Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 82175-5
Title of Case: State v. Sandoval
File Date: 03/17/2011
Oral Argument Date: 06/10/2010


SOURCE OF APPEAL
----------------
Appeal from Grant County Superior Court
06-1-00500-0
Honorable Evan E Sperline


JUSTICES
--------
Barbara A. Madsen Signed Concurrence of Stephens, J.
Charles W. Johnson Signed Majority
Gerry L. Alexander Signed Majority
Tom Chambers Signed Concurrence of Stephens, J.
Susan Owens Signed Majority
Mary E. Fairhurst Majority Author
James M. Johnson Concurrence Author
Debra L. Stephens Concurrence Author
Charles K. Wiggins Did Not Participate
Richard B. Sanders,
Justice Pro Tem. Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Douglas Robert Mitchell
Grant County Prosecutor's Office
Po Box 37
Ephrata, WA, 98823-0037

Amicus Curiae on behalf of American Civil Liberties Union
Sarah a Dunne
ACLU of Washington Foundation
901 5th Ave Ste 630
Seattle, WA, 98164-2008


Nancy Lynn Talner
Attorney at Law
901 5th Ave Ste 630
Seattle, WA, 98164-2008


Michelle Jensen
US Customs & Border Protection
1000 2nd Ave Ste 2550
Seattle, WA, 98104-3632

Amicus Curiae on behalf of Washington Defender Association
Travis Stearns
Washington Defender Association
110 Prefontaine Pl S Ste 610
Seattle, WA, 98104-2626


Ann Benson
Washington Defender Association
110 Prefontaine Place South
Suite 610
Seattle, WA, 98104

Amicus Curiae on behalf of Washington Association of Crimin
Travis Stearns
Washington Defender Association
110 Prefontaine Pl S Ste 610
Seattle, WA, 98104-2626


Ann Benson
Washington Defender Association
110 Prefontaine Place South
Suite 610
Seattle, WA, 98104

Amicus Curiae on behalf of Northwest Immigrant Rights Proje
Travis Stearns
Washington Defender Association
110 Prefontaine Pl S Ste 610
Seattle, WA, 98104-2626


Ann Benson
Washington Defender Association
110 Prefontaine Place South
Suite 610
Seattle, WA, 98104

Amicus Curiae on behalf of American Immigration Lawyers Ass
Travis Stearns
Washington Defender Association
110 Prefontaine Pl S Ste 610
Seattle, WA, 98104-2626


Ann Benson
Washington Defender Association
110 Prefontaine Place South
Suite 610
Seattle, WA, 98104

Amicus Curiae on behalf of Washington Association of Prosec
James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362








IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, )
)
v. ) No. 82175-5
)
VALENTIN SANDOVAL )
) EN BANC
Petitioner. )
)
In the Matter of the Personal Restraint of ) Filed March 17, 2011
)
VALENTIN SANDOVAL, )
)
Petitioner. )
__________________________________ )

FAIRHURST, J. -- The question presented is whether, in light of the United

States Supreme Court's decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct.

1473, 176 L. Ed. 2d 284 (2010), a noncitizen criminal defendant can be denied the

right to effective assistance of counsel when the defense attorney erroneously

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

assures the defendant that the deportation consequence of a guilty plea can be

mitigated.

I. FACTUAL AND PROCEDURAL HISTORY

Valentin Sandoval, a noncitizen permanent resident of the United States, was

charged with rape in the second degree. The prosecutor offered, in exchange for a

guilty plea, to reduce the charge to rape in the third degree. Sandoval conferred with

his attorney and said that he did not want to plead guilty if the plea would result in

his deportation. Sandoval's attorney recalls Sandoval as being "very concerned"

that he would be held in jail after pleading guilty and subjected to deportation

proceedings. Pers. Restraint Pet. (PRP), Ex. 1, at 2. Sandoval's counsel advised him

to plead guilty: "I told Mr. Sandoval that he should accept the State's plea offer

because he would not be immediately deported and that he would then have

sufficient time to retain proper immigration counsel to ameliorate any potential

immigration consequences of his guilty plea." Id. Sandoval explains, "I trusted my

attorney to know that what he was telling me was the truth." Statement of

Additional Grounds for Review at 1.

Sandoval followed his counsel's advice and pleaded guilty on October 3,

2006. The statement on plea of guilty, that Sandoval signed, contained a warning

about immigration consequences: "If I am not a citizen of the United States, a plea

2

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

of guilty to an offense punishable as a crime under state law is grounds for

deportation, exclusion from admission to the United States, or denial of

naturalization pursuant to the laws of the United States." Clerk's Papers at 10.

During a colloquy with the court, Sandoval affirmed that his counsel, with an

interpreter's help, had reviewed the entire plea statement with Sandoval. After the

original sentencing hearing was continued, Sandoval was sentenced on January 23,

2007 to the standard range of 6 to 12 months in jail, with credit for time served.

Before Sandoval was released from jail, the United States Customs and

Border Protection put a "hold" on Sandoval that prevented him from being released

from jail. Deportation proceedings against Sandoval then began. Sandoval now

claims, "I would not have pleaded guilty to Rape in the Third Degree if I had known

that this would happen to me." Statement of Additional Grounds for Review at 1.

Sandoval appealed, claiming his plea was not knowing, voluntary, or

intelligent due to ineffective assistance of counsel, and he filed a concurrent PRP.

The deportation proceedings were stayed. The Court of Appeals consolidated the

appeal and the PRP, and in an unpublished opinion, affirmed the conviction and

denied the PRP. State v. Sandoval, noted at 145 Wn. App. 1017, 2008 WL

2460282, at *1.

We granted Sandoval's petition for review. State v. Sandoval, 165 Wn.2d

3

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

1031, 203 P.3d 381 (2009). Subsequently, the United States Supreme Court

decided Padilla. We requested and received additional briefing.

II. STANDARD OF REVIEW

Ordinarily, a personal restraint petitioner alleging constitutional error must

show actual and substantial prejudice. See In re Pers. Restraint of Lord, 152 Wn.2d

182, 188, 94 P.3d 952 (2004). This actual and substantial prejudice standard does

not apply when the petitioner has not had a prior opportunity to appeal the issue to a

disinterested judge. See In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214,

227 P.3d 285 (2010). However, if some other showing of prejudice is required by

the law underlying the petitioner's claim of constitutional error, the petitioner must

make the requisite showing of prejudice. Id. at 214-15.

Sandoval had to bring a PRP to meet his burden of proving ineffective

assistance of counsel because his counsel's advice does not appear in the trial court

record. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) ("If a

defendant wishes to raise issues on appeal that require evidence or facts not in the

existing trial record, the appropriate means of doing so is through a personal

restraint petition, which may be filed concurrently with the direct appeal."). Because

of this unique procedural obstacle to Sandoval's ineffective assistance claim, he has

not "already had an opportunity to appeal to a disinterested judge." Grantham, 168

4

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

Wn.2d at 214. Thus, Sandoval does not have to show actual and substantial

prejudice; his burden is only to show that he is entitled to relief for one of the

reasons listed in RAP 16.4(c). See Grantham, 168 Wn.2d at 214. Sandoval still has

the burden of establishing the prejudice required for a claim of ineffective assistance

of counsel based on an attorney's advice during the plea bargaining process. See

Padilla, 130 S. Ct. at 1485; Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366,

88 L. Ed. 2d 203 (1985).

III. ANALYSIS

The Sixth Amendment right to effective assistance of counsel encompasses

the plea process. In re Pers. Restraint of Riley, 122 Wn.2d 772, 780, 863 P.2d 554

(1993); McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d

763 (1970). Counsel's faulty advice can render the defendant's guilty plea

involuntary or unintelligent. Hill, 474 U.S. at 56; McMann, 397 U.S. at 770-71. To

establish the plea was involuntary or unintelligent because of counsel's inadequate

advice, the defendant must satisfy the familiar two-part Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test for ineffective

assistance claims--first, objectively unreasonable performance, and second,

prejudice to the defendant. Ordinary due process analysis does not apply. Hill, 474

U.S. at 56-58.

5

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

A. Did the advice of Sandoval's attorney meet the constitutional standard of
competence for advice about immigration consequences?

Before Padilla, many courts believed that the Sixth Amendment right to

effective assistance of counsel did not include advice about the immigration

consequences of a criminal conviction. See Padilla, 130 S. Ct. at 1481 n.9.

However, in Padilla, the United States Supreme Court rejected this limited

conception of the right to counsel. Id. at 1481-82. The Court recognized that

deportation is "intimately related to the criminal process" and that "recent changes

in our immigration law have made removal nearly an automatic result for a broad

class of noncitizen offenders." Id. at 1481. Because of deportation's "close

connection to the criminal process," advice about deportation consequences falls

within "the ambit of the Sixth Amendment right to counsel." Id. at 1482.

Padilla describes the advice that a constitutionally competent defense

attorney is required to give about immigration consequences during the plea process.

"Immigration law can be complex," as Padilla recognizes, and so the precise advice

required depends on the clarity of the law. Id. at 1483. If the applicable immigration

law "is truly clear" that an offense is deportable, the defense attorney must correctly

advise the defendant that pleading guilty to a particular charge would lead to

deportation. Id. If "the law is not succinct and straightforward," counsel must

6

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

provide only a general warning that "pending criminal charges may carry a risk of

adverse immigration consequences." Id. In other words, even if immigration law

does not reveal clearly whether the offense is deportable, competent counsel informs

the defendant that deportation is at least possible, along with exclusion, ineligibility

for citizenship, and any other adverse immigration consequences. Padilla rejected

the proposition that only affirmative misadvice about the deportation consequences

of a guilty plea, but not the failure to give such advice, could constitute ineffective
assistance of counsel. Id. at 1484.1

Padilla itself is an example of when the deportation consequence is "truly

clear." Id. Jose Padilla pleaded guilty to transporting a significant amount of

marijuana in his truck, an offense that was obviously deportable under 8 U.S.C. §

1227(a)(2)(B)(i):

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 . . . 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.

(Emphasis added.) This statute is "succinct, clear, and explicit in defining the

1In analyzing Sandoval's case, the Court of Appeals relied on In re Personal Restraint of
Yim, 139 Wn.2d 581, 587-89, 989 P.2d 512 (1999), which held that because deportation was
merely a collateral consequence of a guilty plea, anything short of an affirmative misrepresentation
by counsel of the plea's deportation consequences could not support the plea's withdrawal.
Sandoval, 2008 WL 2460282, at *2. Padilla has superseded Yim's analysis of how counsel's
advice about deportation consequences (or lack thereof) affects the validity of a guilty plea.
7

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

removal consequence for Padilla's conviction." Padilla, 130 S. Ct. at 1483. By

simply "reading the text of the statute," Padilla's lawyer could determine that a plea

of guilty would make Padilla eligible for removal. Id.

To assess whether Sandoval's counsel's advice to Sandoval meets the Padilla

standard, we must first determine whether the relevant immigration law is truly clear

about the deportation consequences. Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny

felon who is convicted of an aggravated felony at any time after admission is

deportable." "Aggravated felony" is defined in 8 U.S.C. § 1101(a)(43)(A) to include

"murder, rape, or sexual assault of a minor." The charges here, rape in the second

degree and rape in the third degree, appear to be deportable offenses because they

fit the definition of "aggravated felony." Sandoval's counsel had to take the extra

step of reviewing the definition of "aggravated felony," whereas Padilla's counsel

had to look only at the face of 8 U.S.C. § 1227(a)(2)(B)(i). Further, although

determining whether a state crime is a "rape" under federal immigration law is not

always a simple matter, the Ninth Circuit Court of Appeals interprets the term

"rape" in 8 U.S.C. § 1101(a)(43)(A) "by 'employing the ordinary, contemporary,

and common meaning' of that word and then determin[ing] whether or not the

conduct prohibited by [state law] falls within that common, everyday definition."

Castro-Baez v. Reno, 217 F.3d 1057, 1059 (9th Cir. 2000) (citation omitted)

8

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

(quoting United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999)). In

this case, we think the law was straightforward enough for a constitutionally

competent lawyer to conclude that a guilty plea to RCW 9A.44.060(1)(a) (rape in

the third degree, lack of consent) would have subjected Sandoval to deportation.

Therefore, Sandoval's counsel was required to correctly advise, or seek consultation

to correctly advise, Sandoval of the deportation consequence.

The State and amicus Washington Association of Prosecuting Attorneys

(WAPA) argue that Sandoval's counsel's advice was proper. From their

perspective, counsel discussed the risk of deportation with Sandoval, and counsel

appropriately relied on his prior experience to assess Sandoval's chances and

recommend a mitigation strategy. Further, WAPA notes, counsel's assurance was

limited to telling Sandoval that he would not be "immediately deported," PRP,

exhibit 1, at 2, not that he would never be deported. The State and WAPA also

argue that the guilty plea statement contained a warning about the immigration
consequences of pleading guilty, as required by RCW 10.40.200,2 and the judge

2This statute provides, in relevant part:
Prior to acceptance of a plea of guilty to any offense punishable as a crime under
state law, except offenses designated as infractions under state law, the court shall
determine that the defendant has been advised of the following potential
consequences of conviction for a defendant who is not a citizen of the United
States: Deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States. A defendant signing a
guilty plea statement containing the advisement required by this subsection shall be
presumed to have received the required advisement. If, after September 1, 1983,
9

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

confirmed in a colloquy that Sandoval reviewed the statement with his counsel.

These arguments are unavailing for two principal reasons.

First, defense counsel's mitigation advice may not be couched with so much

certainty that it negates the effect of the warnings required under Padilla. The

required advice about immigration consequences would be a useless formality if, in

the next breath, counsel could give the noncitizen defendant the impression that he

or she should disregard what counsel just said about the risk of immigration

consequences. Under Padilla, counsel can provide mitigation advice. However,

counsel may not, as Sandoval's counsel did, assure the defendant that he or she

certainly "would not" be deported when the offense is in fact deportable. That

Sandoval was subjected to deportation proceedings several months later, and not

"immediately" as his counsel promised, makes no difference. Sandoval's counsel's

advice impermissibly left Sandoval the impression that deportation was a remote

possibility.

the defendant has not been advised as required by this section and the defendant
shows that conviction of the offense to which the defendant pleaded guilty may
have the consequences for the defendant of deportation, exclusion from admission
to the United States, or denial of naturalization pursuant to the laws of the United
States, the court, on defendant's motion, shall vacate the judgment and permit the
defendant to withdraw the plea of guilty and enter a plea of not guilty. Absent a
written acknowledgement by the defendant of the advisement required by this
subsection, the defendant shall be presumed not to have received the required
advisement.
RCW 10.40.200(2).
10

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

The second reason that Sandoval's counsel's advice was unreasonable,

contrary to the State and WAPA's argument, is that the guilty plea statement

warnings required by RCW 10.40.200(2) cannot save the advice that counsel gave.

In Padilla, the Commonwealth of Kentucky used a plea form that notifies

defendants of a risk of immigration consequences, and the Court even cited RCW

10.40.200, noting the Washington statute provides a warning similar to Kentucky's.

See 130 S. Ct. at 1486 n.15. However, the Court found RCW 10.40.200 and other

such warnings do not excuse defense attorneys from providing the requisite

warnings. Rather, for the Court, these plea-form warnings underscored "how critical

it is for counsel to inform her noncitizen client that he faces a risk of deportation."

Id. at 1486 (emphasis added). Despite the warning about immigration consequences

on Kentucky's plea forms, the Court concluded that the advice of Padilla's lawyer

was incompetent under the Sixth Amendment. The defendant was misadvised that

he "'did not have to worry about immigration status since he had been in the country

so long.'" Id. at 1478 (internal quotation marks omitted) (quoting Commonwealth

v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008)).

The result is the same here. Just as Padilla's lawyer incorrectly dismissed the

risks of deportation, Sandoval's counsel's categorical assurances nullified the

constitutionally required advice about the deportation consequence of pleading

11

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

guilty. We conclude, therefore, that Sandoval has proved the performance prong of

Strickland.

We hold the performance of Sandoval's counsel during the plea process "fell

below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and

thus was constitutionally incompetent because his advice regarding the immigration

consequences of Sandoval's plea impermissibly downplayed the risks.3

B. Did the advice of Sandoval's attorney prejudice Sandoval?

"In satisfying the prejudice prong, a defendant challenging a guilty plea must

show that there is a reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to trial." Riley, 122 Wn.2d

3Amici curiae Washington Defender Association, Washington Association of Criminal
Defense Lawyers, Northwest Immigrant Rights Project, American Immigration Lawyers
Association, and One America invite us to hold the Sixth Amendment requires a defense attorney
to conduct a four-step process when handling a noncitizen criminal defendant's case: (1)
investigate the facts; (2) discuss the defendant's priorities; (3) research the immigration
consequences of the charged crime and the plea alternatives, and advise the defendant
accordingly; and (4) defend the case in light of the client's interests and the surrounding
circumstances. We decline amici's invitation, as their argument goes beyond the scope of this
case. Sandoval's ineffective assistance claim is focused narrowly on the advice that he received
about the deportation consequence of pleading guilty to rape in the third degree. Of course,
Padilla recognizes that "bringing deportation consequences into this [plea] process" can give
defense counsel the information necessary to "satisfy the interests" of the client, perhaps by "plea
bargain[ing] creatively with the prosecutor in order to craft a conviction and sentence that reduce
the likelihood of deportation." 130 S. Ct. at 1486. However, this case does not concern
Sandoval's counsel's negotiations with the prosecutor, his investigation of the facts, his analysis
of a complicated immigration statute (we have concluded the statute was clear), or any other
matter addressed by amici's arguments. We will consider these issues if and when they are
squarely presented.

12

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

at 780-81 (citing Hill, 474 U.S. at 59); accord In re Pers. Restraint of Elmore, 162

Wn.2d 236, 254, 172 P.3d 335 (2007); State v. Oseguera Acevedo, 137 Wn.2d 179,

198-99, 970 P.2d 299 (1999). A "reasonable probability" exists if the defendant

"convince[s] the court that a decision to reject the plea bargain would have been

rational under the circumstances." Padilla, 130 S. Ct. at 1485. This standard of

proof is "somewhat lower" than the common "preponderance of the evidence"

standard. Strickland, 466 U.S. at 694.

We conclude Sandoval meets this burden. Not only does Sandoval swear

after-the-fact that he would have rejected the plea offer had he known the

deportation consequence, but also Sandoval's counsel says that Sandoval was "very

concerned" at the time about the risk of deportation. PRP, Ex. 1, at 2. Sandoval

relied heavily on his lawyer's counsel, explaining that "I trusted my attorney to

know that he was telling the truth." Statement of Additional Grounds for Review at

1.

We accept the State's argument that the disparity in punishment makes it less

likely that Sandoval would have been rational in refusing the plea offer. According

to the State, if Sandoval were convicted of second degree rape, RCW 9A.44.050, a

class A felony, he faced a standard sentencing range of 78-102 month's

imprisonment and a maximum of a life sentence. Third degree rape, however,

13

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

subjected Sandoval to a standard sentencing range of 6-12 months.

However, Sandoval had earned permanent residency and made this country

his home. Although Sandoval would have risked a longer prison term by going to

trial, the deportation consequence of his guilty plea is also "a particularly severe

'penalty.'" Padilla, 130 S. Ct. at 1481 (quoting Fong Yue Ting v. United States, 149

U.S. 698, 740, 13 S. Ct. 1016, 37 L. Ed. 905 (1893)). For criminal defendants,

deportation no less than prison can mean "banishment or exile," Delgadillo v.

Carmichael, 332 U.S. 388, 390-91, 68 S. Ct. 10, 92 L. Ed. 17 (1947), and

"separation from their families," Padilla, 130 S. Ct. at 1484. Given the severity of

the deportation consequence, we think Sandoval would have been rational to take

his chances at trial. See Immigration & Naturalization Serv. v. St. Cyr, 533 U.S.

289, 322, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) ("There can be little doubt

that, as a general matter, alien defendants considering whether to enter into a plea

agreement are acutely aware of the immigration consequences of their

convictions."). Therefore, Sandoval has proved that his counsel's unreasonable

advice prejudiced him.

IV. CONCLUSION

We reverse the Court of Appeals, vacate Sandoval's conviction, and remand

to the trial court for proceedings consistent with this opinion.

14

State v. Sandoval; In re Pers. Restraint of Sandoval, No. 82175-5

AUTHOR:
Justice Mary E. Fairhurst

WE CONCUR:

Justice Charles W. Johnson Richard B. Sanders, Justice Pro
Tem.
Justice Gerry L. Alexander

Justice Susan Owens