SUMMARY 

January 25, 2018 

2018COA4 

No. 14CA1181, People v. Figueroa-Lemus — Criminal Procedure 

— Withdrawal of Plea of Guilty or Nolo Contendere — Deferred 

Judgment and Sentence 

A division of the court of appeals concludes that, following 

Kazadi v. People, 2012 CO 73, 291 P.3d 16, a defendant may 

challenge an unrevoked deferred judgment under Crim. P. 32(d). 

Further, the majority concludes the court has jurisdiction to review 

a district court’s denial of a motion to withdraw a guilty plea when 

that motion challenged a deferred judgment still in effect. 

In so concluding, the majority declines to follow People v. Sosa, 

2016 COA 92, 395 P.3d 1144, because under the holding of that 

case a defendant whose potentially meritorious motion to withdraw 

a plea is denied by a district court would have no viable judicial 

remedy. The dissent agrees with Sosa that the court of appeals 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
lacks jurisdiction to review the denial of a Crim. P. 32(d) motion 

challenging a deferred judgment that has not been revoked. 

Considering the merits of the motion to withdraw the guilty 

plea, the majority concludes that the defendant did not establish a 

fair and just reason for withdrawal because his counsel’s 

performance was not deficient. 

Accordingly, the court affirms the district court’s order.
COLORADO COURT OF APPEALS 2018COA4 

Court of Appeals No. 14CA1181 

Jefferson County District Court No. 12CR2874 

Honorable Christie A. Bachmeyer, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Eswin Ariel Figueroa-Lemus, 

Defendant-Appellant. 

ORDER AFFIRMED 

Division I 

Opinion by JUDGE TAUBMAN 

Richman, J., concurs 

Furman, J., dissents 

Announced January 25, 2018 

Cynthia H. Coffman, Attorney General, William G. Kozeliski, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant 
1 

¶ 1 Defendant, Eswin Ariel Figueroa-Lemus, appeals the district 

court’s order denying his Crim. P. 32(d) motion to withdraw his 

guilty plea. We first consider whether we have jurisdiction to 

consider the appeal given that the guilty plea involves a deferred 

judgment that is still in effect. We conclude that we do because the 

supreme court in Kazadi v. People, 2012 CO 73, 291 P.3d 16, 

expressly provided that a defendant may challenge such a plea 

under Crim. P. 32(d). In doing so, we decline to follow People v. 

Sosa, 2016 COA 92, 395 P.3d 1144. Next, we consider the merits 

and reject Figueroa-Lemus’s argument that counsel were 

constitutionally ineffective for failing to advise him of the 

immigration consequences of his plea. Accordingly, we affirm the 

district court’s order. 

I. Background 

¶ 2 Figueroa-Lemus pleaded guilty to possession of a schedule II 

controlled substance and driving under the influence (DUI). The 

parties stipulated to a two-year deferred judgment on the 

possession count and probation on the DUI count. The court 

accepted the deferred judgment and sentenced Figueroa-Lemus to 

two years of probation. 
2 

¶ 3 About five months later, Figueroa-Lemus filed a Crim. P. 32(d) 

motion to withdraw his guilty plea to the possession count. He 

argued that defense counsel (Ed Ferszt) and the immigration 

attorney Ferszt had him speak with (Samuel Escamilla) were 

constitutionally ineffective for failing to advise him of the clear 

immigration consequences of the plea. Specifically, he alleged that 

counsel failed to investigate, research, and advise him that the plea 

would (1) result in mandatory deportation; (2) destroy the defense of 

cancellation of removal; (3) result in mandatory lifetime 

inadmissibility to the United States; and (4) result in mandatory 

immigration detention without bond. He also alleged that, if he had 

been properly advised, it would have been rational for him to reject 

the plea offer because it gave him no benefit from an immigration 

perspective. 

¶ 4 After an evidentiary hearing, the district court denied the 

motion. 

II. Jurisdiction 

¶ 5 The People filed a motion to dismiss the appeal, arguing that 

we do not have jurisdiction to review the order denying the Crim. P. 

32(d) motion. They contend that the order is not final and 
3 

appealable because the motion challenged a deferred judgment (a 

non-final judgment), which had not been revoked when the court 

entered the order or when Figueroa-Lemus filed the notice of 

appeal. 

¶ 6 Every court has the authority to decide the question of its own 

jurisdiction. See In re Water Rights of Elk Dance Colo., LLC, 139 

P.3d 660, 670 (Colo. 2006). As conferred by statute, we have initial 

appellate jurisdiction over final judgments entered by a district 

court. See § 13-4-102(1), C.R.S. 2017; C.A.R. 1(a)(1). A final 

judgment is “one that ends the particular action in which it is 

entered, leaving nothing further for the court pronouncing it to do 

in order to completely determine the rights of the parties involved in 

the proceedings.” People v. Guatney, 214 P.3d 1049, 1051 (Colo. 

2009). In a criminal case, a final judgment is entered when a 

defendant is acquitted, has the charges dismissed, or is convicted 

and sentenced. See id. 

¶ 7 A deferred judgment is not a final judgment. See People v. 

Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, a deferred 

judgment may not be subjected to either Crim. P. 35 or direct 

review while it is still in effect. See Kazadi, ¶ 10, 291 P.3d at 19. 
4 

¶ 8 Nevertheless, a defendant may challenge a deferred judgment 

under Crim. P. 32(d). See id. at ¶ 10, 291 P.3d at 19-20. In 

Kazadi, the parties argued for the first time in the supreme court 

that the defendant should be allowed to pursue a Crim. P. 32(d) 

motion to withdraw his guilty plea. See id. at ¶ 9, 291 P.3d at 19. 

The supreme court agreed, concluding that the rule “allows a 

defendant to move for withdrawal of a guilty plea before sentence is 

imposed or imposition of sentence is suspended.” Id. at ¶ 10, 291 

P.3d at 20; cf. People v. Corrales-Castro, 2017 CO 60, ¶ 3, 395 P.3d 

778, 779 (concluding that Crim. P. 32(d) did not provide a remedy 

for a defendant who sought to withdraw his guilty plea after he had 

completed the terms of the deferred judgment, the plea had been 

withdrawn, and the case had been dismissed because Crim. P. 32(d) 

requires that a plea exist in order for it to be withdrawn). The 

supreme court then set forth the standards applicable to a Crim. P. 

32(d) motion, including the standard of appellate review. See 

Kazadi, ¶¶ 14-15, 291 P.3d at 21. 

¶ 9 Like the defendant in Kazadi, Figueroa-Lemus pleaded guilty 

to a drug felony and stipulated to a deferred judgment on that 

count. The deferred judgment remains in effect, and he has not yet 
5 

been sentenced on that count. Thus, we conclude that Crim. P. 

32(d) provided him with a mechanism to challenge the guilty plea in 

the district court. 

¶ 10 We further conclude that we may review the district court’s 

order denying the Crim. P. 32(d) motion. It is inconceivable that the 

supreme court would provide a remedy in the district court without 

allowing appellate review of the district court’s decision. See Colo. 

Const. art. II, § 6 (guaranteeing every person a right of access to 

courts of justice); Indep. Wireless Tel. Co. v. Radio Corp. of Am., 269 

U.S. 459, 472 (1926) (“Equity will not suffer a wrong without a 

remedy.”). Indeed, Kazadi expressly overruled People v. Anderson, 

703 P.2d 650 (Colo. App. 1985). See Kazadi, ¶ 20, 291 P.3d at 22-

23. In Anderson, a division of this court had concluded that a 

deferred judgment was the equivalent of a suspension of sentence 

(making the Crim. P. 32(d) motion untimely) and the order denying 

a Crim. P. 32(d) motion was not a final, appealable order under 

C.A.R. 1(a)(1). See Anderson, 703 P.2d at 652. 

¶ 11 We recognize that Figueroa-Lemus might be able to otherwise 

obtain appellate relief under C.A.R. 21(a)(1). However, relief under 

that rule is discretionary and is only available in extraordinary 
6 

circumstances. Even if Figueroa-Lemus were afforded relief under 

that rule, it would not necessarily provide relief in other similarly 

situated cases. 

¶ 12 Finally, we are cognizant that another division of this court 

has concluded that we do not have jurisdiction to review an order 

denying a Crim. P. 32(d) motion in these circumstances and has 

suggested that Kazadi did not discuss the appealability of such an 

order. See Sosa, ¶ 16, 395 P.3d at 1147. In Sosa, the division 

lamented that the defendant could not appeal the trial court’s 

denial of his plea withdrawal motion, concluding that it lacked 

jurisdiction to hear his appeal. See id. at ¶¶ 1, 18, 395 P.3d at 

1145, 1147. We decline to follow Sosa because under the holding 

in that case, a defendant whose potentially meritorious motion to 

withdraw a plea is denied by a district court would have no viable 

judicial remedy. See People v. Juarez, 2017 COA 127, ¶ 15, ___ 

P.3d ___, ___ (stating that one division of the court of appeals is not 

bound by the decision of another division in a different case). 

III. Crim. P. 32(d) Motion 

¶ 13 Figueroa-Lemus argues that his guilty plea was not made 

knowingly, voluntarily, and intelligently because Ferszt never 
7 

informed him of the clear immigration consequences of the plea. He 

contends that Ferszt failed to advise him that pleading guilty to the 

crime of possession of a schedule II controlled substance would (1) 

render him permanently inadmissible to the United States; (2) 

subject him to mandatory detention during immigration 

proceedings; (3) render him ineligible for the defense of cancellation 

of removal; and (4) subject him to mandatory deportation from the 

United States. We disagree. 

A. Standard of Review 

¶ 14 We review the district court’s denial of a Crim. P. 32(d) motion 

for an abuse of discretion. See Kazadi, ¶ 15, 291 P.3d at 21. The 

court abuses its discretion if its decision is manifestly arbitrary, 

unreasonable, or unfair, see People v. Finley, 141 P.3d 911, 913 

(Colo. App. 2006), or when its decision is based on an erroneous 

view of the law or facts. See People v. Segovia, 196 P.3d 1126, 1129 

(Colo. 2008). 

B. Crim. P. 32(d) Standards 

¶ 15 A defendant does not have an absolute right to withdraw a 

guilty plea. See Kazadi, ¶ 14, 291 P.3d at 21. However, a court 

may allow a defendant to do so if he has shown a fair and just 
8 

reason for the withdrawal — in other words, if denial of the request 

would subvert justice. See id.

¶ 16 The defendant has the burden of establishing that there is a 

fair and just reason to withdraw the guilty plea. See Crumb v. 

People, 230 P.3d 726, 730 (Colo. 2010). A defendant can do so by 

showing that the plea was made involuntarily. See id. A plea may 

be made involuntarily if a defendant does not completely 

understand the consequences of the plea and it is not the result of 

a free and rational choice. See People v. Kyler, 991 P.2d 810, 816 

(Colo. 1999). 

¶ 17 The ineffective assistance of counsel may also constitute a fair 

and just reason to withdraw the plea. See Kazadi, ¶ 21, 291 P.3d 

at 23. To prevail on a Crim. P. 32(d) motion based on the ineffective 

assistance of counsel, a defendant “must meet the standards both 

for ineffective assistance of counsel and for withdrawal of a guilty 

plea.” People v. Madera, 112 P.3d 688, 692 (Colo. 2005). 

C. Ineffective Assistance of Counsel Standards 

¶ 18 An ineffective assistance of counsel claim presents mixed 

questions of law and fact. See Dunlap v. People, 173 P.3d 1054, 

1063 (Colo. 2007). Thus, we defer to the district court’s findings of 
9 

fact when they are supported by the record but review de novo its 

legal conclusions. See id. 

¶ 19 To prove a claim of ineffective assistance of counsel during the 

plea process, “a defendant must show (1) counsel’s representation 

fell below an objective standard of reasonableness and (2) a 

reasonable probability exists that but for counsel’s errors, he or she 

‘would not have pleaded guilty and would have insisted on going to 

trial.’” People v. Kazadi, 284 P.3d 70, 73 (Colo. App. 2011) (quoting 

Hill v. Lockhart, 474 U.S. 52, 59 (1985)), aff’d, 2012 CO 73, 291 

P.3d 16. “Because a defendant must show both deficient 

performance and prejudice, a court may resolve the claim solely on 

the basis that the defendant has failed in either regard.” People v. 

Karpierz, 165 P.3d 753, 759 (Colo. App. 2006). 

¶ 20 Plea counsel’s performance falls below an objective standard of 

reasonableness — in other words, is deficient — when he or she 

fails to present the defendant with the opportunity to make a 

reasonably informed decision about whether to accept a plea offer. 

See Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009). Thus, a 

defendant is entitled to assume that his or her counsel will provide 

“sufficiently accurate advice” to enable him or her “to fully 
10 

understand and assess the serious legal proceedings in which he 

[or she] is involved.” People v. Pozo, 746 P.2d 523, 526 (Colo. 1987). 

¶ 21 Defense counsel in a criminal case has a duty to investigate 

relevant immigration law when he or she is aware that the client is 

a noncitizen. See id. at 529. When the immigration law is not

succinct and straightforward, “a criminal defense attorney need do 

no more than advise a noncitizen client that pending criminal 

charges may carry a risk of adverse immigration consequences.” 

Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Counsel must advise 

a defendant of the risk of deportation when that consequence is 

clear. See id. at 368 (concluding that the terms of the relevant 

immigration statute were “succinct, clear, and explicit” where 

defense counsel “could have easily determined that [the defendant’s] 

plea would make him eligible for deportation simply from reading 

the text of the statute”). However, Padilla does not require counsel 

to “use specific words to communicate” those consequences. 

Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013). 

D. Federal Immigration Consequences 

¶ 22 A noncitizen who is convicted of violating any law relating to a 

controlled substance (other than a single offense involving 
11 

possession of thirty grams or less of marijuana) is deportable. See

8 U.S.C. § 1227(a)(2)(B)(i) (2012). If the defendant is already in the 

United States, he or she is subject to removal on the order of the 

Attorney General. See 8 U.S.C. § 1227(a). The Attorney General is 

required to take a noncitizen with such a conviction into custody, 

and the noncitizen generally may not be released from custody. 

See 8 U.S.C. § 1226(c)(1)(B), (c)(2) (2012). 

¶ 23 Such a conviction also (1) stops the accrual of the seven-year 

period of continued residence needed for a lawful permanent 

resident to seek cancellation of removal, see 8 U.S.C. § 1229b(a)(2), 

(d)(1) (2012); and (2) makes a noncitizen inadmissible and, thus, 

ineligible to be admitted into the United States. See 8 U.S.C. 

§ 1182(a)(2)(A)(i)(II) (2012). Also, a conviction for purposes of federal 

immigration law includes a deferred judgment and sentence. See 8 

U.S.C. § 1101(a)(48)(A) (2012) (defining a conviction as a guilty plea 

where “the judge has ordered some form of punishment, penalty, or 

restraint on the alien’s liberty to be imposed”). 

E. Crim. P. 32(d) Hearing 

¶ 24 During the Crim. P. 32(d) hearing, Ferszt testified that 
12 

 as evidenced by his notes, he learned that FigueroaLemus was a permanent resident during the initial 

intake; 

 he explained to Figueroa-Lemus that if he pleaded guilty, 

he would eventually be picked up and deported and it 

was not a question of if, but when; 

 although not reflected in a written note, he talked about 

the deportation issue in every conversation he had with 

Figueroa-Lemus; 

 he understood that a guilty plea to the drug charge would 

make Figueroa-Lemus mandatorily deportable and 

mandatorily inadmissible, and that the defense of 

cancellation of removal would not apply; 

 he did not use “terms of art” but tended to use “a little 

more colorful language” by telling Figueroa-Lemus that if 

he pleaded guilty, “you’re gone,” he would lose his 

residency and eventually be deported, there was no way 

around it, and there was “no way to come and ask for 

forgiveness or a waiver or a pardon”; 
13 

 he did not talk to Figueroa-Lemus about cancellation of 

removal because, by telling him he would be deported, it 

encompassed saying that there was no opportunity for 

cancellation of removal; 

 they initialed next to the paragraph about immigration 

consequences on the Crim. P. 11 advisement to 

“document that the issue was again brought up and 

discussed in the conference room right outside of court,” 

but the paragraph did not encapsulate all they 

discussed; 

 he advised Figueroa-Lemus numerous times that the 

deferred judgment “would confer no benefit to him 

whatsoever, other than avoiding the state felony 

conviction,” and “for purposes of immigration, it was the 

same as if he was pleading guilty straight up” and the 

admission would be “permanent and binding”; and

 he pleaded with Figueroa-Lemus numerous times to talk 

to an immigration lawyer and, when he failed to do so, 

Ferszt referred Figueroa-Lemus to Escamilla. 
14 

¶ 25 Escamilla then testified that, as evidenced by his notes, he 

advised Figueroa-Lemus that if he pleaded guilty he would be 

deported. He also explained that the only drug conviction he could 

have on his record was possession of thirty grams or less of 

marijuana and told him that immigration officials would treat the 

deferred judgment as a plea of guilty, which would stay on his 

record forever for immigration purposes. 

¶ 26 In contrast, Figueroa-Lemus testified that 

 Ferszt never explained anything about the immigration 

consequences of the plea but told him that, if he 

successfully completed the deferred judgment, he “would 

have no problem with [i]mmigration and could move on to 

seek[] citizenship” — Ferszt never told him that he would 

be deported; 

 Escamilla advised him that “probably these cases could 

be deportable,” but they could possibly delay the 

proceedings so he could become a citizen before he 

pleaded guilty; 
15 

 Escamilla advised him that if he complied with the 

probation on the deferred judgment, it would be erased 

from his record; and

 he was not telling the truth when he told the court 

during the providency hearing that he understood the 

Crim. P. 11 advisement. 

¶ 27 The district court denied the Crim. P. 32(d) motion. It found 

that neither Ferszt’s nor Escamilla’s performance fell below an 

objective standard of reasonableness because (1) both told 

Figueroa-Lemus “numerous times that he would be deported if he 

plead[ed] guilty to a drug charge, and left with no defense”; and (2) 

Ferszt advised Figueroa-Lemus that he would be permanently 

inadmissible “with no pardon.” The court also concluded that 

counsel were not required to advise Figueroa-Lemus that he would 

be subject to mandatory detention without bond because it was not 

a clear consequence of the guilty plea and Figueroa-Lemus had not 

cited to (and it was not aware of) any authority to support that 

position. 

F. Application 
16 

¶ 28 Here, the immigration consequences of pleading guilty to a 

felony drug offense involving a schedule II controlled substance 

(including mandatory deportation, ineligibility for the cancellation of 

removal defense, and permanent inadmissibility) were clear because 

those consequences could be discerned from the face of the federal 

statutes. See, e.g., People v. Campos-Corona, 2013 COA 23, ¶ 13, 

343 P.3d 983, 986 (concluding that the mandatory removal 

consequence in the statute for a controlled substance offense was 

“succinct and straightforward”). Therefore, counsel was required to 

advise Figueroa-Lemus of those consequences. See Padilla, 559 

U.S. at 369. 

¶ 29 We conclude that counsel adequately advised Figueroa-Lemus. 

Because it is supported by the record, we defer to the district 

court’s finding that both Ferszt and Escamilla told Figueroa-Lemus 

on multiple occasions that a guilty plea to a drug felony would 

result in deportation. Escamilla testified that he told FigueroaLemus that he would be deported if he pleaded guilty. That 

testimony was supported by a note that Escamilla made when he 

gave Figueroa-Lemus the advisement. 
17 

¶ 30 And, Ferszt’s testimony that he told Figueroa-Lemus that if he 

pleaded guilty, “you’re gone,” he would lose his residency and 

eventually be deported, there was no way around it, and there was 

“no way to come and ask for forgiveness or a waiver or a pardon” 

sufficiently communicated that Figueroa-Lemus would be deported 

if he pleaded guilty. That language, along with Ferszt’s advisement 

that the admission would be permanent and binding for 

immigration purposes, was also sufficient to convey to FigueroaLemus that he was not eligible for the defense of cancellation of 

removal and would be inadmissible — that is, would not be able to 

return to the United States. 

¶ 31 Although Figueroa-Lemus testified that counsel did not tell 

him that he would be deported (but only that he could be deported), 

it was for the district court (as the fact finder) to determine the 

credibility of the testimony, weigh the evidence, and resolve 

conflicts, inconsistencies, and disputes in the evidence. See People 

v. Bertrand, 2014 COA 142, ¶ 8, 342 P.3d 582, 584. In the end, the 

court found that Figueroa-Lemus’s testimony was not credible and 

directly conflicted with notes from Ferszt’s file, emails between 
18 

Ferszt and the prosecutor, the Crim. P. 11 petition, and the record 

from the providency hearing. 

¶ 32 Finally, we reject Figueroa-Lemus’s argument that counsel 

should have advised him that he would be held in custody during 

the removal proceeding (mandatory detention). Figueroa-Lemus 

cites to no authority, and we have found none, that would require 

counsel to give this advice. Counsel admitted during the Crim. P. 

32(d) hearing that he did not have any case law to support the 

argument. Although he cites to an American Bar Association 

standard that states counsel should advise a client of all potential 

adverse immigration consequences and includes immigration 

detention in the list of those consequences, see Am. Bar Ass’n, 

Fourth Edition of the Criminal Justice Standards for the Defense 

Function 4-5.5(c) (Feb. 2015), https://perma.cc/PTU3-9WZQ, those 

standards are not binding precedent. See People v. Aleem, 149 P.3d 

765, 774 (Colo. 2007). In any event, we note that Figueroa-Lemus 

fails to explain how such an advisement would have affected his 

decision to accept the plea offer if he had been advised that he 

would be detained before he was deported. 
19 

¶ 33 Under these circumstances, counsel’s performance was not 

deficient. Because counsel’s performance was not deficient, we 

need not consider whether Figueroa-Lemus was prejudiced. See

Karpierz, 165 P.3d at 759. We therefore conclude that the district 

court did not abuse its discretion when it denied the Crim. P. 32(d) 

motion. See Kazadi, ¶ 15, 291 P.3d at 21. 

IV. Conclusion

¶ 34 The order is affirmed. 

JUDGE RICHMAN concurs. 

JUDGE FURMAN dissents. 

 
20 

JUDGE FURMAN, dissenting. 

¶ 35 Because I agree with the division in People v. Sosa, 2016 COA 

92, and believe that we do not have jurisdiction to review the order 

denying the Crim. P. 32(d) motion, I respectfully dissent. 

¶ 36 Every court has the authority to decide the question of its own 

jurisdiction. See Sosa, ¶ 8. As conferred by statute, we have initial 

appellate jurisdiction over final judgments entered by a district 

court. See § 13-4-102(1), C.R.S. 2017; Sosa, ¶ 8. In a criminal 

case, a final judgment is entered when a defendant is acquitted, has 

the charges dismissed, or is convicted and sentenced. See Sosa, 

¶ 9. 

¶ 37 But, a deferred judgment is not a final judgment. See People 

v. Carbajal, 198 P.3d 102, 105 (Colo. 2008). Thus, I believe that we 

lack jurisdiction to review an order denying a Crim. P. 32(d) motion 

to withdraw a guilty plea involving a deferred judgment if the 

deferred judgment has not been revoked. See Sosa, ¶ 14. 

¶ 38 Figueroa-Lemus sought to withdraw his guilty plea to the 

possession count while the deferred judgment was still in place. 

Although the prosecution filed a motion to revoke the deferred 

judgment, the district court has not yet ruled on the motion. Under 
21 

these circumstances, which are substantially similar to Sosa, I 

would conclude that we lack jurisdiction to consider this appeal. 

See id. I would therefore dismiss the appeal without prejudice for 

lack of jurisdiction. See id. at ¶ 15. 

¶ 39 While I agree with the majority that a defendant may challenge 

a deferred judgment under Crim. P. 32(d), I disagree with the 

majority’s conclusion that Kazadi v. People, 2012 CO 73, authorizes 

appellate courts to review Crim. P. 32(d) motions that are denied by 

the district court. Indeed, the Kazadi court reviewed the legal 

standards generally applicable to Crim. P. 32(d) motions, including 

that an appellate court would not overturn the denial of that motion 

absent an abuse of discretion. Id. at ¶¶ 14-15. But, as the division 

in Sosa noted, Kazadi did not address the appealability of an order 

denying a Crim. P. 32(d) motion while a defendant’s deferred 

judgment is still pending and judgment is not yet final. Sosa, ¶ 16. 

¶ 40 There are certainly circumstances where an appellate court 

would have jurisdiction to review the denial of a Crim. P. 32(d) 

motion. For example, where a defendant’s Crim. P. 32(d) motion is 

denied and judgment is subsequently entered against him, such a 

judgment would be final and thus reviewable by an appellate court. 
22 

The standards of review laid out in Kazadi would be applicable to 

that review. But, this is not such a case. Accordingly, I respectfully 

dissent.