{ "id": 4240777, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ALEX TEJEIRO, Defendant-Appellant", "name_abbreviation": "State v. Tejeiro", "decision_date": "2014-12-22", "docket_number": "Docket No. 32,161", "first_page": "464", "last_page": "476", "citations": [ { "type": "official", "cite": "2015-NMCA-029" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "339 P.3d 426", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2014-NMCERT-010", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "336 P.3d 977", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240142 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0785-01" ] }, { "cite": "8 U.S.C. \u00a7 1227", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(a)(2)(B)(i)", "parenthetical": "stating that controlled substance offenses short of aggravated felonies do not require mandatory deportation" } ], "opinion_index": 0 }, { "cite": "249 P.3d 1015", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2011, "pin_cites": [ { "page": "1022", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "133 S. Ct. 1103", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12407511 ], "year": 2013, "opinion_index": 0, "case_paths": [ "/us/568/0342-01" ] }, { "cite": "645 F.3d 630", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5650659 ], "year": 2011, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/f3d/645/0630-01" ] }, { "cite": "744 F.3d 44", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4119636 ], "year": 2014, "pin_cites": [ { "page": "53", "parenthetical": "stating that prejudice was demonstrated where defense counsel had negotiated the plea in a certain way \"for the sole reason that defense counsel believed it would not impair [the defendant's] immigration status\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/744/0044-01" ] }, { "cite": "862 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 8342709 ], "year": 2007, "pin_cites": [ { "page": "706", "parenthetical": "finding a reasonable probability that the defendant would have rejected the plea if properly advised due to the \"special circumstances\" that he had a child and wife in the United States" } ], "opinion_index": 0, "case_paths": [ "/ne2d/862/0702-01" ] }, { "cite": "311 F.3d 179", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9301539 ], "year": 2002, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/f3d/311/0179-01" ] }, { "cite": "8 U.S.C. \u00a7 1158", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(b)(2)(B)(i)" } ], "opinion_index": 0 }, { "cite": "8 U.S.C. \u00a7 1226", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(c)(1)(B)" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 924", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "8 C.F.R. \u00a7 241.4", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "533 U.S. 678", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9313599 ], "year": 2001, "pin_cites": [ { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/us/533/0678-01" ] }, { "cite": "120 So. 3d 49", "category": "reporters:state_regional", "reporter": "So. 3d", "case_ids": [ 6997839 ], "year": 2013, "pin_cites": [ { "page": "50", "parenthetical": "stating that the defendant's counsel wrongly advised that the defendant could not be deported because he was Cuban, when in fact deportation consequences were \"inevitable\" for his drug offenses" } ], "opinion_index": 0, "case_paths": [ "/so3d/120/0049-01" ] }, { "cite": "8 U.S.C. \u00a7 1231", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "2007-NMCA-043", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3668378 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" }, { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0491-01" ] }, { "cite": "2001-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352473 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6 30" }, { "page": "\u00b6 18" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0179-01" ] }, { "cite": "8 U.S.C. \u00a7 1101", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "pin_cites": [ { "parenthetical": "a" }, { "page": "(a)(48)(A)(i)", "parenthetical": "incorporating guilty pleas into the definition of \"conviction\" for immigration purposes, ' even if no conviction arises under state law" }, { "parenthetical": "a" }, { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "333 P.3d 240", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": 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"year": 2010, "opinion_index": 0 }, { "cite": "311 P.3d 1213", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2010, "opinion_index": 0 }, { "cite": "2013-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4077581 ], "weight": 12, "year": 2010, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 20" }, { "page": "\u00b6 21" }, { "page": "\u00b6 20" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 21" }, { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0084-01" ] }, { "cite": "1999-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257633 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0218-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "year": 1984, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "1998-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834180 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 32" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0739-01" ] }, { "cite": "2010-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248247 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 46" }, { "page": "\u00b6 46" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0414-01" ] }, { "cite": "474 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197970 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "56" }, { "page": "59", "parenthetical": "stating that for ineffective assistance of counsel claims involving affirmative defenses, \"the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial\"" } ], "opinion_index": 0, "case_paths": [ "/us/474/0052-01" ] }, { "cite": "296 P.3d 1232", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190584 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 37" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0461-01" ] }, { "cite": "2006-NMCA-141", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671936 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 14" }, { "page": "\u00b6 14" }, { "page": "\u00b6 16" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0688-01" ] }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 20, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 1" }, { "page": "\u00b6 19" }, { "page": "\u00b6 22" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" }, { "page": "\u00b6 21" }, { "page": "\u00b6 22" }, { "page": "\u00b6 18" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] } ], "analysis": { "cardinality": 1302, "char_count": 38272, "ocr_confidence": 0.781, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.2873493782842166 }, "sha256": "75dcc4180eb911694833b7245b5ca8205bd4bd1f759cc3357c01f090b0397060", "simhash": "1:9a4b4b00aea78687", "word_count": 5914 }, "last_updated": "2023-07-14T17:10:55.229683+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "MICHAEL E. VIGIL, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ALEX TEJEIRO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\nDefendant Alex Tejeiro appeals from the district court\u2019s ruling on his motion to set aside his guilty plea. He argues that he received ineffective assistance from his attorney, who failed to inform him of the immigration consequences of his plea. We agree. Accordingly, we reverse.\nBACKGROUND\nDefendant, a Cuban immigrant, pleaded guilty to a single count of drug trafficking in November 2003. He received a conditional discharge, which he completed successfully, and the matter was dismissed with prejudice on August 13,2007. He subsequently learned that his plea had possible immigration consequences and filed a motion to set aside his guilty plea on the grounds that his attorney had been ineffective in failing to inform him of that fact. His motion was filed in March 2011. Becaitse the entry of the plea and the motion to withdraw it were heard by different judges, hereafter the court that accepted the guilty plea will be referred to as the \u201ctrial court,\u201d and the court that heard Defendant\u2019s motion to withdraw as the \u201cdistrict court.\u201d\nThe district coitrt initially denied Defendant\u2019s motion, declining to apply Paredez retroactively to his plea agreement, which occurred the year before Paredez was decided. State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799. The district court later reconsidered and set an evidentiary hearing to investigate the merits of Defendant\u2019s claim. At that hearing, the district court again denied Defendant\u2019s motion, stating that Defendant\u2019s counsel was ineffective under Paredez but that Defendant had not been prejudiced by his counsel\u2019s incompetence in accepting the guilty plea. Defendant appealed.\nDISCUSSION\nWhen a defendant moves to withdraw his guilty plea, the district court\u2019s denial of that motion is reviewed for abuse of discretion. State v. Carlos, 2006-NMCA-141, \u00b6 9, 140 N.M. 688, 147 P.3d 897. An abuse of discretion occurs when a district court\u2019s ruling is clearly erroneous or \u201cbased on a misunderstanding of the law[,]\u201d State v. Sotelo, 2013-NMCA-028, \u00b6 37, 296 P.3d 1232, or when the court ignored \u201cundisputed facts [that] established] that the plea was not knowingly and voluntarily given.\u201d Paredez, 2004-NMSC-036, \u00b6 5 (internal quotation marks and citation omitted).\nThe voluntariness of a guilty plea depends on whether counsel performed \u201c \u2018within the range of competence demanded of attorneys in criminal cases.\u2019 \u201d Id. \u00b6 13 (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)) An otherwise valid plea can thus be undermined by ineffective assistance from counsel. Garcia v. State, 2010-NMSC-023, \u00b6 46, 148 N.M. 414, 237 P.3d 716. Indeed, we have found that when a defendant enters a plea upon the advice of his attorney, \u201cthe voluntariness and intelligence of the defendant\u2019s plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea.\u201d State v. Barnett, 1998-NMCA-105, \u00b6 12, 125 N.M. 739, 965 P.2d 323 (emphasis added). As a result, we must assess a motion of this kind on the merits of its claim of ineffective assistance of counsel; such claims are mixed questions of law and fact, and are reviewed de novo. Id. \u00b6 13.\nThe United States Supreme Court has established a two-prong inquiry for determining whether a defendant received ineffective assistance of counsel: (1) the trial counsel\u2019s performance fell below the objective standard of reasonability, and (2) counsel\u2019s incompetence prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Hester, 1999-NMSC-020, \u00b6 9, 127 N.M. 218, 979 P.2d 729. The defendant must demonstrate the satisfaction of both prongs to prove that his plea was not knowing and voluntary and should be set aside.\nA. Defendant\u2019s Counsel Was Incompetent Under Paredez\nOur Supreme Court has recognized the paramount importance of informing defendants of immigration consequences stemming from any guilty pleas. Paredez, 2004-NMSC-036. A defendant\u2019s attorney has \u201can affirmative duty\u201d to determine the specific risk of deportation for his client and to inform his client of the possible impact on his immigration status if he accepts a guilty plea. Id. \u00b6 1. If an attorney provides incorrect advice or misrepresents the consequences of a plea to his client, his performance is obj ectively unreasonable under Strickland4, we require \u201ca definite prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed in federal law for which a defendant can be deported.\u201d Carlos, 2006-NMCA-141, \u00b6 14. Additionally, the Supreme Court concluded that \u201can attorney\u2019s non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance.\u201d Paredez, 2004-NMSC-036, \u00b6 16. An attorney who failed to meet his affirmative burden in providing his client with information about deportation risks would thus necessarily satisfy the first prong of the Strickland analysis. Paredez, 2004-NMSC-036, \u00b6 16.\nThe United States Supreme Court has also confirmed a defendant\u2019s right to be informed of specific immigration consequences that may stem from guilty pleas, but has not done so as broadly as New Mexico. State v. Favela, 2013-NMCA-102, \u00b6 18, 311 P.3d 1213, cert. granted, 2013-NMCER.T-010, 313 P.3d 251. In Padilla v. Kentucky, the United States Supreme Court held that the duty to inform a defendant of immigration consequences arises when \u201cthe deportation consequence is truly clear[.]\u201d 559 U.S. 356, 369 (2010). We have established more stringent requirements for defense attorneys, requiring them to inform their clients of consequences short of deportation and to provide guidance even in cases in which implications for immigration status are not \u201ctruly clear.\u201d Favela, 2013-NMCA-1024 18.\nParedez was decided in 2004, a year after Defendant pleaded guilty. We have since concluded that the standards regarding ineffective assistance of counsel outlined in Paredez apply retroactively. State v. Ramirez, 2012-NMCA-057, \u00b6 5, 278 P.3d 569, aff\u2019d sub. nom. Ramirez v. State, 2014-NMSC-023, 333 P.3d 240. These standards are thus applicable to Defendant\u2019s guilty plea.\nApplying Paredez, we review the record for evidence that Defendant was given appropriate advice regarding the potential impact of a guilty plea on his immigration status. We agree with the district court that such evidence is \u201c[c]learly absent.\u201d Defendant insisted in his own testimony that he had never been informed of the risk of deportation or otherpossible immigration consequences. His attorney was required to provide him with such information, even for those collateral consequences short of clear deportation risk. Favela, 2013-NMCA-102, \u00b6 18. He failed to do so.\nThe record does contain the suggestion that both the trial court and defense counsel wrongly believed the conditional discharge would address deportation concerns. Contemplating the consequences to Defendant if he was \u201ca citizen of another country,\u201d the trial court informed him that he faced possible immigration consequences in case of \u201ca conviction on this charge, especially a deferred or suspended sentence^]\u201d (emphasis added). It then elected to release Defendant on a conditional discharge for a period of five years, and informed Defendant that if he successfully completed probation \u201cthe charge will be dismissed and you honestly can tell the world that you do not have the felony conviction[.]\u201d The district court commented that there was a \u201cglobal understanding at th[e] time\u201d of Defendant\u2019s plea that successful completion of a conditional discharge would allow him to avoid immigration consequences. Defendant later testified that he too operated under this mistaken belief. This understanding was not correct. See 8 U.S.C. \u00a7 1101 (a)(48)(A)(i) (2012).\nThe trial court\u2019s mistaken beliefs as to the immigration consequences for Defendant may account for counsel\u2019s failure to provide accurate advice \u2014 but it does not excuse it. Carlos, 2006-NMCA-141, \u00b6 14. Defendant did indeed face possible deportation to Cuba as a result of his guilty plea, irrespective of whether he was afforded a conditional discharge, and it was incumbent on his attorney to know and inform him of that. Paredez, 2004-NMSC-036, \u00b6 1; see 8 U.S.C. \u00a7 1101(a)(48)(A)(i) (incorporating guilty pleas into the definition of \u201cconviction\u201d for immigration purposes, ' even if no conviction arises under state law).\nFor these reasons, the district court correctly found Defendant\u2019s attorney incompetent under the first prong of Strickland.\nB. Defendant Was Prejudiced by Ineffective Counsel\nWhen an attorney fails to advise his client of the specific immigration consequences of his case, it satisfies the Strickland standard \u201cif the defendant suffers prejudice by the attorney\u2019s omission.\u201d Paredez, 2004-NMSC-036, \u00b6 19. In order to demonstrate such prejudice, a defendant must show that the outcome of the plea process was affected by his counsel\u2019s deficient performance. Id. \u00b6 20. O.ur recent jurisprudence adopts \u201ca broad approach to how a defendant can demonstrate prejudice.\u201d Favela, 2013-NMCA-102, \u00b6 20. According to the United States Supreme Court in Padilla, the petitioner need only show \u201cthat a decision to reject the plea bargain would have been rational under the circumstances.\u201d 559 U.S. at 372. This approach, which is in keeping with New Mexico law, contemplates not merely the possibility of success at trial, but also the opportunity for renegotiation of the plea; it thus focuses on the rationality of rejecting the plea offer rather than the State\u2019s evidence or a defendant\u2019s maximum exposure compared to the actual offer. Favela, 2013-NMCA-102, \u00b6 21.\nA defendant\u2019s testimony may comprise part of the evidence for his claim of prejudice, but generally the claim cannot rest solely on uncorroborated self-serving statements. Patterson v. LeMaster, 2001-NMSC-013, \u00b6 29, 130 N.M. 179, 21 P.3d 1032. Corroborating evidence may include pre-conviction statements or actions that indicate the defendant\u2019s preferences or intentions. Id. \u00b630. A defendant\u2019s behavior after the plea has been entered may also corroborate his statements, e.g. if he acts quickly to withdraw his acceptance of the plea agreement upon learning of immigration consequences. Paredez, 2004-NMSC-036, \u00b6 22. Our courts have placed no limit on the types of relevant evidence a defendant may provide to demonstrate that he would have rejected the plea if given appropriate advice. State v. Edwards, 2007-NMCA-043, \u00b6 36, 141 N.M. 491, 157 P.3d 56. This portion of the Strickland analysis cannot be made according to \u201cmechanical rules,\u201d but must incorporate a variety of factors in order to determine what effect counsel\u2019s incompetent assistance may have had. Barnett, 1998-NMCA-105, \u00b6 32.\nThe district court\u2019s analysis in this case focused on three factors: (1) the absence of pre-conviction statements in which Defendant \u201cmaintained his innocence\u201d or expressed a \u201cdesire[] to fight the charges and take the case to trial},]\u201d (2) the benefits of the plea, and (3) the strength of the State\u2019s case against Defendant. It did not determine whether Defendant\u2019s testimony was merely self-serving or not and limited its evaluation of corroboration to particular types of preconviction evidence. It also placed inappropriate emphasis on the strength of the State\u2019s case and the probable similarity of result if Defendant had chosen to exercise his trial rights. Because Favela, in which this Court clarified how a defendant might demonstrate prejudice, was decided in 2013, the district court lacked the benefit of this clarification at the time ofits decision in 2012, and thus improperly relied on these factors, particularly the strength of the State\u2019s case, in its decision. Favela, 2013-NMCA-102, \u00b6 20.\nGuided by Padilla and Favela, we review the record for a demonstration of prejudice. There are several factors in addition to Defendant\u2019s testimony that corroborate his claims and demonstrate prejudice. First, we consider the harshness of deportation and attribute proper weight to that harshness as an element of any immigrant\u2019s decision-making process. Paredez, 2004-NMSC-036, \u00b6 18. Second, we evaluate Defendant\u2019s testimony itself, which is corroborated in the record at the time of Defendant\u2019s plea, withreferences both oblique and direct to Defendant\u2019s concern about his immigration status and his attachment to this country. We also recognize that Defendant\u2019s post-conviction behavior weighs in his favor, though less significantly in this case than the pre-conviction circumstances. Third, we determine that the factors considered by the district court, when afforded their due weight under our current legal standards, were both factually and legally inadequate grounds for disposing of Defendant\u2019s claim of prejudice. Taken in conjunction with his own testimony, the totality of the factors \u2019 presented firmly establishes a reasonable probability that Defendant would have rejected the plea offer if his attorney had competently advised him. Finally, we conclude that under these circumstances Defendant\u2019s plea was not made knowingly and voluntarily and that it was, therefore, error to accept it.\ni. Harshness of Immigration Consequences\nAs the Supreme Court noted in Paredez, \u201cDeportation can often be the harshest consequence of a non-citizen criminal defendant\u2019s guilty plea[.]\u201d Paredez, 2004-NMSC-036, \u00b6 18. The extremity \u2014 and often finality \u2014 of deportation exposure heightens the probability of prejudice because it is \u201ca particularly severe penalty\u201d and can be \u201cthe most important\u201d result of a guilty plea for non-citizen defendants. Padilla, 559 U.S. at 364-65.\nDefendant testified that he had been a political prisoner in Cuba and that he feared he would face the same fate if forced to return. He stated that the Cuban government had deprived him of all his property when he came to the United States. He described himself as \u201cnot in agreement with Fidel [Castro],\u201d which he believed would result in cruel treatment in his native country even if he avoided imprisonment. The district court apparently agreed that conditions in Cuba are \u201cparticularly horrific.\u201d\nThe record indicates that the district court considered the actual probability of Defendant\u2019s deportation to Cuba, noting, \u201cThey don\u2019t deport people back to Cuba from the United States technically.\u201d The State expressed a similar opinion that \u201cthe United States and Cuba do not have an agreement to return convicted felons back to Cuba under any circumstances[.]\u201d\nTlje arrangements for deportation between the United States and Cuba are a political matter outside the control of either the court or Defendant and are subject to change. Moreover, the district court\u2019s statements do not accurately reflect the current status of Cuban immigrants convicted of deportable offenses. See 8 U.S.C. \u00a7 1231(a)(3), (6) (2012); see also, e.g., Perez v. State, 120 So. 3d 49, 50 (Fla. Dist. Ct. App. 2013) (stating that the defendant\u2019s counsel wrongly advised that the defendant could not be deported because he was Cuban, when in fact deportation consequences were \u201cinevitable\u201d for his drug offenses). Defendant himself attempted to inform the district court of this fact.\nIrrespective of the likelihood of actual deportation to countries such as Cuba, deportable aliens may be detained within the United States pending their removal. Zadvydas v. Davis, 533 U.S. 678, 701 (2001); 8 C.F.R. \u00a7 241.4, 241.5 (2012). In this case, Defendant pleaded guilty to a charge of drug trafficking. Though he successfully completed a conditional discharge and has no criminal record in the state of New Mexico, this plea constituted a conviction of an aggravated felony for immigration purposes. 8 U.S.C. \u00a7 1101 (a)(43)(B); 8 U.S.C. \u00a7 1101 (a)(48)(A)(i); 18 U.S.C. \u00a7 924(c)(2) (2012). Federal law mandates his detention and attempted deportation as a result. 8 U.S.C. \u00a7 1226(c)(1)(B) (2012). He is not eligible for asylum regardless of the conditions and consequences he may face if returned to Cuba. 8 U.S.C. \u00a7 1158(b)(2)(B)(i) (2012). Defendant has not yet been detained or removed, but immigration proceedings have been initiated. Regardless of the state of those proceedings, it is the possibility of deportation \u2014 in addition to other immigration consequences short of deportation \u2014 that we assess for purposes of determining prejudice. Carlos, 2006-NMCA-141, \u00b6 16. We recognize that deportation is a particularly difficult and harsh result for many defendants, Paredez, 2004-NMSC-036, \u00b6 18, and this Defendant in particular testified that he was \u201cabused in Cuba\u201d and imprisoned for his political views. For reasons like these, we analyze prejudice in immigration-based ineffective assistance of counsel claims differently from other types of claims. Favela, 2013-NMCA-102, \u00b6 21. The district court failed to account for the severity of this punishment and the increased likelihood that a person faced with deportation might reconsider his decision to accept a guilty plea. Paredez, 2004-NMSC-036, \u00b6 18.\nii. Defendant\u2019s Testimony and Corroborating Evidence\nDefendant argues that he was prejudiced \u201cby accepting a plea that made certain his deportation with the prospect of indefinite detainment to a country where he had been a political prisoner, where he had no employment, family},] or property, [and] where he was subjected to abuse}.]\u201d He claims that there is a reasonable probability that he would instead have elected to go to trial, which \u201cwould have provided him [the] opportunity to maintain his employment, to stay close to his family, and to live as a free resident[.]\u201d He consistently maintained that his immigration status within this country is of utmost importance to him, and stated that he acted to set aside his guilty plea upon realizing that it carried negative consequences for that status. He also asserted that he would have rejected the plea offer at the outset if he had known of the possibility of deportation. We find corroboration for several of Defendant\u2019s claims in the record.\n\u201cDeportation can often be the harshest consequence of a non-citizen criminal defendant\u2019s guilty plea,\u201d Paredez, 2004-NMSC-036, \u00b6 18, particularly in cases like Defendant\u2019s, where the immigrant has established roots within this country. For over a decade, Defendant has lived in the United States with his family. We consider Defendant\u2019s attachmentto the United States as one of the types of evidence he may present to corroborate his current claims. Edwards, 2007-NMCA-043, \u00b6 36; see also United States v. Couto, 311 F.3d 179, 191 (2d Cir. 2002), abrogated on other grounds by Padilla, 559 U.S. 356 (recognizing \u201c[the defendant's overriding concern is remaining in the United States and hence she very likely would not have pleaded guilty if she had understood the deportation consequences of [her] plea\u201d); Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2007) (finding a reasonable probability that the defendant would have rejected the plea if properly advised due to the \u201cspecial circumstances\u201d that he had a child and wife in the United States). \u25a0\nIn his testimony, Defendant identified that seeing his children, who reside in the United States, was always a priority. The trial court\u2019s personal notes corroborate the assertion that Defendant expressed that sentiment prior to the court\u2019s acceptance of his guilty plea, and that he made the court aware that he had a daughter residing in Miami. It is evident from these notes and the record that all parties, including the court, realized that Defendant\u2019s immigration status was threatened.\nDefendant\u2019s attorney provided incompetent advice regarding the impact of the conditional discharge, as the district court properly concluded, and the trial court itself made statements suggesting it believed that Defendant would not have a conviction if he successfully completed the conditional discharge. The trial court coupled this explanation with references to Defendant\u2019s foreign citizenship \u2014 clearly implying that all present knew of or suspected his status and intended to provide Defendant an option that preserved it. The trial court\u2019s notes reveal that it specifically considered sentencing options in light of Defendant\u2019s immigration status and the possibility of deportation. In noting that Defendant requested the conditional discharge, the court listed only two facts: that Defendant was deportable and that he had a daughter in Miami. The record thus corroborates Defendant\u2019s claim that the threat of deportation ranked high amongst his concerns in these proceedings, and that he communicated that fact to both his attorney and the trial court.\nDefendant\u2019s pre-conviction efforts to inform the trial court of his circumstances and his clear, acknowledged intent to avoid deportation and other immigration consequences at all times during the plea proceedings strongly support the conclusion that he would have rejected the plea if properly advised. See Kovacs v. United States, 744 F.3d 44, 53 (2d Cir. 2014) (stating that prejudice was demonstrated where defense counsel had negotiated the plea in a certain way \u201cfor the sole reason that defense counsel believed it would not impair [the defendant\u2019s] immigration status\u201d). The district court erred in neglecting these portions of the record in its analysis.\nFurthermore, Defendant is not limited to pre-conviction behavior in his demonstration of prejudice; the district court should also have considered his post-conviction behavior. Edwards, 2007-NMCA-043, \u00b6 36. In Paredez, our Supreme Court held that the speed of a defendant\u2019s post-conviction reaction upon discovering the adverse immigration consequences of his guilty plea could be considered when weighing the reasonable probability that he would have acted differently with competent advice. Paredez, 2004-NMSC-036, \u00b6 21 (stating that such an inference of prejudice is \u201clogical\u201d but not \u201cconclusive[]\u201d).\nIn this case, Defendant claims that his goal is to obtain citizenship. He did apply for naturalization, but was determined ineligible. The letter informing him of this fact also contained reference to the possibility that he was \u201camenabfle] to removal,\u201d bolstering the likelihood that Defendant discovered the threat to his immigration status only upon receipt of the letter in November 2010. He testified that he researched the issue himself and then immediately obtained a lawyer. He moved to withdraw his guilty plea in early 2011. Though these actions cannot be \u201cconclusive[,]\u201d we consider them alongside the other corroborating evidence Defendant presented to demonstrate prejudice and recognize that they further support his claim that he would have rejected the plea offer if provided reasonable assistance. Id.\nThe district court failed to consider Defendant\u2019s post-conviction actions at all. It assessed only pre-conviction statements, and further narrowed its evaluation to two methods for Defendant to demonstrate prejudice: (1) protestations of innocence, and (2) expressions of his desire to go to trial. Though either of these two methods could have been employed to demonstrate prejudice, Defendant may use a wide array of other evidence to show the prejudicial effect of the incompetent counsel. Edwards, 2007-NMCA-043, \u00b6 36. The district court improperly overlooked the other undisputed corroboration within the record. It thus clearly erred in saying that the \u201conly evidence presented in this case [was] the hearing testimony of [Defendant.\u201d\niii. The District Court Improperly Relied on Lesser Factors\nThe district court placed particular emphasis on the strength of the State\u2019s case in determining whether Defendant had suffered prejudice. The State had a convincing prima facie case against Defendant; a person cooperating with the police arranged a purchase of five hundred dollars\u2019 worth of crack-cocaine, which resulted in law enforcement officers arresting Defendant as he arrived with 52 rocks worth approximately five hundred dollars.\nIn conjunction with the strength of the State\u2019s case, the district court considered the favorability of the plea agreement. In Paredez, the Court observed that the defendant received a \u201csubstantial benefit\u201d from his plea agreement, which did not require incarceration; \u201cIt is conceivable that a non-citizen might opt to plead guilty and accept deportation to avoid serving a prison sentence, rather than face the possibility of both incarceration and deportation.\u201d 2004-NMSC-036, \u00b6 22. In this case, the decision was arguably further simplified when Defendant received the conditional discharge rather than a term of imprisonment.\nThe district court weighed the favorability of the plea agreement against Defendant\u2019s \u201clikely conviction\u201d on the facts as presented at the plea colloquy, which may have exposed Defendant ' to immigration proceedings regardless, and determined that Defendant did not demonstrate prejudice. Its ruling also faulted Defendant for not \u201cmaintain[ing] his innocence\u201d or expressing a desire for trial prior to conviction. We note that protestations of innocence and expressions of desire for trial are both possible examples of pre-conviction behavior that, if present, would be a valid part of the prejudice analysis. Patterson, 2001-NMSC-013, \u00b6 30 (stating that the defendant\u2019s claims of innocence were examples of pre-conviction behavior that may indicate disposition to reject the plea, and were considered alongside other evidence). Neither, however, is required to show prejudice, nor do they constitute an exhaustive list of ways in which a defendant may demonstrate prejudice. Edwards, 2007-NMCA-043, \u00b6 36. We also find that the district court\u2019s heavy, almost exclusive reliance on the strength of the State\u2019s case and the benefits of the plea was improper because it contradicts the standard set forth in Favela. 2013-NMCA-102, \u00b6 21.\nThe strength of the State\u2019s case may be considered as part of a larger analysis of prejudice, Carlos, 2006-NMCA-141, \u00b6 20,but \u201cshould not weigh as heavily, because the relevant initial inquiry is simply whether, given fully accurate information about the collateral consequence, it is reasonably probable that the defendant would have rejected the plea offer.\u201d Favela, 2013-NMCA-102, \u00b6 21 -(alteration, omission, internal quotation marks, and citation omitted). Even in eases in which acquittal is unlikely and the possible penalty for conviction at trial is severe, non-citizen defendants \u201crationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of [conviction].\u201d United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013); State v. Sandoval, 249 P.3d 1015, 1022 (Wash. 2011) (en banc) (rejecting the plea even at the risk of conviction at trial would be particularly reasonable for a defendant who \u201chad earned permanent residency and made this country his home\u201d).\nThe district court expressed the opinion that, based on the State\u2019s presentation, \u201cChances Were pretty high that [the] evidence was going to be presented to a jury, that he\u2019s going to be convicted.\u201d The court stated that Defendant \u201cgot... the benefit of the plea\u201d and received \u201ceverything that his attorney promised, but for this unforeseen, by everybody, consequence.\u201d It called the situation \u201ctragic.\u201d\nHowever, the district court also agreed that Defendant probably did not obtain a better result by his plea than he would have at trial. At the time of the plea, the trial court considered only three options: suspended sentence, deferred sentence, and conditional discharge. All parties agreed that probation was appropriate for Defendant, including the State. In addition to offering a sentence without any incarceration time, the State did not object to arguments for a conditional discharge. As the district court itself acknowledged, had a trial taken place, Defendant \u201cprobably would have gotten probation\u201d because he \u201cwas really a mule.\u201d The risk that Defendant faced at trial was therefore a minimal one, as he was likely to attain substantially the same result but would retain the chance to avoid immigration consequences \u2014 a chance he might rationally have preferred to the then-unknown automatic consequences of his guilty plea.\nDuring his testimony- at the evidentiary hearing in 2012, Defendant asserted an affirmative defense to the trafficking charge, claiming he operated as a mule under duress. He admitted that he had not discussed with his attorney the possibility of using this defense at trial, as his attorney strongly encouraged him to accept the plea. Though the existence of an affirmative defense in this case would increase the probability that Defendant might have gone to trial rather than face immigration consequences, Defendant\u2019s lawyer never testified and so could offer no evidence regarding the possible existence of an affirmative defense. Both parties agreed that the attorney could not remember the case after the significant time lapse. Without further corroboration of the elements of this defense and its likelihood of succeeding at trial, we cannot weigh it against the strength of the State\u2019s evidence at the time of the plea proceeding. Hill, 474 U.S. at 59 (stating that for ineffective assistance of counsel claims involving affirmative defenses, \u201cthe resolution of the \u2018prejudice\u2019 inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial\u201d).\nWhether or not the affirmative defense had merit, the record contains clear indications that the parties identified substantial mitigation in the case, which they considered in both plea negotiations and sentencing before agreeing that Defendant merited probation. At the guilty plea hearing, Defendant\u2019s attorney referenced a meeting in .chambers, reminding the court that it was \u201caware of how it came down\u201d and thus asking the court for a conditional discharge. The attorney further stated, \u201cHe was \u2014 in discussions in chambers, as you\u2019ll recall, Judge, the indication was, he was a mule[.]\u201d The court also specifically reminded Defendant that he was not to discuss whether the cocaine belonged to him or whether he was \u201conly helping somebody else\u201d in his colloquy, stating only whether he had possessed it. These references are substantial enough to corroborate portions ofDefendant\u2019s recent testimony and to underline that Defendant received no extreme benefit from pleading guilty as compared to his probable trial results. The district court agreed, but found that in either circumstance Defendant would have been exposed to the same possibility of deportation \u2014 and therefore he was not prejudiced by his plea. \u201c[W]e don\u2019t have anything that could have been different,\u201d it stated.\nThe district court manifestly applied the wrong standard to Defendant\u2019s motion. It weighed Defendant\u2019s probable result at trial against the terms of his current plea, concluding that they were essentially the same. This conclusion ignores the possibility that an affirmative defense might have existed that could have impacted the results of the trial. Defendant is not required to demonstrate that he would have obtained a better result at trial than he received from his plea. Edwards, 2007-NMCA-043, \u00b6 34. He need only demonstrate a reasonable probability that he would have rejected the plea as offered had he known of its immigration consequences. Favela, 2013-NMCA-102, \u00b6 21. Had Defendant rejected the plea, he would have had the opportunity to renegotiate its terms \u2014 perhaps, e.g., agreeing to plead to an offense that would not be defined as an aggravated felony under federal immigration law \u2014 or take his case to trial, where any result may have been obtained. Id.\nThe district court\u2019s undue emphasis on the strength of the State\u2019s case and the apparent appeal of the plea offer, which resultedin a relatively favorable disposition of the conditional discharge, also fails to account for both the unique hardship of immigration consequences and the normal operation of plea bargain negotiations. Id. \u00b6 20. Possible deportation is such a drastic result that, in cases in which a defendant is unlikely to receive much prison time, he \u201cis usually much more concerned about immigration consequences than about the term of imprisonment.\u201d Paredez, 2004-NMSC-036, \u00b6 18 (internal quotation marks and citation omitted). Defendant\u2019s rejection of the plea offer in this case would have been entirely rational if he had been aware that he might be deported as a result of accepting it; both the factual aspects of the record and the Defendant\u2019s own expressed eagerness to defend his immigration status suggest that there is indeed a reasonable probability that he would have behaved differently if afforded the effective counsel to which he was entitled.\nAll parties appear to have been acting with the conscious intent to preserve Defendant\u2019s immigration status but pursued that end operating on mistaken beliefs. Under these circumstances, a plea to a lesser charge was a distinct possibility if Defendant and his counsel had been properly informed. Certain possession charges, for example, are not aggr\u00e1vated felonies under federal law and would have resulted in less dramatic collateral consequences. 8 U.S.C. \u00a7 1227(a)(2)(B)(i) (2012) (stating that controlled substance offenses short of aggravated felonies do not require mandatory deportation). We therefore rejectthe district court\u2019s finding that there was no prejudice to Defendant.\niv. Voluntariness of Plea When Counsel Is Ineffective\nThe voluntariness of a guilty plea depends on whether counsel provided the effective assistance to which defendants are constitutionally entitled. Garcia, 2010-NMSC-023, \u00b6 46; Barnett, 1998-NMCA-105, \u00b6 12. Improper advice regarding immigration consequences can undermine the knowing and voluntary nature of a guilty plea and render it invalid. Paredez, 2004-NMSC-036, \u00b6 19. In this case, \u201cundisputed facts\u201d in the record established that Defendant never received competent counsel but rather received incorrect advice regarding the immigration consequences of his plea. Id. \u00b6 5. Defendant also established a \u201creasonable probability\u201d that he would have rejected the plea if aware of those consequences, thus demonstrating prejudice. Patterson, 2001-NMSC-013, \u00b6 18 (internal quotation marks and citation omitted). In these circumstances, Defendant\u2019s plea could not have been knowing and voluntary, and it was thus manifest error to accept it. Barnett, 1998-NMCA-105, \u00b6 12; Sotelo, 2013-NMCA-028, \u00b6 37.\nIn analogous circumstances regarding sex offender registration, we found that a defendant demonstrated prejudice when: (1) he later testified that he \u201cwould have fought\u201d the charge if he had known it was a sex offense that would subject him to registration; (2) he presented other evidence that the State and his own attorney failed to realize the offense would require registration \u2014 and consequently did not advise him of that fact; and (3) the consequences, namely sex offender registration, were harsh. State v. Trammell, 2014-NMCA-107, \u00b6 18, 336 P.3d 977 (internal quotation marks and citation omitted), cert granted, 2014-NMCERT-010, 339 P.3d 426. We concluded that, in such circumstances, sex offender registration prejudiced the defendant because \u201cit constituted a breakdown in the fundamental fairness of the proceedings.\u201d Id.\nIn this case, Defendant testified unequivocally at the evidentiary hearing, \u201cI would rather be in prison here, other than going back to Cuba.\u201d He claims that he would have rejected the plea outright had he known of the consequences for his immigration status. He also presented evidence, which indeed persuaded the district court, that his lawyer and the trial court both seemed unaware of the specific impacts that would stem from a guilty plea, and that no one provided him with effective, reasonable advice with which he might make an informed decision. In both of these respects, the present case closely mirrors our ruling in Trammell, the possible result of deportation, however, has been acknowledged a uniquely grave consequence. Favela, 2013-NMCA-102, \u00b6 20. Therefore, the same logic applies here as in Trammell \u2014 the collateral consequences to which Defendant is now exposed constitute a breakdown in the fundamental fairness of the plea process and require that his guilty plea be set aside. Trammell, 2014-NMCA-107, \u00b6 18.\nCONCLUSION\nThe district court properly concluded that Defendant\u2019s counsel acted incompetently, but in its prejudice analysis it failed to consider the evidence that Defendant\u2019s testimony was not merely \u201cself-serving,\u201d but could be corroborated by the record. Patterson, 2001-NMSC-013, \u00b6 29. It also applied an improper standard for assessing the likelihood that Defendant would have rejected the plea. Noting the likelihood that Defendant would obtain a similar sentence to the one he received under the plea agreement if he went to trial, the district court here improperly asked \u201c[w]ould the result reasonably [have] been different than it is today?\u201d rather than whether there was a \u201creasonable probability\u201d that Defendant would have rejected the plea with competent advice. Defendant was not obligated to show that he might have obtained a \u201cdifferent result\u201d at trial than he obtained with his plea; he was only required to show that rejecting the plea was a rational, reasonably likely course of action in light of his circumstances. Favela, 2013-NMCA-102, \u00b6 20. We determine that he did so.\nFor this reason, and in light of the similarities to Trammell, we reverse the district court\u2019s denial of Defendant\u2019s motion to set aside his guilty plea and remand for further proceedings in keeping with this decision.\nIT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nWE CONCUR:\nMICHAEL E. VIGIL, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "BUSTAMANTE, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Sri Mull\u00eds, Assistant Attorney General Albuquerque, NM for Appellee", "Ben A. Ortega Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-029\nFiling Date: December 22, 2014\nDocket No. 32,161\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ALEX TEJEIRO, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Sri Mull\u00eds, Assistant Attorney General Albuquerque, NM for Appellee\nBen A. Ortega Albuquerque, NM for Appellant" }, "file_name": "0464-01", "first_page_order": 480, "last_page_order": 492 }