{ "id": 4239332, "name": "MARTIN RAMIREZ, a/k/a RICHARD G. SANCHEZ, JR., Petitioner-Respondent, v. STATE OF NEW MEXICO, Respondent-Petitioner", "name_abbreviation": "Ramirez v. State", "decision_date": "2014-06-19", "docket_number": "Docket No. 33,604", "first_page": "308", "last_page": "316", "citations": [ { "type": "official", "cite": "2014-NMSC-023" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "8 U.S.C. \u00a7 1182", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(2)(A)(i)(II)" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670558 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0406-01" ] }, { "cite": "533 U.S. 289", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9313153 ], "year": 2001, "pin_cites": [ { "parenthetical": "\"[T]he American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel 'should fully advise the defendant of these consequences.'\" (quoting ABA Standard 14-3.2 cmt., at 75)" } ], "opinion_index": 0, "case_paths": [ "/us/533/0289-01" ] }, { "cite": "552 U.S. 264", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3675901 ], "year": 2008, "pin_cites": [ { "page": "280-81", "parenthetical": "holding that Teague was not intended \"to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions\"" } ], "opinion_index": 0, "case_paths": [ "/us/552/0264-01" ] }, { "cite": "506 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11925282 ], "year": 1993, "pin_cites": [ { "page": "372-73" } ], "opinion_index": 0, "case_paths": [ "/us/506/0364-01" ] }, { "cite": "489 U.S. 288", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032050 ], "year": 1989, "pin_cites": [ { "page": "290-92", "parenthetical": "adopting the view that \"new rules [of criminal procedure are] not . . . applicable to those cases that have become final before the new rules were announced\"" } ], "opinion_index": 0, "case_paths": [ "/us/489/0288-01" ] }, { "cite": "2010-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247843 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6\u00b6 1, 25" }, { "page": "\u00b6 25" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0381-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "pin_cites": [ { "page": "687", "parenthetical": "holding that to establish ineffective assistance of counsel, a defendant must show that (1) \"counsel's performance was deficient\" and (2) \"the deficient performance prejudiced the defense\"" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "92 Cal. L. Rev. 541", "category": "journals:journal", "reporter": "Cal. L. Rev.", "year": 2004, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "133 S. Ct. 1103", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12407511 ], "weight": 8, "year": 2013, "pin_cites": [ { "page": "1107-08" }, { "page": "1107-08", "parenthetical": "\"Padilla thus announced a 'new rule.' \"" }, { "page": "1108" }, { "page": "1110-11", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1110" }, { "page": "1114", "parenthetical": "Sotomayor, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/568/0342-01" ] }, { "cite": "278 P.3d 569", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2013, "opinion_index": 0 }, { "cite": "2012-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4186902 ], "year": 2013, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0769-01" ] }, { "cite": "559 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3581896, 12447673 ], "year": 2010, "pin_cites": [ { "page": "359-60", "parenthetical": "holding that the Sixth Amendment guarantee of effective assistance of counsel requires a defendant's attorney to advise the defendant that pleading guilty to charges of transporting marijuana would result in deportation" } ], "opinion_index": 0, "case_paths": [ "/us/559/0356-01", "/l-ed-2d/176/0284-01" ] }, { "cite": "96 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577352 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0433-01" ] }, { "cite": "1981-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "121 N.M. 544", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566605 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0544-01" ] }, { "cite": "1996-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6\u00b6 15-16" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] } ], "analysis": { "cardinality": 997, "char_count": 23769, "ocr_confidence": 0.771, "pagerank": { "raw": 8.938036637969455e-08, "percentile": 0.5010340371195386 }, "sha256": "30a2b48a446e7b25db2cb86d82d6e2f7f9bcb36a3b6b206a9fb458c6da97ca31", "simhash": "1:0a2c548bea8106d0", "word_count": 3738 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "EDWARD L. CH\u00c1VEZ, Justice", "WE CONCUR:", "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Senior Justice", "RICHARD C. BOSSON, Justice", "CHARLES W. DANIELS, Justice" ], "parties": [ "MARTIN RAMIREZ, a/k/a RICHARD G. SANCHEZ, JR., Petitioner-Respondent, v. STATE OF NEW MEXICO, Respondent-Petitioner." ], "opinions": [ { "text": "OPINION\nCH\u00c1VEZ, Justice.\n{1} In State v. Paredez, 2004-NMSC-036, \u00b6 19, 136 N.M. 533, 101 P.3d 799, we held that a criminal defense attorney who represents a noncitizen client \u201cmust advise that client of the specific immigration consequences of pleading guilty\u201d to pending charges. An attorney\u2019s failure to do so will be ineffective assistance of counsel if the client is prejudiced. Id. Ramirez pleaded guilty in 1997 and now asserts that his attorney did not advise him about any immigration consequences of his pleas. The question in this case is whether our holding in Paredez applies retroactively and, if it does, whether Ramirez has a claim for ineffective assistance of counsel that could justify withdrawal of his pleas.\n{2} We hold that Paredez applies retroactively to 1990, the year that this Court began to prohibit courts from accepting a guilty plea from a defendant without fulfilling the following requirements: the courtmust(l) ascertain that the defendant understood that a conviction may have an effect on the defendant\u2019s immigration status; (2) obtain an affidavit from the defendant that the judge personally advised the defendant of - the possible effect of a conviction on the defendant\u2019s immigration status; and (3) obtain a certification from the defendant\u2019s attorney that the attorney had conferred with the defendant and explained in detail the contents of the affidavit signed by the defendant. See Form 9-406 NMRA (1990); Rule 5-303(E)(5) NMRA (1990); Rule 6-502(D)(2) NMRA (1990); Rule 7-502(E)(2) NMRA (1990); & Rule 8-502(D)(2) NMRA (1990). These requirements were not new in 1997 at the time Ramirez pleaded guilty, and they were \u201cdesigned to ensure a guilty plea is made knowingly and voluntarily.\u201d See State v. Garcia, 1996-NMSC-013, \u00b6 8, 121 N.M. 544, 915 P.2d 300 (stating that \u201cNew Mexico has long recognized that for a guilty plea to be valid it must be knowing and voluntary\u201d).\nBACKGROUND\n{3} On January 4,1997, Martin Ramirez was arrested and charged with possession of up to one ounce of marijuana and two other misdemeanors, contrary to NMSA 1978, Section 30-31-23(B)(1) (1990, amended 2011) (possession of up to one ounce of marijuana); NMSA 1978, Section 30-31-25.1 (1981, amended 2001) (possession of drug paraphernalia); and NMSA 1978, Section 30-22-3 (1963) (concealing identity), respectively. He appeared in metropolitan court for a custody arraignment two days later and pleaded guilty to all three charges on the advice of his public defender. In 2009, Ramirez learned that his guilty pleas in 1997 rendered him \u201cinadmissible to the United States.\u201d Ramirez filed a petition for writ of error coram nobis in the district court, seeking to vacate his metropolitan court guilty pleas on the basis of ineffective assistance of counsel. Ramirez\u2019s undisputed contentions are that he first met with his attorney right before his arraignment and that the attorney advised him that if he pleaded guilty to the charges, which he did, his sentence would be to time already served. Also apparently uncontested is Ramirez\u2019s assertion that his attorney never advised him about any immigration consequences of his guilty pleas, which was in direct conflict with the requirement that Form 9-406 (1990) be completed by the judge, the defendant, and the defendant\u2019s attorney if the defendant was represented by counsel. Form 9-406(9) (1990) required the judge to certify nine facts, including \u201c[tjhat the defendant understands that a conviction may have an effect upon the defendant\u2019s immigration or naturalization status.\u201d Form 9-406 (1990) also required the defendant as an affiant to certify under oath that the judge had so advised the defendant. Finally, Form 9-406 (1990) required the defendant\u2019s attorney to certify \u201cthat [the attorney] has conferred with [the attorney\u2019s] client with reference to the execution of [the] affidavit and that [the attorney] has explained in detail its contents.\u201d\n{4} We cannot determine from the record before us whether Form 9-406 (1990) was filed in this case because Ramirez\u2019s case files from both the metropolitan court and the public defender department were destroyed prior to the present appeal. Nonetheless, we presume that guilty plea Form 9-406 (1990) was properly utilized. See Doe v. City of Albuquerque, 1981-NMCA-049, \u00b6 8, 96 N.M. 433, 631 P.2d 728 (\u201c[W]e will indulge all presumptions in favor of the correctness of the procedures in the trial court.\u201d).\n{5} During the hearing regarding Ramirez\u2019s petition to set aside his guilty pleas, Ramirez\u2019s counsel stated that had Ramirez known about the immigration consequences of his guilty pleas, \u201che would not have taken that step at that point.\u201d The Court stated that all parties were in agreement regarding Ramirez\u2019s contentions, and the State did not disagree. The court accepted as true Ramirez\u2019s allegation that he would not have entered guilty pleas in his misdemeanor charges had his attorney advised him of the immigration consequences. However, the court denied Ramirez\u2019s writ, reasoning that Paredez did not apply retroactively.\n{6} On appeal, the Court of Appeals held that Paredez and its federal corollary, Padilla v. Kentucky, 559 U.S. 356, 359-60 (2010) (holding that the Sixth Amendment guarantee of effective assistance of counsel requires a defendant\u2019s attorney to advise the defendant that pleading guilty to charges of transporting marijuana would result in deportation), apply retroactively in the State of New Mexico. State v. Ramirez, 2012-NMCA-057, \u00b6 16, 278 P.3d 569. We granted the State\u2019s petition for writ of certiorari. Since we granted the State\u2019s petition, the United States Supreme Court filed its opinion in Chaidez v. United States, ___U.S.__, 133 S. Ct. 1103 (2013), which stated that its holding in Padilla should not apply retroactively in federal courts because Padilla announced a new rule of criminal procedure. Id. at___, 133 S. Ct. at 1107-08. We decline to follow Chaidez and we affirm the Court of Appeals because since 1990, the New Mexico Supreme Court rules and forms have required an attorney to certify having engaged the client in detail in a guilty plea colloquy that included immigration consequences. Because the requirements that Form 9-406 imposes are not new in New Mexico, our holding in Paredez imposing requirements that were effective in 1990 applies retroactively to 1990, the adoption date of the Form 9-406 amendment that required a defendant to understand the possible immigration consequences of a plea conviction.\nDISCUSSION\n{7} In Paredez, we held that criminal defense attorneys must determine the immigration status of their clients and must advise the client who is not a United States citizen specifically regarding the immigration consequences of a guilty plea, including whether the guilty plea is virtually certain to result in the client\u2019s deportation. 2004-NMSC-036, \u00b6 19. Three key reasons motivated our holding. First, \u201c[d]eportation can often be the harshest consequence of a non-citizen criminal defendant\u2019s guilty plea, so that \u2018in many misdemeanor and low-level felony cases ... [he or she] is usually much more concerned about immigration consequences than about the term of imprisonment.\u2019 \u201d Id. \u00b6 18 (second alteration and omission in original) (quoting Jennifer Welch, Comment, Defending Against Deportation: Equipping Public Defenders to Represent Noncitizens Effectively, 92 Cal. L. Rev. 541,545 (2004)). Second, \u201crequiring... such advice is consistent with the spirit of [the 1992 predecessor to Rule 5-303(E)(5)], which prohibits the district court from accepting a guilty plea without first determining that the defendant has an 'understanding of the immigration consequences of the plea.\u201d Paredez, 2004-NMSC-036, \u00b6 19. Forms 9-406 (applicable to the district courts) and 9-406A NMRA (applicable to magistrate, metropolitan, and municipal courts) are used in New Mexico courts in the course of accepting a guilty plea. See Rules 5-303(E)(5), 6-502(D)(2), 7-502(E)(2), & 8-502(D)(2) (predicating acceptance of a guilty plea by a district, magistrate, metropolitan, or municipal court, respectively, on that court\u2019s colloquy with the defendant directly, assuring the defendant\u2019s understanding of the immigration consequences oftheplea). Third, a noncitizen defendant\u2019s knowing and voluntary guilty plea depends upon that defendant having received proper advice regarding the immigration consequences of the plea. Paredez, 2004-NMSC-036, \u00b6 19.\n{8} InParedez, we also explained what would constitute deficient advice, and therefore ineffective assistance of counsel. See id. \u00b6\u00b6 13-14; see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that to establish ineffective assistance of counsel, a defendant must show that (1) \u201ccounsel\u2019s performance was deficient\u201d and (2) \u201cthe deficient performance prejudiced the defense\u201d). Advising a client that deportation is not a consequence when deportation is a possibility, advising the client that deportation is only a possibility when it is a virtual certainty, or failing to give the client any advice at all regarding immigration consequences all constitute evidence of deficient advice that could satisfy the first prong for ineffective assistance of counsel. Paredez, 2004-NMSC-036, \u00b6\u00b6 15-16. Proof that the defendant would not have pleaded guilty except for the deficient advice demonstrates prejudice. See id. \u00b6 20. If the defendant is prejudiced by the deficient advice, the attorney\u2019s representation was ineffective, and the defendant may withdraw the guilty plea. See id. \u00b6 19.\n{9} Whether Paredez should apply retroactively is an issue of first impression in New Mexico. We review the retroactive application of a judicial opinion de novo. Kersey v. Hatch, 2010-NMSC-020, \u00b6 14, 148 N.M. 381, 237 P.3d 683.\n{10} Chaidez declined to retroactively apply Padilla, Paredez\u2019s federal corollary, because Padilla represented a \u201cnew rule\u201d under the federal analysis formulated in Teague v. Lane, 489 U.S. 288, 290-92 (1989) (adopting the view that \u201cnew rules [of criminal procedure are] not . . . applicable to those cases that have become final before the new rules were announced\u201d), holding limited on other grounds by Lockhart v. Fretwell, 506 U.S. 364, 372-73 (1993). Chaidez,_U.S. at__, 133 S. Ct. at 1107-08 (\u201cPadilla thus announced a \u2018new rule.\u2019 \u201d). The State concedes that this Court is not required to follow Chaidez. See Danforth v. Minnesota, 552 U.S. 264, 280-81 (2008) (holding that Teague was not intended \u201cto limit a state court\u2019s authority to grant relief for violations of new rules of constitutional law when reviewing its own State\u2019s convictions\u201d).\n{11} Pursuant to Teague, New Mexico does not give retroactive effect to a new criminal procedure rule. See Kersey, 2010-NMSC-020, \u00b6\u00b6 1, 25. The test determines whether a previously issued judicial opinion introduced a new rule of criminal procedure or merely expanded upon an already established rule. See id. Under Teague, \u201cnew rules generally should not be afforded retroactive effect unless (1) the rule is substantive in nature, in that it alters the range of conduct or the class of persons that the law punishes, or (2) although procedural in nature, the rule announces a watershed rule of criminal procedure.\u201d Kersey, 2010-NMSC-020, \u00b6 25 (internal quotation marks and citations omitted). A \u201cnew rule\u201d is one that \u201cbreaks new ground or imposes a new obligation on the States ... [or where] the result was not dictated by precedent existing at the time the defendant\u2019s conviction became final.\u201d Id. \u00b6 16 (internal quotation marks and citations omitted). A rale that is not deemed a \u201cnew rule\u201d by this test may apply retroactively.\n{12} Although in Chaidez the United States Supreme Court clarifies \u201cthat a lawyer who neglects to inform a client about the risk of deportation is professionally incompetent,\u201d __U.S. at_, 133 S. Ct. at 1108, the Court held that Padilla imposed \u201ca new obligation\u201d on attorneys to counsel their clients about the immigration consequences of their pleas, id. at 1110-11 (internal quotation marks and citation omitted). Rule 11 of the Federal Rules of Criminal Procedure governs the taking of guilty pleas. See Fed. R. Crim. P. 11. Prior to Chaidez, immigration consequences were not part of the plea colloquy under Rule 11(b). However, in 2013, after Chaidez, Rule 11 was amended to require the court to \u201cinform the defendant of, and determine that the defendant understands, the following . . . that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.\u201d Fed. R. Crim. P. ll(b)(l)(0).\n{13} Unlike the federal system, since 1990 New Mexico has required attorneys in all trial courts to advise their clients of the details of the plea colloquy. Form 9-406 was amended in 1990 to, among other things, require the judge to advise the defendant that a conviction may have an effect on the defendant\u2019s immigration status. Form 9-406 (1990), applicable to allNew Mexico trial courts, also obligated the attorney to certify having explained the plea colloquy to the client in detail. As it existed after amendment in 1990, and as it appeared in 1997 when Ramirez pleaded guilty, Form 9-406 (which applied to Rules 5-303, 6-502, 7-502, and 8-502) provided:\nSTATE OF NEW MEXICO COUNTY OF_______________ IN THE________COURT\nSTATE OF NEW MEXICO\nv. No. __________________\nJohn Doe\nGUILTY PLEA PROCEEDING\nThe defendant personally appearing before me, I have ascertained the following facts, noting each by initialing it.\nJudge\u2019s Initial\n_____1. That the defendant understands the charges set forth in the (complaint) (information) (indictment).\n____2. That the defendant understands the range of possible sentence for the offenses charged, from a suspended sentence to a maximum of_______.\n___3. That the defendant understands the following constitutional rights which the defendant gives up by pleading (guilty) (guilty but mentally ill):\n____(a) the right to trial by jury, if any;\n______(b) the right to the assistance of an attorney at all stages of the proceeding, and to an appointed attorney, to be furnished free of charge, if the defendant cannot afford one;\n_______ (c) the right to confront the witnesses against him and to cross-examine them as to the truthfulness of their testimony;\n_______ (d) the right to present evidence on his own behalf, and to have the state compel witnesses of his choosing to appear and testify;\n______(e) the right to remain silent and to be presumed innocent until proven guilty beyond a reasonable doubt.\n______4. That the defendant wishes to give up the constitutional rights of which the defendant has been advised.\n______5. That there exists a basis in fact for believing the defendant is (guilty) (guilty but mentally ill) of the offenses charged and that an independent record for such factual basis has been made.\n______6. That the defendant and the prosecutor have entered into a plea agreement and that the defendant understands and consents to its terms. (Indicate \u201cNONE\u201d if a plea agreement has not been signed.)\n_____7. That the plea is voluntary and not the result of force, threats or promises other than a plea agreement.\n____8. That under the circumstances, it is reasonable that the defendant plead (guilty) (guilty but mentally ill).\n_____9. That the defendant understands that a conviction may have an effect upon the defendant\u2019s immigration or naturalization status.\nOn the basis of these findings, I conclude that the defendant knowingly, voluntarily and intelligently pleads (guilty) (guilty but mentally ill) to the above charges and accept such plea. A copy of this affidavit shall be made a part of the record in the above-styled case.\nDistrict Judge\nDate\nCERTIFICATE BY DEFENDANT\nI certify that the judge personally advised me of the matters noted above, that I understand the constitutional rights that I am giving up by pleading (guilty) (guilty but mentally ill) and that I desire to plead (guilty) (guilty but mentally ill) to the charges stated.\nDefendant\nSubscribed and sworn to before me this______ day of_, 19___\nClerk, Notary or Other Officer Authorized to Administer Oaths\nThe undersigned attorney hereby certifies that he has conferred with his client with reference to the execution of this affidavit and that he has explained in detail its contents.\nDefense Counsel\n[As amended, effective September 1, 1990.]\n(Emphasis added.)\n{14} A rule may be viewed as new if its \u201cresult was not dictated by precedent existing at the time the defendant\u2019s conviction became final.\u201d Kersey, 2010-NMSC-020, \u00b6 16 (internal quotation marks and citations omitted). The Chaidez majority concluded that Padilla announced a new rule because until Padilla the United States Supreme Court \u201chad declined to decide whether the Sixth Amendment had any relevance to a lawyer\u2019s advice about matters not part of a criminal proceeding.\u201d Chaidez,__U.S. at 133 S. Ct. at 1110. However, in 1990 the New Mexico Supreme Court required lawyers to advise their clients about immigration consequences as part of the criminal guilty plea proceeding. See Form 9-406 (1990). Our holding today aligns with Justice Sotomayor\u2019s dissent in Chaidez, where she wrote,\nPadilla did nothing more than apply the existing rule of Strickland ... in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.\nChaidez,:___U.S. at___, 133 S. Ct. at 1114 (Sotomayor, J., dissenting) (internal citation omitted).\n{15} We surveyed the professional norms relevant in New Mexico, which indicate that counsel was obligated at the time of Ramirez\u2019s arraignment and pleas to certify having conferred with Ramirez about the plea affidavit, including potential immigration consequences of a guilty plea. These professional norms were hardly novel, even in 1990. In 1982, the American Bar Association stated the importance of criminal defense attorneys advising clients about the effect a guilty plea might have on immigration consequences. See 3 ABA Standards for Criminal Justice 14-3.2 cmt., at 75 (2d ed. 1982). The United States Supreme Court acknowledged ABA Standard 14-3.2 in Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 323 n.48 (2001) (\u201c[T]he American Bar Association\u2019s Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel \u2018should fully advise the defendant of these consequences.\u2019\u201d (quoting ABA Standard 14-3.2 cmt., at 75)); Donald J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial, at 209 (Frank J. Remington ed., 1966) (\u201cEffective counseling regarding the likely consequences of the guilty plea requires the lawyer to have intimate knowledge of sentencing provisions and procedures.\u201d).\n{16} At the time Ramirez entered his guilty pleas, additional immigration-specific and general guidelines existed which counseled defense attorneys on how to competently advise clients regarding immigration consequences. In 1995, the National Legal Aid and Defender Association recognized that \u201c[i]n order to develop an overall negotiation plan, counsel should be fully aware of, and make sure the client is fully aware of: . . . (3) other consequences of conviction such as deportation.\u201d National Legal Aid & Defender Association, Performance Guidelines for Criminal Defense Representation Guideline 6.2(a)(3) (1995); F. Lee Bailey & Kenneth J. Fishman, Handling Misdemeanor Cases \u00a7 3.7, at 5-6 (2d ed. 1992) (\u201cIn misdemeanor cases, the possible consequences of a conviction may be so drastic that the defendant must take his or her chances on a trial.... A convicted alien may be deported.\u201d).\n{17} Although we may have decided to follow the maj ority opinion in Chaidez had we not historically included checks regarding immigration consequences in our guilty plea proceedings, the fact is that the State of New Mexico has had such a requirement since 1990. While there is no record ofForm 9-406 (1990) or the corresponding plea colloquy in this case, we have held in other cases where counsel has failed to properly advise a client during the plea entry phase that not even a record of the court\u2019s adherence to the plea colloquy cures the ineffective assistance of counsel. See State v. Hunter, 2006-NMSC-043, \u00b6 29, 140 N.M. 406, 143 P.3d 168 (holding that where a district court \u201cproperly conducted the plea hearing, adhering to our rules governing the entry of pleas,\u201d that proper plea hearing could not \u201ccure a defect caused by ineffective advice of counsel\u201d). In this case, the presumptive plea colloquy between the court and Ramirez required the court to determine whether Ramirez was aware of the potential immigration consequences of his guilty pleas; and the rule prescribing that determination by the court had existed in that form for seven years preceding Ramirez\u2019s arraignment and pleas. We hold today that Ramirez has a viable claim for withdrawal of his 1997 guilty pleas based on ineffective assistance of counsel pursuant to Form 9-406 (1990), which required attorneys to inform their clients in detail of the possible immigration consequences of a guilty plea. We fail to see how our holding in Paredez \u2014 seven years after Ramirez\u2019s pleas and fourteen years after Form 9-406 was amended to require that the trial court assure a defendant\u2019s understanding that a guilty plea could affect the defendant\u2019s immigration status \u2014 announced a new rule.\nCONCLUSION\n{18} We affirm the Court of Appeals and remand this case to the district court to allow Ramirez the opportunity to claim ineffective assistance of counsel and seek withdrawal of his guilty pleas.\n{19} IT IS SO ORDERED.\nEDWARD L. CH\u00c1VEZ, Justice\nWE CONCUR:\nBARBARA J. VIGIL, Chief Justice\nPETRA JIMENEZ MAES, Senior Justice\nRICHARD C. BOSSON, Justice\nCHARLES W. DANIELS, Justice\nThe United States Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security, sent Ramirez its decision on his application for waiver of grounds of inadmissability on June 22, 2009. In its decision, USCIS cited Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. \u00a7 1182(a)(2)(A)(i)(II)) to inform Ramirez that his pleas of \u201cguilty\u201d to the charges of possession of marijuana and other misdemeanors fell within the scope of immigration and citizenship disqualifications, or inadmissibility. TheUSCIS decision also explained why the discretionary power of the Attorney General to waive inadmissibility was not granted to Ramirez, despite the fact that he established that he has a child who is a United States citizen, whom he would be forced to leave behind.", "type": "majority", "author": "CH\u00c1VEZ, Justice." } ], "attorneys": [ "Gary K. King, Attorney General William H. Lazar, Assistant Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM", "for Petitioner", "Dane Eric Hannum Albuquerque, NM", "for Respondent", "Rebecca Kitson Law Rebecca Kitson Albuquerque, NM", "Christopher N. Lasch University of Denver Sturm College of Law Denver, CO", "for Amici Curiae Professors Barbara Bergman, Barbara Creel, Rebecca Kitson, and Jennifer Moore and the National Immigration Project of the National Lawyers Guild", "The Appellate Law Office of Scott M. Davidson, Ph.D., Esq. Scott M. Davidson Albuquerque, NM", "for Amicus Curiae New Mexico Criminal Defense Lawyers Association" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMSC-023\nFiling Date: June 19, 2014\nDocket No. 33,604\nMARTIN RAMIREZ, a/k/a RICHARD G. SANCHEZ, JR., Petitioner-Respondent, v. STATE OF NEW MEXICO, Respondent-Petitioner.\nGary K. King, Attorney General William H. Lazar, Assistant Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM\nfor Petitioner\nDane Eric Hannum Albuquerque, NM\nfor Respondent\nRebecca Kitson Law Rebecca Kitson Albuquerque, NM\nChristopher N. Lasch University of Denver Sturm College of Law Denver, CO\nfor Amici Curiae Professors Barbara Bergman, Barbara Creel, Rebecca Kitson, and Jennifer Moore and the National Immigration Project of the National Lawyers Guild\nThe Appellate Law Office of Scott M. Davidson, Ph.D., Esq. Scott M. Davidson Albuquerque, NM\nfor Amicus Curiae New Mexico Criminal Defense Lawyers Association" }, "file_name": "0308-01", "first_page_order": 324, "last_page_order": 332 }