DIAZ v. the STATE.
DIAZ v. the STATE.
Opinion
*19 Jose Soriano Diaz appeals from the denial of his motion to withdraw his guilty plea, arguing that his attorney's failure to properly advise him of the immigration consequences of the plea led him to plead guilty. Because Diaz has not demonstrated that any deficiency in counsel's performance resulted in prejudice, we affirm.
"When a criminal defendant seeks to withdraw a guilty plea on the ground of ineffective assistance of counsel, the ineffective assistance claim must be evaluated under the two-prong test set forth in
Strickland v. Washington
[,
*20
Diaz is a citizen of the Dominican Republic. On June 24, 2015, Diaz was arrested and charged with possession of a controlled substance and driving under the influence of alcohol. The case proceeded to trial, and on June 7, 2016, after jury selection had begun, Diaz entered a guilty plea to both charges. Diaz's guilty plea to possession of a controlled substance subjects him to mandatory removal from the United States. See
At the plea hearing, the prosecutor informed Diaz that "regardless of what anyone else has told you about whether or not you will be deported, including your attorney or an immigration attorney, you could and I believe the law requires us to tell you that you will be deported from the United States." His plea counsel then asked Diaz whether he was under an immigration hold. Diaz responded that he was, and plea counsel explained that:
One of two-one of two things is going to happen and I don't know if anyone in this room knows which of the two will happen. ... If the Judge accepts the plea, you will either in 72 hours be released to the street, because Immigration hasn't come to get you, or Immigration will come and get you for purposes of deportation.
Diaz indicated that he understood.
On appeal, Diaz argues that although the prosecutor correctly explained the immigration consequences of his plea, plea counsel's advice about the immigration consequences amounted to deficient performance. Pretermitting whether counsel performed deficiently by failing himself to inform Diaz of the immigration consequences of the plea, Diaz has not shown prejudice. Whether a defendant can "show prejudice from the denial of his right to trial ... [is] an inquiry that ... demands a case-by-case examination of the totality of the evidence."
Lee v. United States
, --- U.S. ----, ---- (II) (B),
a defendant who is not a United States citizen and can show that his lawyer did not adequately advise him of the risks of deportation resulting from his guilty plea will satisfy the first prong of the Strickland ineffectiveness test-deficient performance. To obtain relief, however, the defendant still must establish the second Strickland prong-prejudice, which in the guilty plea context requires the defendant to show that there is a reasonable probability that, but for *21 counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
*3
Smith v. State
,
Diaz relies heavily on
Encarnacion v. State
,
Judgment affirmed .
Branch and Bethel, JJ., concur.
Reference
- Full Case Name
- Jose Soriano Diaz v. State
- Cited By
- 4 cases
- Status
- Published