellate court on appeal.”

Louisiana Code of Criminal Procedure Article 559(A) provides that “[u]pon
motion of the defendant and after a contradictory hearing, which may be waived by
the state in writing, the court may permit a plea of guilty to be withdrawn at any time
before sentence.” Further, on the filing of a proper motion a defendant can be
permitted to withdraw his plea even after sentencing. State v. Lewis, 421 So.2d 224
(La.1982). No such motions were filed here.

We note at the outset that appeals are favored, and there is a constitutional
right to appeal in Louisiana. La.Const. art. 1, § 19; State vy Douglas, 22-752
(La.App. 3 Cir. 2/23/23), 358 So.3d 580. Louisiana Code of Criminal Procedure

Article 912.1(B)(1) provides: “The defendant may appeal to the court of appeal
4

from a judgment in a criminal case triable by jury,” and aggravated flight from an
officer is triable by a jury. La.R.S. 14:108.1; La.Code Crim.P. art. 782(A).

While recognizing the general rule expressed in Williams, this court and other
appellate courts have nonetheless addressed, out of an abundance of caution,
constitutional issues such as those regarding the habitual offender statute when
raised for the first time on appeal. State v. McKithern, 11-1402 (La.App. 3 Cir.
$/2/12), 93 So.3d 684, writ denied, 12-1653 (La. 3/1/13), 108 So.3d 782; State v.
Myles, 04-434 (La.App. 5 Cir. 10/12/04), 887 So.2d 118. This is in line with
previous decisions of this court to consider claims concerning the constitutionality
of a guilty plea on appeal, despite the issue not having been raised before the trial
court.

In State v. Casson, 07-1081, pp. 1-2 (La.App. 3 Cir. 2/4/09), 2 So.3d 1246,
1247-48 (on reh’g) (alterations in original), writ denied, 09-501 (La. 11/20/09), 25
So.3d 785, this court stated:

We granted rehearing to consider the correctness of our original
opinion and conclusion therein. We now vacate our original judgment
and find we erred in previously holding that “[a] new ground for
withdrawal of a guilty plea, even if meritorious, may not be raised for
the first time on appeal.”

In State v. Dixon, 449 So.2d 463, 464 (La.1984), the Louisiana
Supreme Court stated it “has consistently permitted a constitutionally
infirm guilty plea to be withdrawn after sentencing by way of appeal or
post conviction relief. State v. Hayes, 423 So.2d 1111 (La.1982), and
cases cited therein.” In State v. Galliano, 396 So.2d 1288, 1289
(La.1981), the supreme court held:

Code of Criminal Procedure art. 559 provides, in
pertinent part, that “(t)he court may permit a plea of guilty
to be withdrawn at any time before sentence.” In this case,
however, the court permitted withdrawal of the plea after
sentencing. Thus, it is first necessary to discuss whether
article 559 stood as an absolute bar to the judge’s actions.

Notwithstanding the language of article 559, this
Court has stated that a constitutionally infirm guilty plea
may be withdrawn after sentence is imposed in the same

5

manner that any illegal sentence may be attacked, namely,
appeal, or writs of certiorari or habeas corpus. C.Cr.P.
art. 882; State v. Banks, 383 So.2d 1009 (La.1980); State
ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977). The
reason for this exception in the context of guilty pleas was
to insure that no person was deprived of his liberty merely
because he failed to challenge the voluntariness of his plea
within the limited period of time between the plea and
sentencing.

(Emphasis added; footnote omitted.)

In State v. Whiddon, 99-1 (La.App. 3 Cir. 06/02/99), 741 So.2d
797, 801, this court acknowledged that a constitutionally infirm guilty
plea may be set aside by either an appeal or post-conviction relief:

The Defendant failed to file a motion to withdraw
his guilty plea in the lower court. However, in State v.
West, 97-1638, p. 2-3 (La.App. | Cir. 5/15/98), 713 So.2d
693, 695, a defendant failed to file a motion to withdraw
his guilty plea and the first circuit stated that “. . . [e]ven
when a formal motion to withdraw a guilty plea is not
filed, the Louisiana Supreme Court has held that a
constitutionally infirm guilty plea may be set aside either
by means of an appeal or post-conviction relief.” This
court, in State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98),
716 So.2d 36, addressed the validity of a defendant’s
guilty plea due to the constitutional nature of the
Defendant’s argument that his plea was not knowingly and
intelligently entered, although the validity of the plea was
raised for the first time on appeal because he did not file a
motion to withdraw the guilty plea in the trial court. In
accordance with Jordan, we will address the validity of his
guilty plea even though he has not filed a motion to
withdraw his guilty plea.

Based on Casson, Defendant was not required to file a motion to withdraw his
guilty plea before raising the claim at issue on appeal, and his claim as to the
constitutionality of the plea will be considered.

We next consider the State’s argument that Defendant’s claim lacks merit and
that the conviction should be affirmed by mere application of La.Code Crim-.P. art.
556.1(A)(5)(a)(i). Louisiana Code of Criminal Procedure Article 556.1 sets out the
duties for the trial court and defense counsel during a plea of guilty or of no contest

in felony cases relative to immigration status and states, in pertinent part, as follows:

6

A. Ina felony case, the court shall not accept a plea of guilty or
nolo contendere without first addressing the defendant personally in
open court and informing him of, and determining that he understands,
all of the following:

(5) That if he pleads guilty or nolo contendere, he may be subject
to additional consequences or waivers of constitutional rights in the
following areas as a result of his plea to be informed as follows:

(a) Defense counsel or the court shall inform him regarding:

(i) Potential deportation, for a person who is not a United States
citizen.

However, Article 556.1(A)(5)(c) explicitly provides that the “[flailure to adhere to
the provisions of Subsubparagraphs (a) and (b) of this Subparagraph shall not be
considered an error, defect, irregularity, or variance affecting the substantial rights
of the accused and does not constitute grounds for reversal pursuant to Article 921.”
If applicable, this provision would apparently result in a denial of Defendant’s claim.
However, because Article 556.1(A)(5), which was added by 2021 La. Acts No. 271,
§1, became effective on August 1, 2021, we find that it is inapplicable in this instance
inasmuch as Defendant’s plea was entered on March 27, 2019.

This brings us squarely to the issue of whether Defendant’s plea was
constitutional; i.e., whether it was freely and voluntarily entered. In State v. Clause,
22-545, p. 5 (La.App. 3 Cir. 1/25/23), 354 So.3d 1269, 1274-75 (quoting State v.
McGarr, 52,641, 52,642, pp. 11-12 (La.App. 2 Cir. 4/10/19), 268 So.3d 1189, 1196-
97), another panel of this court affirmed the trial court’s denial of a defendant’s
motion to withdraw his guilty plea and focused on the requirements for the validity
of the plea and the burden of proof required to set aside such plea:

Under La. C. Cr. P. art. 556.1, a valid guilty plea
must be a voluntary choice by the defendant and not the
result of force or threats. La. C. Cr. P. art. 556.1 also

provides that prior to accepting a guilty plea, the court
must personally inform the defendant of the nature of the

7

charge to which the plea is offered, any mandatory
minimum penalty, and the maximum possible penalty.
When the record establishes that an accused was informed
of and waived his right to a trial by jury, to confront his
accusers, and against self-incrimination, the burden shifts
to the accused to prove that despite this record, his guilty
plea was involuntary. Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Cooper,
52,408 (La. App. 2 Cir. 11/8/18), 261 So.3d 975; State v.
Martin, [48,045 (La.App. 2 Cir. 5/15/13), 115 So.3d 750].

An express and knowing waiver of those rights must
appear on the record, and an unequivocal showing ofa free
and voluntary waiver cannot be presumed. Boykin, supra;
State v. Johnson, 51,430 (La. App. 2 Cir. 7/5/17), 224
So.3d 505; State v. Kennedy, 42,850 (La. App. 2 Cir.
1/9/08), 974 So.2d 203. A plea of guilty normally waives
all nonjurisdictional defects in the proceedings prior to the
plea, including insufficiency of the evidence. State v.
Crosby, 338 So.2d 584 (La. 1976); State v. Johnson,
supra; State vy. Stephan, 38,612 (La. App. 2 Cir. 8/18/04),
880 So.2d 201. A validly entered guilty plea, or plea of
nolo contendere, waives any right a defendant might have
had to question the merits of the state’s case and the factual
basis underlying the conviction. State v. Bourgeois, 406
So.2d 550 (La. 1981); State v. Cooper, supra; State v.
Hardy, 39,233 (La. App. 2 Cir. 1/26/05), 892 So.2d 710.

A guilty plea will further be found unconstitutionally infirm “when a defendant is
induced to enter the plea by a plea bargain or what he justifiably believes was a plea

bargain and that bargain is not kept.” State v. Heath, 17-502, p. 3 (La.App. 5 Cir.

12/27/17), 236 So.3d 732, 735.

guilty plea:

The trial court, in denying Defendant’s motion to appeal the convictions and
limiting the grounds for appeal to the issues related to sentencing, ruled that the plea
was valid and constitutional, thus, Defendant waived all non-jurisdictional issues

related to his conviction. The following colloquy appears in the transcript of the

THE COURT:

All right. We’re going to go over your rights together.

You understand you have a right to a speedy and public jury trial,
and during that trial you would have the right to have an attorney of
your choice[,] and if you couldn’t afford an attorney you'd have the
right to have a court-appointed attorney without cost to you if you
couldn’t afford one, and also during that trial you’d have the right to
confront and cross-examine the witnesses that the State would call to
testify against you, meaning that you would have the right to see, hear,
and ask questions of those witnesses that the State would call to testify.

You'd have the right to subpoena your own witnesses to appear
and testify on your behalf even if they didn’t want to be here.

You would have the right against self-incrimination, meaning
that you would not have to testify against yourself or at all or put on
any testimony or evidence at all without any of that being held against
you.

You would have the right to be presumed innocent until and
unless proven guilty beyond a reasonable doubt.

You would also have the right to appeal a verdict of guilty if you
were convicted by a jury, but when you plead guilty you waive all those
rights. Do you understand that?

MR. GAMBOA:
Yes, Your Honor.
THE COURT:

And is that what you want to do at this time?
MR. GAMBOA:

Yes, Your Honor.

The trial court further inquired into the voluntariness of Defendant’s plea:

THE COURT:

All right. Has anybody threatened, pressured, or forced you to
plead guilty here today?

MR. GAMBOA:

No, Your Honor.

Based upon the colloquy quoted and the entirety of the transcript, we find that

Defendant was advised of all of his Boykin’ rights—the nature of the charge to which
the plea was offered, the maximum possible penalty, his rights to trial by jury and to
confront his accusers, and his privilege against self-incrimination. The transcript
further reveals that he verbally waived those rights. Moreover, Defendant does not
allege that the trial court failed to adequately explain his Boykin rights and the effect
that a waiver of those rights would entail. Thus, the burden shifted to Defendant to
prove that despite this record, his guilty plea was involuntary. To determine whether
he carried this burden, it is proper for us to look beyond the mere transcript of the
guilty plea itself.

Because a plea of guilty waives an accused’s fundamentai right
to a jury trial, right to confront his accusers and privilege against self
incrimination, due process requires as a prerequisite to its validity that
the plea be a voluntary and intelligent relinquishment of known rights.
McCarthy v. United States, [394 U.S. 459, 89 S.Ct. 1166 (1969)]. The
record of the plea must show that the defendant was informed of these
three basic rights and then knowingly and voluntarily waived them.
State v. LaFleur, 391 So.2d 445 (La.1980).

Since the plea colloquy is but an objective method of ascertaining
and preserving an accused’s state of mind, however, judicial inquiry
need not focus solely upon the clarity of the words used. For this
reason, a court, when called upon to do so through a recognized
procedural vehicle, has the power, notwithstanding a record waiver of
constitutional rights, to determine whether other factors present at the
time of a guilty plea, whether inside or outside the plea colloquy
record, were sufficient to render the plea involuntary or unintelligent.
See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136
(1977).

... In Turner [v. United States, 320 F.Supp. 1204 (E.D.La.
1970)], the judge ruled that the guilty plea was voluntary and intelligent
after considering the objective evidence in the record as well as later
testimony taken at an evidentiary hearing on the voluntariness issue. In
[State v.] MacDonald|, 390 So.2d 1276 (La.1980),] and [State v.]
Langendorfer[, 389 So.2d 1271 (La.1980)], this Court likewise looked
beyond the record waiver of constitutional rights in order to determine

‘ Boykin vy. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).
10

voluntariness and intelligence from the totality of the record before it.
In MacDonald this included a review of a plea bargain arrangement and
in Langendorfer this included a review of testimony taken at the
multiple offender hearing.

State v. Galliano, 396 So.2d 1288, 1290 (La.1981) (emphasis added).

In brief to this court, Defendant argues that he was not advised of the impact
his plea would have on his immigration status as required by Padilla. He notes that
in an affidavit submitted as part of the State’s opposition to his PCR application, his
trial counsel admitted: 1) he knew Defendant was not a United States citizen; 2) he
could not remember if he spoke to Defendant about the impact the plea could have
on Defendant’s immigration status; and 3) it was his usual practice to inform such
defendants of the potential consequences of their pleas. Moreover, Defendant argues
that it is clear from his PCR application that he would not have pled guilty had he
been adequately advised that such a plea would render him subject to removal from
the United States. Thus, he argues that the record fails to establish that his plea was
knowing and voluntary.

The record reflects that Defendant is not a United States citizen. When asked
his full name by the trial court during the plea proceeding, Defendant informed it
that he was born in Mexico, stating: “Birth certificate is from Mexico. So, it says
my full name over there, but all my legal documents, like my green card, all that
stuff, says Juan Gamboa.”

Defendant’s PCR application, which was filed two years after his plea, is
pertinent to this assignment of error and is referenced by both Defendant and the
State in their appellate briefs. In his pro-se PCR application, Defendant raised a
claim of ineffective assistance of counsel, alleging that his counsel failed to inform

him prior to his plea of the mandatory deportation laws under 8 U.S.C.A. §

ll

1227(a(2)(B)(i).” He claimed that he would not have pled guilty had he been
properly informed. Defendant acknowledged that “he was aware of the connection
between his criminal record and his immigration status, but he was not aware of the
automatic deportation elements.” (Emphasis added.) He further admitted that at
the time of his arrest he explained to the officers that the reason he ran was because
“his permanent resident card/immigration status had expired, and he was afraid of
being deported[.]” Defendant alleged that he asked defense counsel to speak to the
trial court about his immigration status because he feared being deported and leaving
his five children behind. However, he claims that defense counsel only spoke to the
judge about his children. Defendant’s PCR application included an immigration
detainer that was served on him on July 8, 2019.

Also relevant is an affidavit attached to the State’s procedural objections and
answer to Defendant’s PCR application. In the affidavit, defense counsel stated:

] was informed that [Defendant] was not a US Citizen, but had lived in

the US since age four (4). He says I did not inform him that a conviction

for the charges that he plead [sic] guilty to could result in his

deportation. I have no notes in my file on that issue and I do not

remember if I told him this or not. Over the years, I have represented

several non-citizens, and make it my practice to inform them of the

possibility of deportation. In this case, I cannot positively state that ]

informed [Defendant] of the possibility of deportation. I do point out

that he has previously been convicted of Simple Burglary, and that

alone could have resulted in deportation.

Defendant’s assigned error is based on Padilla. Padilla, a native of Honduras,

had served as a member of the United States Armed Forces during the Vietnam War

and had been a lawful, permanent resident of the United States for more than forty

* This provision provides:

Any alien who at any time after admission has been convicted of a violation of (or
a conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance (as defined in section
802 of Title 21), other than a single offense involving possession for one’s own use
of 30 grams or less of marijuana, is deportable.

12

years. He faced deportation after pleading guilty to the transportation of a large
amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. The
Supreme Court addressed Padilla’s ineffective assistance of counsel claim and
defined the scope of the duty to advise noncitizens about the consequences of guilty
pleas, declaring:

Immigration law can be complex, and it is a legal specialty of tts
own. Some members of the bar who represent clients facing criminal
charges, in either state or federal court or both, may not be weil versed
in it. There will, therefore, undoubtedly be numerous situations in
which the deportation consequences of a particular plea are unclear or
uncertain. The duty of the private practitioner in such cases is more
limited. When the law is not succinct and straightforward .. ., a
criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse
immigration consequences. But when the deportation consequence is
truly clear, as it was in this case, the duty to give correct advice is
equally clear.

Padilla, 559 U.S. at 369 (footnote omitted).
The Court continued:

In sum, we have long recognized that the negotiation of a plea
bargain is a critical phase of litigation for purposes of the Sixth
Amendment right to effective assistance of counsel. Hill [v. Lockhart],
474 U.S. [52] at 57, 106 S.Ct. 366 [(1985)]; see also [McMann v.]
Richardson, 397 U.S. [759] at 770-771, 90 S.Ct. 1441 [(1970)]. The
severity of deportation—‘“the equivalent of banishment or exile,”
Delgadillo v. Carmichael, 332 U.S. 388, 390-391, 68 S.Ct. 10, 92 L.Ed.
17 (1947)—only underscores how critical it is for counsel to inform her
noncitizen client that he faces a risk of deportation.

It is our responsibility under the Constitution to ensure that no
criminal defendant—whether a citizen or not—is left to the “mercies of
incompetent counsel.” Richardson, 397 U.S., at 771, 90 S.Ct. 1441.
To satisfy this responsibility, we now hold that counsel must inform her
client whether his plea carries a risk of deportation. Our longstanding
Sixth Amendment precedents, the seriousness of deportation as a
consequence of a criminal plea, and the concomitant impact of
deportation on families living lawfully in this country demand no less.

Id. at 373-74 (footnote omitted).

Justice Scalia, with whom Justice Thomas joined, dissented, stating:

13

The concurrence’s treatment of misadvice seems driven by
concern about the voluntariness of Padilla’s guilty plea. But that
concern properly relates to the Due Process Clauses of the Fifth and
Fourteenth Amendments, not to the Sixth Amendment. Padilla has not
argued before us that his guilty plea was not knowing and voluntary. If
that is, however, the true substance of his claim (and if he has properly
preserved it) the state court can address it on remand.

Id. at 391 (citations omitted).

In State v. Sewell, 20-300, p. 4 (La. 12/11/20), 314 So.3d 811, 813 (per
curiam) (footnote omitted), which Defendant cites in his brief, the Louisiana
Supreme Court discussed Padilla, as follows:

A closer look at Padilla suggests it imposed a number of duties
on defense attorneys, which are subsumed in the obligation to inform a
client whether his plea carries a risk of removal. First, while not
specifically addressed by Padilla, counsel must determine the
immigration status of the noncitizen client, which may prove
challenging given the several statuses possible under current law.
Second, counsel must scrutinize the elements of the state crime in light
of federal immigration law to identify the likelihood of removal
following a guilty plea. Third, counsel must advise the client
accordingly as to the risk of removal.

However, it is not clear that Padilla imposed a duty on defense
counsel to determine whether his or her client is a noncitizen to begin
with, such that failure to make this determination constitutes per se
deficient performance. The majority in Padilla arguably proceeded on
the supposition that a defense attorney is aware that his or her client is
a noncitizen.

The supreme court went on to state:

We do not believe that the United States Supreme Court in
Padilla imposed a duty on every defense attorney to investigate every
client’s citizenship status in all instances. Instead, the Supreme Court
in Padilla answered the question of whether advice about removal
consequences is within the reach of the Sixth Amendment at all. See
Chaidez v. United States, 568 U.S. 342, 349, 133 S.Ct. 1103, 1108, 185
L.Ed.2d 149 (2013) (“Padilla considered a threshold question: Was
advice about deportation ‘categorically removed’ from the scope of the
Sixth Amendment right to counsel”). The Supreme Court in Padilla
concluded: “Strickland applied to Padilla’s claim.” Chaidez, 568 U.S.
at 353, 133 S.Ct. at 1110 (quoting Padilla, 559 U.S. at 366, 130 S.Ct.
at 1482).

Id. at 814.

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Defendant suggests Padilla established that a plea cannot be knowing and
voluntary if a defendant is not counseled regarding the impact his plea may have on
his immigration status. We disagree. The Supreme Court did not address the
voluntariness of Padilla’s plea. Rather, Padilla requires defense attorneys to inform
noncitizen clients of the deportation risks associated with guilty pleas. The Supreme
Court did not demand that such information be placed on the record at the time a
guilty plea is entered, nor did it not apply the ruling in Padilla to judges or the
prosecution. Likewise, the Louisiana Supreme Court did not address the
voluntariness of the plea, noting that Padilla “answered the question of whether
advice about removal consequences is within the reach of the Sixth Amendment at
all.” Sewell, 314 So.3d at 114.

Furthermore, Defendant cannot prove his plea was unknowing and
involuntary inasmuch as both his brief and his PCR application acknowledge that he
was aware that pleading guilty could impact his immigration status. The PCR
application further indicated that Defendant’s permanent resident card was expired
at the time he fled from police, and he fled because he was afraid of being deported.

In his reply brief, Defendant alleges that he was unaware that his plea would
subject him to automatic deportation from the United States. However, he has not
set forth or discussed any law regarding deportation in the briefs filed in this court.
Uniform Rules—Courts of Appeal, Rule 2 12.4(A)(9)(a).” As a result, Defendant
has failed to prove that his plea to aggravated flight from an officer resulted in
automatic deportation. We further note that Defendant pled guilty to simple burglary

on April 15, 2011, and his probation for that offense was revoked on the same date

* Uniform Rules—Courts of Appeal, Rule 2—12.4(A}(9)(a) requires the appellant’s
argument in his brief to include “appellant’s contentions, with reference to the specific page
numbers of the record and citations to the authorities on which the appellant relies[.]”

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he pled guilty to aggravated flight from an officer. Obviously, Defendant was not
automatically deported following his April 15, 2011 guilty plea, even though simple
burglary is a felony offense. Furthermore, Defendant has not addressed whether the
basis for the deportation detainer attached to his PCR application was based on his
simple burglary convictions as opposed to his convictions for aggravated flight from
an officer. He fails to explain why he was not deported after his simple burglary
plea in 2011, albeit he was initially given probation.

In his PCR application, Defendant indicated that he was subject to automatic
removal in accordance with 8 U.S.C.A. § 1227(a}(2)(B)(i), which was the basis for
Padilla’s claim. However, that provision relates to controlled dangerous substances,
and Defendant was convicted of aggravated flight from an officer. He makes no
reference to any provision requiring automatic deportation for the offenses involved
here. Thus, that provision is inapplicable to Defendant’s claim.

Based on the entirety of the transcript and the record, including Defendant’s
PCR application and its attachments, we conclude that he entered a valid and
constitutional plea of guilty. Thus, we find that Defendant has not met his burden
of proving that his guilty plea was involuntary. Accordingly, Defendant’s
conviction is affirmed, and as he failed to argue the excessiveness of the sentence,
his sentence is also affirmed.

DECREE

The conviction and sentence imposed in docket numbers 19468-18 and
20757-18 are affirmed, and the matter is remanded for the trial court to correct the
minutes of sentencing to accurately reflect that it imposed the five-year sentence on

each count.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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