State v. Escamilla-Franco

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NOT DESIGNATED FOR PUBLICATION

No. 119,772

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANCISCO ESCAMILLA-FRANCO,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 16, 2019.
Reversed and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.

PER CURIAM: Francisco Escamilla-Franco, a citizen of Mexico who was legally
residing in the United States, appeals the denial of his motion to withdraw his guilty plea
to possession of cocaine. His motion was based on the assertion that his attorney
incorrectly advised him that he did not need to worry about the immigration
consequences of pleading guilty. We conclude that the attorney's advice that led to
Escamilla-Franco's plea was inadequate under Padilla v. Kentucky, 559 U.S. 356, 130 S.
Ct. 1473, 176 L. Ed. 2d 284 (2010), and that had Escamilla-Franco been properly
advised, he would have chosen to take his chances by proceeding to trial. Accordingly,
we reverse and remand for further proceedings.
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Procedural History

On December 10, 2015, Escamilla-Franco was originally charged with possession
of cocaine; possession of drug paraphernalia; driving with a cancelled, suspended, or
revoked license; transporting an open container of alcohol; and failing to signal his
intention to turn.

Escamilla-Franco's first appearance was held on January 4, 2016.

Escamilla-Franco was age 45, had a sixth grade education, and did not speak
English. His court-appointed attorney negotiated a plea agreement with the State under
which Escamilla-Franco agreed to plead guilty to possession of cocaine and the State
agreed to dismiss the remaining charges, to recommend the low grid box sentence, and to
recommend probation so Escamilla-Franco could get drug treatment. The plea agreement
was read to Escamilla-Franco by an interpreter before he signed it. Paragraph 9 of the
Defendant's Acknowledgment of Rights and Entry of Plea form, which Escamilla-Franco
also signed, cautioned: "If I am not a United States citizen, I understand that a conviction
of a felony offense most likely will result in my deportation from the United States."

On February 3, 2016, Escamilla-Franco waived a preliminary hearing and entered
his plea in accordance with the agreement. The court accepted his plea, found him guilty
of possession of cocaine, and set the matter for sentencing.

In March 2016, the court held the sentencing hearing and sentenced Escamilla-
Franco to 28 months in prison but granted 12 months of probation and ordered 18 months
of drug treatment.

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In June 2016, the State moved to revoke Escamilla-Franco's probation when he
tested positive for methamphetamine. He also failed to report and failed to make fee
payments. The court imposed a 3-day quick dip, changed his probation to supervision by
Community Corrections, and extended it for 12 months.

At some point thereafter Escamilla-Franco was arrested by Immigration and
Customs Enforcement (ICE) and deportation proceedings were initiated based on
Escamilla-Franco's drug conviction in this case.

In January 2017, Escamilla-Franco moved to withdraw his plea, alleging that he
did not understand the deportation consequences of his plea and that he was not provided
with all the discovery before entering his plea. The court set the matter for a hearing and
appointed new counsel for Escamilla-Franco.

In February 2017, at the hearing that followed, Escamilla-Franco was the sole
witness. The State did not introduce any evidence. Escamilla-Franco testified through an
interpreter that he had been in the United States on a green card for about 15 years. (The
records indicated he had been a United States resident at least since 1997.) He met with
his original attorney twice, the second time being on the day of his plea hearing. Before
he entered his plea his attorney had asked if he had his papers. He told him that he had a
green card. Escamilla-Franco testified that his counsel responded that ICE was deporting
a lot of people at the time "but if I had my documents, then I would be fine." He testified
that his lawyer did not tell him before his plea hearing that if he pled guilty to possession
of cocaine he would be subject to removal proceedings. Had he known this he would not
have entered his guilty plea. "[H]e was telling me that they wanted to send me to prison,
but if I would have known that I would have this problem with immigration, I would not
have [pled] guilty." The ICE document received into evidence indicated that Escamilla-
Franco was being deported because of his controlled substance violation in this case.

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In its ruling from the bench, the district court acknowledged that it was
uncontested that the deportation consequences of Escamilla-Franco's plea were not
explained to him and stated that the court would "assume for the sake of this hearing that
that statement is true." The court focused on paragraph 9 of the acknowledgment of rights
and entry of plea, which Escamilla-Franco signed and which cautioned him about the risk
of being deported. The court stated that it "has a difficult time concluding that he did not
understand the immigration consequences as he has stated." The court did not address or
make any findings regarding Escamilla-Franco's testimony that he would not have
entered into the plea agreement had he understood the likelihood of being deported. The
court found that Escamilla-Franco had failed to demonstrate manifest injustice and
denied the motion. This appeal followed.

Analysis

Escamilla-Franco's sole issue on appeal is that the district court erred in not
finding manifest injustice that warranted the withdrawal of his guilty plea to the State's
drug charge. He contends that he would not have pleaded guilty and instead would have
gone to trial if his attorney had properly advised him of the immigration consequences of
his guilty plea.

We review the district court's denial of Escamilla-Franco's post-sentencing motion
to withdraw his plea for any abuse of discretion. See State v. Morris, 298 Kan. 1091,
1100, 319 P.3d 539 (2014). A court abuses its discretion if the decision is based on an
error of fact or law or if no reasonable person would have agreed with the court's
decision. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

Because Escamilla-Franco seeks relief after his sentence had already been
imposed, he was required to show that allowing him to withdraw his plea was necessary
to avoid manifest injustice. K.S.A. 2018 Supp. 22-3210(d)(2). To find manifest injustice,
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Kansas courts review these nonexclusive factors: "'(1) whether the defendant was
represented by competent counsel; (2) whether the defendant was misled, coerced,
mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and
understandingly made. [Citations omitted.]'" Morris, 298 Kan. at 1100-01. Escamilla-
Franco argues he was not represented by competent counsel because his court appointed
attorney did not inform him of probable deportation consequences of a guilty plea.

In considering Escamilla-Franco's claim we apply the constitutional standards set
forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); and State v. Bricker, 292 Kan. 239, 245-46, 252 P.3d 118 (2011); i.e., he must
show, by a preponderance of the evidence, that (1) trial counsel's performance fell below
the objective standard of reasonableness and (2) there is a reasonable probability that, but
for trial counsel's errors, the result of the proceeding would have been different.

To satisfy the first Strickland standard, Escamilla-Franco relies on Padilla for
support. The Court in Padilla noted that prevailing norms require counsel to inform
clients about the risk of deportation. 559 U.S. at 367. There, Padilla was facing
mandatory deportation. Although Padilla's counsel knew Padilla was not a citizen of the
United States, he still advised Padilla that he would not need to worry about deportation.
Under those circumstances, the Court found that Padilla's counsel was constitutionally
ineffective. 559 U.S. at 359-60. The Court explained that "[t]he consequences of Padilla's
plea could easily be determined from reading the removal statute" and since "the
deportation consequence is truly clear . . . the duty to give correct advice is equally
clear." 559 U.S. at 369.

The facts here are similar to those in Padilla. Like Padilla, Escamilla-Franco was a
lawful resident who had lived in the United States for many years. Both Padilla's attorney
and Escamilla-Franco's attorney knew their respective clients were not citizens. Both
Padilla and Escamilla-Franco faced mandatory deportation because of their crimes. See
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8 U.S.C. § 1227(a)(2)(B)(i) (2012) ("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 . . . , other
than a single offense involving possession for one's own use of 30 grams or less of
marijuana, is deportable."). And like Padilla's attorney, Escamilla-Franco's attorney
incorrectly told him that he did not need to worry about deportation.

It was uncontested at Escamilla-Franco's hearing that notwithstanding the
cautionary language of paragraph 9 of the acknowledgment of rights and entry of plea,
which Escamilla-Franco signed, his counsel essentially told him that he could disregard
this warning because he had his green card. He told him that although ICE was deporting
a lot of people at the time, because he had his documents, he "would be fine."

This testimony satisfies the first Strickland standard by showing that Escamilla-
Franco's counsel was constitutionally ineffective in his advice to Escamilla-Franco about
his prospects of being deported. See Padilla, 559 U.S. at 360.

With regard to the second Strickland standard—that there is a reasonable
probability that, but for trial counsel's errors, the result of the proceeding would have
been different—Escamilla Franco probably would not have pled guilty to a drug crime
and would have insisted on going to trial had his attorney provided proper advice about
the consequences of his plea. See Bricker, 292 Kan. 239, Syl. ¶ 5.

Had Escamilla-Franco rejected the plea deal and gone to trial, he would have faced
a maximum prison sentence of 32 months on the original charges. Of course, he could
have faced deportation at the end of his prison sentence if convicted. By accepting the
plea deal after being advised by his attorney, Escamilla-Franco avoided the prospect of an
immediate prison sentence (see K.S.A. 2018 Supp. 21-6805[a]), but faced the strong
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probability that he would immediately be deported from the United States where he had
lived and worked from at least 1997.

Reading between the lines, it appears from the complaint that Escamilla-Franco's
charges arose out of a traffic stop. The record is silent regarding the merits of the State's
underlying case or on the likelihood of Escamilla-Franco being convicted of the original
charges. The State does not address this second Strickland standard on appeal and did not
do so before the district court. But we note that Escamilla-Franco entered into the plea
agreement and entered his plea only one month after his first appearance on January 4,
2016.

Given the alternatives of almost certain deportation if he pled guilty and the
possibility of avoiding deportation by rolling the dice and going to trial, we conclude that
Escamilla-Franco satisfied the second Strickland standard by convincing us that there
was a reasonable probability that, but for trial counsel's errors, he would have rejected the
plea deal and taken his chances at trial.

Reversed and remanded for further proceedings.