People v. Walford
People v. Walford
Opinion of the Court
The People of the State of Colorado appeal an order of the Boulder County District Court granting a motion for post-conviction relief filed pursuant to Crim.P. 35(c) by the appellee, Larry David Walford, in connection with a plea of guilty to second degree burglary.
Walford, a British subject who legally resides in the United States, entered this country with his mother in 1956. In 1979, he entered a plea of guilty to second degree burglary as a result of a plea agreement and was sentenced to a term of imprisonment not to exceed five years. In 1982, a jury found Walford guilty of another offense and he was sentenced to a term of imprisonment.
In Pozo, we noted that the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was applicable to claims of ineffective assistance of counsel made by aliens in criminal cases. We observed that the question of whether a defense attorney's failure to advise an alien client of potential deportation consequences of a guilty plea constituted ineffective assistance of counsel required an initial determination of whether, in light of prevailing standards of minimally acceptable professional conduct, the attorney had a duty to become familiar with this area of immigration law. We also indicated that a determination of whether the attorney had reason to believe that the client was an alien was a necessary predicate to a thorough examination of this issue.
The trial court’s order in this case contains no specific findings that Walford’s attorneys had a duty to research deportation law. Although the record contains some evidence bearing on the question of whether Walford’s attorneys had reason to believe their client was an alien, the trial court did not make findings on this issue either. Finally, the order contains no findings or conclusion as to whether Walford was prejudiced by this conduct. The record on appeal is insufficient to permit this court to determine these matters,
. This appeal was certified pursuant to § 13-4-109, 6 C.R.S. (1973).
. The only evidence in the record regarding the 1982 conviction is Walford’s testimony that the conviction was entered after trial and that an Immigration and Naturalization Service detain-er was filed while he was serving the resulting sentence. There is no evidence of the nature of the conviction.
. The record does not contain a copy of the 35(c) motion.
. Because the court’s holding that Walford did not receive effective assistance of counsel was dispositive, the court did not reach Walford’s claim that he was not sufficiently advised of his legal rights.
. The People argue that the decision of the Court of Appeals in People v. Pozo, 712 P.2d 1044 (Colo.App. 1985), was inapplicable to Wal-ford’s case because it announced a new constitutional rule that should not be given retroactive effect. In view of the fact that the Court of Appeals decision relied upon by the trial court has been reversed, and considering the additional fact that this case must be reversed for a determination of Walford’s Crim.P. 35(c) motion under applicable legal standards, we do not address the retroactivity issue.
.For example, the record does not reflect whether the crime Walford was convicted of in 1982 was one involving moral turpitude. Wal-ford, having been in this country since 1956, is apparently subject to deportation only under the provision of 8 U.S.C. § 1251(a)(4) (1982), which allows for deportation when an alien "any time after entry is convicted of two crimes involving moral turpitude not arising out of a single scheme of conduct."
Dissenting Opinion
dissenting:
I respectfully dissent.
For the reasons set out in my dissent in People v. Pozo, 746 P.2d 523 (Colo. 1987), I would reverse the order of the trial court
I am authorized to- say that ERICKSON and VOLLACK, JJ., join in this dissent.
Reference
- Full Case Name
- The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Larry David WALFORD, Defendant-Appellee
- Cited By
- 5 cases
- Status
- Published