COLORADO COURT OF APPEALS 2017COA48 

Court of Appeals No. 13CA2318 

City and County of Denver District Court No. 11CR3951 

Honorable John W. Madden IV, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Hector Toby Sifuentes, 

Defendant-Appellant. 

ORDER REVERSED AND CASE 

REMANDED WITH DIRECTIONS 

Division I 

Opinion by JUDGE NAVARRO 

Taubman, J., concurs 

Graham, J., dissents 

Announced April 20, 2017 

Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy 

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

¶ 1 Defendant, Hector Toby Sifuentes, appeals the district court’s 

order denying his petition for postconviction relief under Crim. P. 

35(c). Sifuentes claims that the court erred by concluding that he 

did not show prejudice from his counsel’s erroneous advice about 

the immigration consequences of his guilty plea. To address his 

claim, we identify factors pertinent to the prejudice analysis in this 

context. Considering those factors, we agree with Sifuentes, reverse 

the order, and remand with directions. 

I. Factual and Procedural History 

A. Defendant’s Background, the Criminal Charges, and the 

Ensuing Plea Agreement 

¶ 2 Defendant was born in Mexico in 1970. He moved to the 

United States when he was two years of age and became a lawful 

permanent resident in 1988. He also has significant other ties to 

the United States, including four United States-citizen children, 

several siblings living lawfully in the country, and a disabled mother 

(also a lawful permanent resident) for whom he had been acting as 

caretaker while sharing a home in Denver. He has committed 

several traffic offenses and misdemeanors but no felonies prior to 

the charges in this case. None of his prior convictions involved 
2 

distribution of drugs. Defendant has been receiving medical 

treatment for sclerosis of the liver, kidney stones, and class one 

diabetes, which has rendered him insulin dependent. He has no 

ties — familial or otherwise — to Mexico. 

¶ 3 In 2011, the prosecution charged defendant with distributing 

and conspiring to distribute a controlled substance, class three 

felonies. He allegedly sold the substance to a confidential informant 

in a transaction that was audio- and video-recorded by police. 

Defendant later pleaded guilty to an added count of distribution of a 

schedule III controlled substance as a class four felony, in exchange 

for dismissal of the original charges. The plea agreement did not 

include sentencing concessions. 

¶ 4 After conducting a providency hearing and accepting the guilty 

plea, the trial court sentenced defendant to Community Corrections 

(Comcor) for five years. Comcor, however, rejected defendant when 

Immigration and Customs Enforcement (ICE) placed him on an 

immigration detainer following his conviction. The trial court 

therefore resentenced defendant to forty-two months in prison 

followed by three years of mandatory parole. Unbeknownst to 

defendant and defense counsel, the conviction triggered automatic 
3 

mandatory deportation (known as removal) under federal law, along 

with mandatory detention throughout the ensuing deportation 

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

B. Postconviction Proceedings 

¶ 5 Defendant filed a Crim. P. 35(c) petition for postconviction 

relief seeking to withdraw his guilty plea on the ground of ineffective 

assistance of his plea counsel. Defendant claimed that his plea 

counsel failed to advise him of a clear and unavoidable immigration 

consequence flowing directly from his guilty plea — he would be 

deported automatically. Instead, his plea counsel advised him that, 

in light of his strong ties to this country, he might be able to remain 

here even after he pleaded guilty. Defendant maintained that, if he 

had been properly advised, he would have rejected the plea 

agreement and insisted on proceeding to trial. 

¶ 6 The postconviction court held a two-day evidentiary hearing. 

Defendant’s plea counsel testified that the risk of deportation 

played a central motivating role in defendant’s plea deliberations. 

Defendant emphasized his concern over removal from the country 

the first time he spoke with plea counsel, and he repeated that 

concern every time thereafter. But the prosecution offered only a 
4 

guilty plea to distribution of a schedule III controlled substance, 

which carried a lower sentencing range than the original charges 

but did not avoid the risk of deportation altogether. 

¶ 7 Thus, before the providency hearing, plea counsel advised 

defendant that a guilty plea to the reduced charge created a risk of 

deportation but deportation would not be automatic and he would 

still be eligible for a sentence to probation or Comcor.1 At the 

resentencing hearing, plea counsel continued to inform defendant 

that, even though he had been placed on an immigration detainer 

after his conviction, he still had a chance of staying in the United 

States based on his long residential history in the country and his 

complicated health issues. As the postconviction court found, all of 

this advice was erroneous.

¶ 8 The postconviction court also heard testimony from defendant 

and his sister. His sister testified that defendant’s family resides in 

the United States and that he lacks any ties to Mexico. She also 

explained that defendant’s medical condition likely rendered a 

 

1 Based on plea counsel’s testimony, the postconviction court found 

that, during plea negotiations, counsel had advised defendant that 

immigration authorities would consider his lawful permanent 

resident status, his length of time in this country, and his family 

and health concerns when deciding whether to deport him. 
5 

longer prison sentence in the United States preferable to faster 

deportation to Mexico, where his access to medical treatment would 

be uncertain. Defendant reiterated his misunderstanding of the 

immigration consequences arising from his guilty plea (i.e., he 

thought he would still have a chance to remain in this country). He 

explained that he probably would never see his ailing mother again 

if he were deported. He also confirmed his sister’s concerns about 

his own medical treatment, and he told the court: “I’ll probably die 

out there [in Mexico], because I have no one out there, absolutely 

nobody. Everybody I have is right here in this courtroom today.” 

¶ 9 Finally, an immigration attorney — whom defendant’s plea 

counsel had consulted before his plea — testified at the 

postconviction hearing. The immigration attorney explained that 

defendant’s plea counsel had consulted her about immigration 

issues generally, but she did not offer advice to plea counsel about 

defendant’s specific situation. The immigration attorney also 

testified that defendant had retained her after his guilty plea and 

after ICE had placed him on an immigration detainer. Although she 

explained that defendant had retained her shortly before his 

resentencing hearing, she did not testify that she advised him of the 
6 

automatic deportation consequences of his conviction prior to the 

resentencing hearing. And the immigration attorney did not 

represent him at the resentencing hearing. 

¶ 10 The postconviction court denied the petition in a written order. 

The court first agreed with defendant that his plea counsel had 

failed to properly advise him of the automatic immigration 

consequences of his plea: “[I]t is clear that the plea was to an 

aggravated felony which made the Defendant automatically 

deportable. Further, the plea to an aggravated felony meant that 

factors such as the Defendant’s time living in this country, his 

health or his family situation would not protect him from 

deportation.” Therefore, the court concluded that plea counsel’s 

advice “constituted deficient representation.”

¶ 11 According to the court, however, defendant did not suffer 

prejudice because “[d]ue to audio and video recordings [of the 

offense] there was no rational basis to believe that [he] would not be 

convicted at trial.” As a result, the court held that, even if 

defendant had known of the correct immigration consequences of 

the guilty plea, it would not have been rational for him to reject the 

plea offer.
7 

¶ 12 The postconviction court further concluded that, even if 

defendant had established prejudice from his counsel’s advice, he 

was “not entitled to relief due to the circumstances of his 

providency hearing.” Specifically, he had signed a written 

Crim. P. 11 advisement indicating, among many other points, that 

his guilty plea would result in deportation. And, during the 

colloquy with the plea court at the providency hearing, defendant 

indicated generally that he understood the terms of the written 

advisement and asked no questions. 

II. Ineffective Assistance of Counsel 

¶ 13 Defendant contends that the district court erred in 

determining that his plea counsel’s deficient performance did not 

prejudice him. We agree. 

A. General Law and Standard of Review 

¶ 14 Criminal defendants have a right to counsel, see U.S. Const. 

amends. VI, XIV; see also Colo. Const. art. II, § 16, and “the right to 

counsel is the right to the effective assistance of counsel,” McMann 

v. Richardson, 397 U.S. 759, 771 n.14 (1970). This right extends to 

plea bargaining. People v. Corson, 2016 CO 33, ¶ 32 (citing Lafler v. 

Cooper, 566 U.S. __, 132 S. Ct. 1376, 1384 (2012)).
8 

¶ 15 Ineffective assistance of counsel during plea bargaining may 

constitute an adequate ground for postconviction relief under Crim. 

P. 35(c). See People v. Hunt, 2016 COA 93, ¶ 12. To prevail on 

such a claim, a defendant must establish that (1) counsel’s 

performance fell below the level of reasonably competent assistance 

demanded of attorneys in criminal cases, and (2) the deficient 

performance prejudiced the defendant. Strickland v. Washington, 

466 U.S. 668, 687 (1984); accord Dunlap v. People, 173 P.3d 1054, 

1062-63 (Colo. 2007). 

¶ 16 A conclusion on either Strickland prong presents a mixed 

question of law and fact. Carmichael v. People, 206 P.3d 800, 807 

(Colo. 2009). While we review a district court’s factual findings with 

deference, we review the application of law to those findings de 

novo. Id. at 808. That is, we independently review the ultimate 

determinations on Strickland’s performance and prejudice prongs. 

People v. Brown, 250 P.3d 679, 681 (Colo. App. 2010); see also 

People v. Newmiller, 2014 COA 84, ¶ 18. 
9 

B. Analysis 

1. Deficient Performance 

¶ 17 Although neither party challenges the postconviction court’s 

conclusion that defendant satisfied the first Strickland prong, we 

explain that the law and the record support the court’s decision. 

¶ 18 The offense to which defendant pleaded guilty qualified as an 

“aggravated felony” under federal immigration law. See 8 U.S.C. 

§ 1101(a)(43)(B) (2012) (“The term ‘aggravated felony’ [includes] 

illicit trafficking in a controlled substance.”). As such, the 

conviction not only subjected defendant to mandatory deportation 

(preceded by an immigration detainer) but also precluded the 

opportunity for him to defend against his removal through an 

immigration proceeding. See 8 U.S.C. § 1229b(a)(3) (2012). A 

lawful permanent resident may ordinarily offer a defense to 

deportation through a proceeding known as “cancellation of 

removal.” Id. This proceeding, however, is not available where the 

defendant is convicted, as here, of an “aggravated felony.” Id. 

¶ 19 Yet plea counsel advised defendant that remaining in this 

country would still be possible even after his guilty plea. Because 

counsel’s advice ran counter to succinct, clear, and explicit 
10 

requirements of immigration law, counsel’s advice was deficient. 

See Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010); see also 

United States v. Rodriguez-Vega, 797 F.3d 781, 785-88 (9th Cir. 

2015) (holding that, where deportation is virtually certain as a 

consequence of the guilty plea, advising the defendant of the mere 

potential for deportation is deficient performance); Hernandez v. 

United States, 778 F.3d 1230, 1233-34 (11th Cir. 2015) (same). We 

move, therefore, to the second Strickland prong — prejudice from 

the deficient performance. 

2. Prejudice 

¶ 20 In the context of a guilty plea, the prejudice prong requires the 

defendant to “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.” Hill v. Lockhart, 474 U.S. 52, 59 

(1985); see also Corson, ¶ 34. “Reasonable probability” means a 

probability sufficient to undermine confidence in the outcome and 

is a standard “somewhat lower” than a preponderance of the 

evidence. Strickland, 466 U.S. at 694; see also Carmichael, 206 

P.3d at 806-07. The standard presents an objective inquiry that 

asks not whether the defendant likely would have been acquitted at 
11 

trial but whether counsel’s conduct affected the outcome of the plea 

process. Corson, ¶ 35; People v. Pozo, 746 P.2d 523, 529 n.8 (Colo. 

1987). Some objective evidence must corroborate the defendant’s 

testimony that he would have made a different decision about the 

plea if he had been properly advised. Carmichael, 206 P.3d at 807. 

In the end, the defendant “must convince the court that a decision 

to reject the plea bargain would have been rational under the 

circumstances.” Padilla, 559 U.S. at 372. 

¶ 21 Various factors should inform a court’s analysis of whether a 

decision to reject the guilty plea would have been rational. First, a 

court should consider the strength of the prosecution’s case. See, 

e.g., People v. Morones-Quinonez, 2015 COA 161, ¶ 13; State v. 

Tejeiro, 345 P.3d 1074, 1083 (N.M. Ct. App. 2014). Second, the 

attractiveness of the plea deal and the risks of going to trial should 

be analyzed. See Carmichael, 206 P.3d at 806 (recognizing that the 

comparative sentencing exposure between standing trial and 

accepting a plea offer may be important to the decision whether to 

plead guilty). 

¶ 22 Third — in the case of a noncitizen defendant who wishes to 

remain in the United States — a court must take into account the 
12 

defendant’s ties to this country as judged against the defendant’s 

ties to another country. See Morones-Quinonez, ¶ 13; People v. 

Kazadi, 284 P.3d 70, 74 (Colo. App. 2011), aff’d, 2012 CO 73; see 

also Lee v. United States, 825 F.3d 311, 316 (6th Cir.), cert. granted

580 U.S. __, 137 S. Ct. 614 (2016); DeBartolo v. United States, 790 

F.3d 775, 779-80 (7th Cir. 2015); United States v. Orocio, 645 F.3d 

630, 644-45 (3d Cir. 2011), abrogated on other grounds by Chaidez 

v. United States, 568 U.S. ___, 133 S. Ct. 1103 (2013); Sasonov v. 

United States, 575 F. Supp. 2d 626, 636-38 (D. N.J. 2008); Sial v. 

State, 862 N.E.2d 702, 706 (Ind. Ct. App. 2012); Padilla v. 

Commonwealth, 381 S.W.3d 322, 329-30 (Ky. Ct. App. 2013); 

People v. Picca, 947 N.Y.S.2d 120, 129-31 (N.Y. App. Div. 2012);

State v. Sandoval, 249 P.3d 1015, 1021-22 (Wash. 2011); cf. 

Padilla, 559 U.S. at 368 (recognizing that preserving a noncitizen’s 

right to remain in this country may be more important than any 

potential jail sentence). 

a. The Postconviction Court’s Reasoning 

¶ 23 We address initially the postconviction court’s view that 

defendant was not entitled to relief “even if [he] had established 

both prongs of the Strickland test” because he was properly advised 
13 

by the written Rule 11 advisement. We disagree because, where a 

defendant meets the two-prong test set forth in Strickland, the 

defendant succeeds on a claim of ineffective assistance of counsel 

and must be allowed to withdraw his plea. See, e.g., Carmichael, 

206 P.3d at 807; Pozo, 746 P.2d at 527 n.5. 

¶ 24 The postconviction court believed that People v. DiGuglielmo, 

33 P.3d 1248 (Colo. App. 2001), dictates a different result. But the 

DiGuglielmo division recognized that Strickland governed the 

defendant’s claim that his plea counsel had provided ineffective 

assistance by advising him that he would receive a deferred 

judgment (he was later sentenced to probation instead). Id. at 

1251. The division concluded that “because both the written Crim. 

P. 11 advisement form and the trial court at the providency hearing 

specifically addressed the issue of a deferred judgment,” and the 

defendant did not ask clarifying questions, he could not succeed on 

his ineffective assistance claim. Id.

¶ 25 As we understand the case, the DiGuglielmo division decided 

that the defendant could not show prejudice from his counsel’s 

advice because the plea court had correctly advised him of the 

specific plea consequence that his counsel had allegedly failed to 
14 

mention. See also United States v. Kayode, 777 F.3d 719, 728-29 

(5th Cir. 2014) (recognizing that, while judicial admonishments 

during a plea colloquy have no bearing on the first Strickland prong, 

they may be relevant under the second prong to assess prejudice). 

In other words, the defendant could not show prejudice because he 

actually knew of the true consequences of his plea. 

¶ 26 Those are not the facts of this case. Although the written 

Rule 11 advisement mentioned deportation as a consequence of the 

guilty plea, the plea court did not. (Nor did the court recognize on 

the record that defendant was not a citizen.) Indeed, the 

DiGuglielmo division distinguished its decision from another case on 

that very basis. See 33 P.3d at 1252 (“Rael is distinguishable 

because there is no indication in that opinion whether the trial 

court had advised the defendant there about the issue that was the 

focus of his claim of misrepresentation.”). Furthermore, the 

supreme court’s subsequent Carmichael decision illustrates that “a 

proper advisement by the district court does not preclude, as a 

matter of law, a finding of prejudice based on counsel’s specific, 

erroneous advice.” Morones-Quinonez, ¶ 21 (discussing Carmichael, 

206 P.3d at 807-09). This principle is “particularly apt in the 
15 

immigration context, where a general advisement about the 

possibility of adverse immigration consequences may not be 

sufficient to dispel a specific promise or misrepresentation by 

counsel.” Id. at ¶ 22; State v. Favela, 311 P.3d 1213, 1222 (N.M. 

Ct. App. 2013) (recognizing that even a court’s unequivocal warning 

may be insufficient to cure prejudice from counsel’s deficient 

performance because that warning alone does not ensure that the 

defendant received effective assistance in evaluating such an 

advisement). And defendant here “does not contend that []he had 

questions or concerns, or that []he was confused at the providency 

hearing, based on irreconcilable advisements from [his] counsel and 

the court, which is the situation addressed in DiGuglielmo.” 

Morones-Quinonez, ¶ 24. Instead, he contends that he relied on his 

counsel’s specific, erroneous advice when he pleaded guilty. Id. 

¶ 27 Finally, unlike in DiGuglielmo, the premise of the 

postconviction court’s analysis here was that defendant did not

know of the automatic deportation consequence of his plea, 
16 

regardless of the written advisement.2 Hence, the postconviction 

court focused on what he would have done if he had known. 

¶ 28 The postconviction court also cited People v. Chavez, 7 P.3d 

1047 (Colo. App. 1999), to support its view that defendant could not 

obtain relief even if he satisfied both prongs of Strickland. Because 

Chavez does not concern an ineffective assistance of counsel claim, 

however, it sheds no light here. Consistent with our conclusion 

that Chavez and DiGuglielmo are inapposite, the People do not rely 

on those cases (or the written Rule 11 advisement) on appeal. 

 

2 The dissent takes a different view, concluding that defendant 

actually knew of the true consequences of his plea. The dissent 

cites defendant’s prior criminal acts. Because those prior acts did 

not result in immigration consequences, however, they could not 

have made him aware of the immigration consequence of the guilty 

plea here. On the contrary, those earlier experiences gave him 

reason to believe his plea counsel’s erroneous advice that his new 

conviction would not guarantee deportation either. Further, while 

defendant retained an immigration attorney after his plea and 

before his resentencing, neither that attorney nor defendant 

testified that she had advised him of the automatic deportation 

consequence of his plea before the resentencing hearing. And the 

record shows that both his plea counsel and the sentencing court 

(on whom defendant could be expected to rely) seemed to believe 

that avoiding deportation was still possible. It is not surprising, 

therefore, that he did not move to withdraw his plea before or at the 

resentencing hearing. Regardless, the relevant question is what 

defendant knew at the time of his plea, not at the resentencing 

hearing. 
17 

¶ 29 We turn therefore to the postconviction court’s discussion of 

what defendant would have done if he had known of the automatic 

deportation consequence of his guilty plea. Defendant claimed that 

he would have rejected the plea deal and gone to trial if he had been 

properly advised. The postconviction court deemed his contention 

“not to be credible.” Although framed as a credibility finding, the 

court’s conclusion mirrors the ultimate determination of whether 

defendant showed Strickland prejudice in the guilty-plea context. 

As explained, such a determination is a legal conclusion that we 

review de novo. See Carmichael, 206 P.3d at 807; Brown, 250 P.3d 

at 681; see also Chhabra v. United States, 720 F.3d 395, 406 (2d 

Cir. 2013) (“The district court’s findings as to basic, primary, or 

historical fact are subject to the clearly erroneous standard of 

review; the court’s ultimate rulings as to Strickland’s components, 

and its ultimate decision as to whether counsel’s performance 

violated the defendant’s Sixth Amendment rights, are reviewed de 

novo.”) (citations omitted). 

¶ 30 Of course, where a district court’s prejudice determination 

depends heavily on the court’s credibility findings or its resolution 

of factual disputes, we would give the court’s findings substantial 
18 

deference. Here, however, the postconviction court did not base its 

denial of defendant’s claim on conflicting testimony, defendant’s 

demeanor, a reputation for mendacity, or any other traditional 

credibility factor. On the contrary, the court credited defendant’s 

testimony as to the historical facts — e.g., what he told his plea 

counsel (he wanted to avoid deportation if possible) and what 

counsel told him (deportation was not automatic under the plea 

deal). In denying defendant’s prejudice claim nonetheless, the court 

relied entirely on its view that rejecting the plea would not have 

been rational even accepting defendant’s account of the facts. 

Because this conclusion is intertwined with the ultimate question of 

prejudice, we naturally review it de novo. 

¶ 31 The postconviction court concluded that defendant’s rejecting 

the plea agreement and going to trial would not have been a 

rational decision because acquittal at trial was very unlikely given 

the recordings of the alleged drug transaction, his failure to identify 

a viable defense, and the prosecution’s refusal to offer an 

immigrant-friendly plea deal. The court thus assumed that 

defendant would be convicted and deported in any event and, 

therefore, he faced only a decision between two to eight years in 
19 

prison (under the plea deal) and four to sixteen years in prison (if 

convicted at trial).3 

¶ 32 The postconviction court weighed some of the factors relevant 

to the prejudice inquiry. But the court’s analysis did not go far 

enough. 

¶ 33 Neither the strength of the prosecution’s case nor the 

difference in the sentencing ranges between the plea deal and a 

conviction at trial are necessarily dispositive when a defendant 

faces immigration consequences. Morones-Quinonez, ¶ 13; see 

Orocio, 645 F.3d at 643 (noting that likely acquittal at trial is not 

the “sine qua non of prejudice”). As explained, a court must 

consider all relevant factors — especially the defendant’s ties to the 

United States and the resulting severity of deportation — before 

reaching a conclusion about prejudice. See Morones-Quinonez,

¶ 13; see also Lee, 825 F.3d at 316 (“[A] claimant’s ties to the 

United States should be taken into account in evaluating, alongside 

the legal merits, whether counsel’s bad advice caused prejudice.”);

Gonzalez v. United States, 722 F.3d 118, 132 (2d Cir. 2013) (“[T]he 

 

3 The record does not reveal, however, whether defendant was 

advised of the sentences he faced if convicted of the original charges 

at trial. 
20 

court should, before reaching a conclusion as to prejudice, take into 

account all relevant factors.”). Although “the strength of the State’s 

case may be considered as part of a larger analysis of prejudice,” 

the postconviction court’s “almost exclusive reliance on the strength 

of the State’s case and the benefits of the plea was improper[.]” 

Tejeiro, 345 P.3d at 1083. 

¶ 34 We thus discern error in the postconviction court’s legal 

analysis, and we now consider defendant’s claim in light of all 

relevant factors. 

b. Balancing All Relevant Factors 

¶ 35 We first take heed of the Colorado Supreme Court’s 

recognition that “when an alien defendant enters a guilty plea based 

on erroneous representations as to deportation consequences, he or 

she will in most cases be permitted to withdraw the plea.” Pozo, 

746 P.2d at 527 n.5. We also recognize that, in compliance with 

Carmichael, defendant here presented some objective corroborating 

evidence of his prejudice claim (e.g., his plea counsel’s testimony 

confirming defendant’s concerns about deportation and her 

erroneous advice about deportation). See 206 P.3d at 807; see also 

Hernandez, 778 F.3d at 1233-34 (recognizing that plea counsel’s 
21 

statement corroborated defendant’s allegations of ineffective 

assistance). 

¶ 36 Next, we agree with the postconviction court that the 

prosecution’s case against defendant appeared to be strong. How 

strong, however, is not clear. The confidential informant who 

allegedly bought the drugs from defendant did not testify at the 

postconviction hearing. Nor did any other prosecution witness 

testify. Although the record indicates that audio and video 

recordings of the alleged sale exist, neither recording was admitted 

into evidence or described in detail through the testimony at the 

postconviction hearing.4 Hence, the admitted evidence does not 

reveal precisely how incriminating (or ambiguous) the recordings 

may be. Other documents in the record briefly describe the 

recordings, but they were not admitted into evidence at the hearing 

either. Even if we may consider such documents, they suggest that, 

 

4 Defendant’s plea counsel testified that, according to her memory, 

the recordings captured the incident and persuaded her that this 

case would be difficult to defend. She did not, however, provide any 

details of what the recordings depicted. And, although defendant 

initially agreed with the postconviction court’s statement that the 

recordings showed him committing the crime, he later clarified that 

his belief was based solely on what others had told him about the 

recordings. He had never seen them. Beyond this brief exchange, 

he did not admit his guilt. 
22 

while the audio recording contains some statements implicating 

defendant, the video recording does not actually depict a drug sale. 

¶ 37 Because we recognize, however, that the prosecution did not 

bear the burden of proof at the hearing, we accept for our analysis 

that the prosecution’s case was formidable. But we cannot 

conclude on this record that a conviction would have been “the sure 

thing that the government claims.” DeBartolo, 790 F.3d at 779.5 

Moreover, while the apparent existence of a likely trial defense may 

strengthen a defendant’s prejudice showing, establishing such a 

defense is not absolutely required in cases involving counsel’s 

failure to accurately advise the defendant of the immigration 

consequences of a guilty plea. People v. Deltoro, 31 N.E.3d 389, 394 

(Ill. App. Ct. 2015); see Zemene v. Clarke, 768 S.E.2d 684, 691 (Va. 

2015) (holding that, in advancing a claim of prejudice due to 

defense counsel’s failure to advise of the immigration consequences 

 

5 Defendant’s plea counsel admitted that she did little to investigate 

possible defenses at trial. She did not, for instance, seek to learn 

the identity of the confidential informant. Cf. People v. McKeel, 246 

P.3d 638, 642 (Colo. 2010) (recognizing that work as a confidential 

informant and prior drug use are among the “potentially unsavory 

details” about a witness that a jury may be entitled to hear). These 

circumstances further complicate the analysis of the strength of the 

prosecution’s case. 
23 

when entering a plea agreement, the defendant “need not 

demonstrate a likelihood of acquittal at trial”). In sum, the strength 

of the evidence against defendant is not as probative of rationality 

as it would be in a nonimmigration case. Morones-Quinonez, ¶ 15. 

¶ 38 Turning to the attractiveness of the plea deal, we first observe 

that the deal did not give defendant what he repeatedly said he 

wanted — a chance to stay in this country. Instead, the guilty plea 

guaranteed his automatic deportation. Thus, although the evidence 

against defendant was compelling, “[t]he threat of removal 

provide[d] [a] powerful incentive to go to trial [where] a plea would 

result in removal anyway.” Id. at ¶ 13 (quoting Orocio, 645 F.3d at 

645); see Keserovic v. State, 345 P.3d 1024, 1030 (Idaho Ct. App. 

2015) (Given the defendant’s “asserted desire to avoid deportation” 

and the virtual certainty of deportation if he pleaded guilty, “it may 

well have been in [his] better interests to take his chances at trial” 

even “accepting as true the State’s assertion that the evidence of 

[his] guilt was overwhelming.”); see also Sasonov, 575 F. Supp. 2d 

at 637; United States v. Purpura, No. 1:CR-94-171-01, 2012 WL 

716149, at *2-3 (M.D. Pa. Mar. 5, 2012) (unpublished opinion); 
24 

Padilla, 381 S.W.3d at 329; Picca, 947 N.Y.S.2d at 130-31;

Sandoval, 249 P.3d at 1022. 

¶ 39 Moreover, the downside of going to trial was not immense, 

which is to say that the upside of the plea deal was hardly 

irresistible even assuming defendant probably would have been 

convicted at trial. True, the plea deal offered a more favorable 

sentencing range, two to eight years in prison versus four to sixteen 

years if he were convicted at trial. But this difference is modest 

when compared to the large disparities analyzed in other cases. 

See, e.g., Orocio, 645 F.3d at 634 (comparing a plea deal offering 

credit for time served and two years of supervised release with a 

trial conviction carrying a minimum ten-year prison sentence); 

Sandoval, 249 P.3d at 1021-22 (considering a plea deal of 6 to 12 

months as opposed to a trial conviction carrying a minimum 

sentence of 61⁄2 to 81⁄2 years and a maximum of life in prison); cf. 

Carmichael, 206 P.3d at 807 (considering the “large disparity 

between the sentence exposure as represented to Carmichael by 

[defense counsel] and the actual exposure Carmichael faced by 

going to trial”). 
25 

¶ 40 In addition, mitigating factors (such as the absence of prior 

felonies and his serious health problems) could lead defendant to 

reasonably believe that a sentence at the higher end of the 

sentencing range and consecutive sentences were not likely if he 

went to trial. (Recall that defendant originally received a Comcor 

sentence and then a lower-range prison sentence after he pleaded 

guilty.) In fact, the postconviction court — which had also been the 

sentencing court — never mentioned consecutive sentences as a 

realistic possibility at trial, nor did the prosecutor. Because 

consecutive sentences were not mandatory, and because the 

sentencing ranges overlapped, defendant could possibly have 

received the same sentence after conviction at trial as he would 

have received after pleading guilty. 

¶ 41 In any event, preserving the right to stay in the United States 

“may be more important to the [defendant] than any potential jail 

sentence.” Padilla, 559 U.S. at 368. This is especially true where, 

as here, the defendant is a lawful permanent resident facing 

permanent banishment from a country he has lived in since he was 

a toddler. See Orocio, 645 F.3d at 645 (“[Defendant] rationally 

could have been more concerned about a near-certainty of multiple 
26 

decades of banishment from the United States than the possibility 

of a single decade in prison.”). In addition, unrebutted evidence at 

the postconviction hearing revealed that defendant’s serious health 

problems (which require daily insulin treatment) might make a 

longer prison sentence, where some medical treatment would likely 

be available, preferable to earlier deportation to a place where his 

ability to secure treatment is uncertain. Cf. DeBartolo, 790 F.3d at 

779-80 (The defendant “might even have preferred a lengthy prison 

term in the United States to a shorter prison term that would lead 

more quickly to deportation, because the lengthy prison term would 

at least keep him in the same country as his family, facilitating 

frequent visits by family members, which is important to 

prisoners.”). 

¶ 42 Finally, the unrebutted evidence established defendant’s tight 

connection to the United States. He has lived here for over forty 

years, virtually his entire life. Defendant’s family, including his 

children and ailing mother, live here too. He has no apparent ties 

to Mexico. Therefore, removal from the United States would be “the 

equivalent of banishment or exile” from his family and long-time 
27 

home. Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947); 

Sandoval, 249 P.3d at 1022. 

¶ 43 With all this in mind, we must decide not “whether a decision 

to reject a plea of guilty was the best choice, but only whether it 

[was] a rational one.” Picca, 947 N.Y.S.2d at 130 (discussing Padilla

standard). For the reasons discussed above, we conclude that 

rejecting the guilty plea offer and going to trial would have been a 

rational decision for defendant here. Id. (recognizing that the 

relevant question is whether taking “a chance, however slim, of 

being acquitted after trial would have been rational”); see People v. 

Chavez-Torres, 2016 COA 169M, ¶ 32 (“Chavez-Torres alleged in his 

postconviction motion that rejecting the plea offer would have been 

rational under the circumstances because his entire immediate 

family lived in the United States and he had no family in, or 

connections to, Mexico. These unrebutted allegations sufficiently 

assert Strickland prejudice.”). 

¶ 44 Although the People rely on People v. Campos-Corona, 2013 

COA 23, the facts of that case were quite different. There, the 

district court found that the defendant had desired only to avoid 

prison time under the plea agreement, not to avoid deportation. Id. 
28 

at ¶ 15. Because his plea “advanced that goal,” the court found 

that he would not have changed his plea even if he had known he 

would be deported. Id. In contrast, the postconviction court here 

recognized that securing a chance to stay in this country was 

important to defendant. And, to the extent a chance to receive a 

Comcor sentence was also important to him, the guilty plea did not 

advance that goal either. Contrary to his counsel’s advice, his plea 

subjected him to an immigration detainer that caused Comcor to 

reject him and resulted in his resentencing to prison. 

¶ 45 Because defendant has established a reasonable probability 

that his plea counsel’s deficient performance affected the outcome 

of the plea process, he must be allowed to withdraw his guilty plea. 

See Hill, 474 U.S. at 59; Pozo, 746 P.2d at 529 n.8. 

III. Conclusion and Remand Directions 

¶ 46 We reverse the order denying defendant relief under Crim. P. 

35(c), and we remand to the district court with directions to grant 

defendant’s petition. In conjunction with that relief, the court shall 

vacate defendant’s conviction, permit him to withdraw his guilty 

plea, and reinstate the original charges against him. 

JUDGE TAUBMAN concurs. 
29 

JUDGE GRAHAM dissents.
30 

JUDGE GRAHAM, dissenting. 

¶ 47 In my view, the majority opinion has misapplied and expanded 

the prejudice test announced in Strickland v. Washington, 466 U.S. 

668, 687 (1984), and applied in Dunlap v. People, 173 P.3d 1054, 

1062-63 (Colo. 2007). I also disagree that the record before us 

shows prejudice to defendant as a result of his counsel’s warning to 

him that his guilty plea would create the risk, but not the certainty, 

of deportation. 

¶ 48 I agree that effective counsel “must advise her client regarding 

the risk of deportation.” Padilla v. Kentucky, 559 U.S. 356, 367 

(2010). I also agree that where counsel provides “false assurance 

that his conviction would not result in his removal from this 

country,” the defendant has been given ineffective assistance. Id. at 

368. That is not what happened here. 

¶ 49 Defendant’s counsel told him that the prosecutor was 

intractable in her position that defendant would not be offered a 

plea that was “immigration safe.” She warned him that there was 

“a likelihood of deportation, although not a certainty.” The risk of 

deportation was explained to defendant. Padilla made clear that 

“[t]o satisfy [counsel’s] responsibility, we now hold that counsel 
31 

must inform her client whether his plea carries a risk of 

deportation.” Id. at 374. Measured against Padilla’s standard, it is 

not certain that counsel’s advice to defendant fell below the wide 

standard of competence demanded by Strickland. But I am willing 

to assume, as the trial court found, that defendant’s counsel gave 

him erroneous advice by telling him there was a chance he could 

avoid deportation. 

¶ 50 Where I part company with the majority is in the evaluation of 

prejudice to defendant. The record demonstrates to me that 

defendant knew the true potential consequences of his plea, not, as 

the majority supposes, because of his past criminal record, but 

because his counsel advised him that there was no assurance he 

would not be deported. And, importantly, he acknowledged in 

writing that he would be deported if he pleaded guilty to a felony. 

¶ 51 Defendant is an admitted heroin dealer who is no stranger to 

the criminal justice system. He has committed numerous prior 

criminal acts and has failed to appear in court when charged. 

Against this background, in August, 2011, a confidential informant 

advised the Denver Police Department Gang Bureau that defendant 

was attempting to sell heroin. Surveillance by the police, including 
32 

electronic video and audio equipment, observed and heard 

defendant attempting to sell and selling heroin. This evidence was 

detailed in an arrest affidavit and made available to counsel in 

discovery. 

¶ 52 In April, 2012, defendant entered a plea of guilty to a felony 

distribution charge in exchange for the prosecutor dropping a 

charge of conspiracy and a charge of distribution. Those charges 

carry potential penalties far more severe than the felony 

distribution charge to which defendant pleaded guilty. Before the 

trial court would accept the plea, as part of his Crim. P. 11 

advisement, defendant read and executed a petition to enter plea of 

guilty and plea agreement which represented to the court that 

defendant could speak, read, and understand the English language, 

or that all of the documents and proceedings had been fully 

explained to him in a language he could understand. He 

represented that he had consulted with his lawyer and that he 

recognized the potential penalty for each offense with which he was 

originally charged carried a maximum penalty of sixteen years. He 

also agreed to the factual basis for his charged crimes. And most 

importantly, he initialed paragraph 14, which represented that he 
33 

understood a plea of guilty would “result in my being deported, . . . 

excluded from admission to the United States, and my being 

refused U.S. citizenship.” (Emphasis added.) In presenting that 

petition to the district court, defendant did not seek clarification, 

notwithstanding the court’s inquiry, “Is there anything more that 

you want me to know or anything more you want me to 

consider . . . ?” Defendant was then sentenced to Community 

Corrections. 

¶ 53 Soon after that plea, Immigration and Customs Enforcement 

placed a hold on defendant which resulted in his disqualification 

from Community Corrections. Defendant very quickly retained 

immigration counsel, but did not seek to withdraw his plea. See

People v. Pozo, 746 P.2d 523, 527 (Colo. 1987) (where erroneous 

advice is given to an immigrant subject to deportation, he will likely 

be able to withdraw his plea). 

¶ 54 This factual backdrop leads me to conclude that defendant 

cannot show that, but for his counsel’s advice, he would not have 

known the true consequences of his plea. People v. DiGuglielmo, 33 

P.3d 1248 (Colo. App. 2001), is instructive. There, the defendant, 

who was sentenced to probation, argued that his plea of guilty was 
34 

not knowing and voluntary because he was led to believe that he 

would receive a deferred sentence. The division recognized that 

counsel’s promise of a sentence to be imposed might indeed 

constitute ineffective assistance of counsel. But, where the 

defendant had received a written Crim. P. 11 advisement form that 

specifically addressed the sentence, he could not claim 

misrepresentation as a ground for ineffective assistance. Id. at 

1251. “At the providency hearing, defendant had an affirmative 

obligation to request clarification from the court if his 

understanding of the plea agreement was different from the 

information contained in the written plea documents and the trial 

court’s colloquy with him.” Id.

¶ 55 The majority distinguishes DiGuglielmo by noting that the trial 

court specifically addressed the sentence in addition to the written 

Rule 11 advisement. I am aware of no case that requires a verbal 

explanation of a written Rule 11 advisement. A written advisement 

alone is a sufficient basis for requiring a defendant to seek 

clarification. This is particularly apparent where, like here, counsel 

advised defendant of the risk. If defendant was laboring under a 

belief that his length of stay in the United States would be favorably 
35 

considered by the immigration authorities, that belief was certainly 

disabused by the written document he read and signed. And too, 

like in DiGuglielmo, the defendant never alleged “that his counsel’s 

misrepresentation was deliberate.” Id. at 1252. 

¶ 56 The majority claims that People v. Rael, 681 P.2d 530 (Colo. 

App. 1984), was distinguished by DiGuglielmo in such a way as to 

add emphasis to the importance of the court’s verbal explanation 

during the Rule 11 advisement. I can find nothing in Rael to 

support that assumption. Rael relied upon the fact that counsel 

had stated that he “knew that the court would not 

aggravate/increase the maximum sentence.” 681 P.2d at 532. 

There was no need to address the prejudice prong of Strickland in 

Rael because the division in Rael ordered a hearing on the basis of 

a deliberate misrepresentation. Here there was no deliberate 

misrepresentation and any confusion caused by counsel’s 

statements of hope were unquestionably clarified by a written 

advisement to defendant that his plea would result in his 

deportation. Nor am I persuaded by the conclusion in People v. 

Chavez-Torres, 2016 COA 169M, that the defendant in that case 

was entitled to a hearing (as was the defendant here) when he 
36 

alleged sufficient excusable neglect to warrant a late filing of a 

postconviction motion by asserting that he had received erroneous 

immigration advice. 

¶ 57 This case bears no resemblance to Chavez-Torres. Defendant 

here received an accurate Rule 11 advisement that he would be 

deported. Yet he did not seek to clarify that advice. It is unrealistic 

to conclude that a noncitizen who was concerned enough about his 

immigration status to question whether his plea would result in 

deportation but did not seek to clarify a proper Rule 11 advisement 

telling him that deportation was a certainty has shown the kind of 

material prejudice sufficient and grave enough to undermine the 

confidence in his plea. None of the cases cited by the majority 

stands for the proposition that a proper written advisement 

acknowledged and signed by a defendant should be disregarded 

simply because the defendant is a noncitizen. Where a defendant 

who is fluent in English, as is the case here, tells the judge that he 

understands the matters set forth in the written Rule 11 

advisement that he has personally signed, it makes little sense for 

the sentencing judge to verbally go over each detail in the 

advisement. See People v. Laurson, 70 P.3d 564, 566 (Colo. App. 
37 

2002) (“When a defendant indicates at the providency hearing that 

he or she understood the matters contained in a written guilty plea 

advisement form, the burden of proof is on the defendant to show 

that the apparent waiver was not effective.”). 

¶ 58 There are further reasons for concluding that defendant has 

not shown prejudice. The majority reasons that it would have been 

preferable for defendant to receive a long prison sentence than to be 

deported. I disagree that any defendant, immigrant or otherwise, 

would prefer the prospect of two consecutive sixteen-year sentences 

to a four- or five-year sentence. Defendant was forty-one years of 

age at the time of his sentencing. His purported preference for 

potential consecutive sentences of up to thirty-two years at the age 

of forty-one to the sentence he received (even with deportation) is 

not credible. It is true that he had medical issues resulting from 

his abuse of drugs and alcohol. He has sclerosis of the liver. He is 

diabetic and so he must take insulin. Nothing in the record 

suggests that he cannot receive medication or treatment for these 

maladies outside the United States and that it would have been a 

preferable choice to draw a lengthy prison term just so he could 
38 

have the services of a prison doctor. He was certainly coping 

physically before he decided to sell heroin. 

¶ 59 The majority opinion seeks to weigh factors it finds relevant to 

a showing of prejudice, relying on what it deems to be the 

persuasive authority of cases in foreign jurisdictions. I am 

unwilling to rely on that authority. My conclusion is reached 

recognizing that no Colorado case gives such an expansive 

treatment of Strickland’s prejudice prong. 

¶ 60 Defendant has admitted his guilt. The documentary evidence 

which forms the basis for his arrest warrant shows that a finding of 

guilt on the original charges is all but assured. His physical 

conditions are treatable in Mexico and elsewhere; he does not deny 

otherwise. He is not terminally ill. Admittedly, his ties to this 

country are strong and he has family members here. One would 

expect nothing else in the case of a long-term resident. However, I 

am unaware of any Colorado case that requires an exception to 

deportation on the basis of close ties to Colorado. He is not a 

United States citizen and, based upon his felony charge, it is 

unlikely that he will ever become one, even after remand. 
39 

¶ 61 Consequently, I am left to conclude that the district court was 

correct in deciding, after an evidentiary hearing, that defendant 

failed to satisfy the prejudice prong of Strickland. I would affirm.