### FILED JUNE 

### 12,2014 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III



### INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE In re the Petition for Relieffrom Personal ) Restraint of: ) No. 30150-8-III ) (consolidated with JUAN PEDRO RAMOS, ) No. 30766-2-III) ) Petitioner. ) 

# ----------------------------) ) STATE OF WASHINGTON, ) ORDERDENYING MOTION FOR ) RECONSIDERATION AND Respondent, ) GRANTING MOTION TO PUBLISH ) 

### v. ) ) JUAN PEDRO RAMOS, ) ) Appellant. ) The Courthas considered appellant's motion for reconsideration and the appellant's motionto publishthe opinion ofMay 8, 2014, and the record andfile herein, and is ofthe opinionthe motionfor reconsideration shouldbe denied andthe motionto publish shouldbe granted. Therefore, IT IS ORDERED the motion for reconsideration ofthis court'sdecision ofMay 8, 2014, is denied. IT IS FURTHER ORDEREDthe motionto publish is granted. The opinion filed by the court onMay 8, 2014 shall be modified onpage 1to designate it is a published opinion and on page 15 by deletion ofthe following language:

### No. 30150-8-111 conso!. w/30766-2-111 In re Pers. Restraintof Juan PedroRamos; State 

### v. Ramos
A majority ofthe panel has detenninedthat this opinion will notbe printed in the WashingtonAppellateReports but will be filed for public recordpursuantto RCW 2.06.040. DATED: June 12,2014 PANEL: Judges Brown, Siddoway, Fearing FORTHE COURT:

# ~!Jf!o)~ CHIEFJUDGE

### FILED MAY 8,2014 In the Office oftheClerk ofCourt W A StateCourt ofAppeals, Division III

INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re the Petition for Relieffrom Personal ) Restraint of: ) No. 30150-8-III ) (consolidated with JUAN PEDRORAMOS, ) No. 30766-2-III) ) Petitioner, ) UNPUBLISHED OPINION ) ) STATE OF WASHINGTON ) ) Respondent, ) 

### v. ) ) JUANPEDRO RAMOS, ) ) Appellant. ) FEARING, J.

- We once again address the ramifications ofPadilla v. Kentucky, 559 U.S. 356 130 S. Ct. 1473, 1761.Ed. 2d 284 (2010). In 1997, noncitizen Juan Pedro Ramospled guilty to the crime offirst degree theft. Through an appeal and a personal restraintpetition, Ramos seeks tovacate the guilty plea, claiminghis criminal defense attorney failed to inform him thatthe crime was a deportable offense. Werule that Ramos did not suffer from ineffective assistance ofcounsel, since the immigrationNo. 30150-8-III consol. w/30766-2-II1 In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos
consequences ofhis pleawere not clear and he was warned ofpossible deportation. We deny the plea vacation. FACTS Juan Pedro Ramos is not a United States citizen, although his parents, on his behalf, applied for a green card in 1992. On December 26, 1996, the State ofWashington charged Ramos with first degree theft. The State alleged Ramos and two others planned to steal 23 cars, valued at over $690,000, from a dealership. The court appointed attorney Rem Ryals to represent him. On January 21, 1997, Juan Pedro Ramos pled guilty to first degree theft. In the signed statement ofdefendant onplea ofguilty, Ramos acknowledged that his guilty plea could affect his immigration status. Paragraph 6(h) ofthe guilty plea statementprovided: IfI am not a citizen ofthe United States, a plea ofguilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial ofnaturalizationpursuantto the laws ofthe United States. Paragraph 12 ofthe guilty plea statementprovided: My lawyer has explained to me, and we have fully discussed, all ofthe aboveparagraphs. I understand them all. I have been given a copy ofthis "Statement ofDefendant on Plea ofGuilty." I have no further questions to askthejudge. Clerk's Papers (CP) at 52, 54. Ata pleahearing, the court informed Juan Pedro Ramos that he was givingup
2No. 30I50-8-III conso!. w/30766-2-III In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos
various constitutional rights and explained, "Ifyou're not a citizen ofthe United States, you'll face deportation upon the entry ofa finding ofguilty." Report ofProceedings (RP) at 3 (Jan. 21, 1997). Ramos indicatedhe understood. Juan Pedro Ramos was 18 years old when arrested for the theft. Henowtestifies that he got "offto a bad start" when younger. CP at 13. Alas, he "was young and arrogant and wasn't making very good choices about what to do with [his] life." CP at 13. A week after he pled guilty in 1997, a Franklin County Superior Court sentenced Juan Pedro Ramos to 45 days injail, and fined him $1,029.35
. After he was convicted, Juan PedroRamos' mother stoppedthe green card application process out offear that her
son would be deported. In January 2011, Juan Pedro Ramos contacted a lawyer to inquire about his immigration status. Ramos claims he then discovered that his conviction required hebe deported. To date, United States Custom and BorderProtection has not sought to deport Ramos. Juan Pedro Ramos now asserts that his attorney, RemRyals, never inquired about his immigration status. Ramos further claims he was not infonned, at the time ofhis plea, about certain deportation as a result ofentering the guilty plea. In an affidavit, Ramos testifies his lawyer never told himthat ifhepled guilty to the charges that he
3No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint of Juan Pedro Ramos; State v. Ramos
would have no chance to remain in the United States. Ifhehad beentold ofthe immigration consequences, he would not have pled guilty butwould have found a lawyer who would explain to him how he might avoid deportation by possibly pleading guilty to another crime. In a second affidavit, Ramos testifies that, during the court hearing when he pled guilty, he learned ofa chance he would be deported. He learned ofthe possibility when reviewingpapers with his counsel Rem Ryals before he appeared before thejudge. In April, Juan Ramos filed, in superior court, a motion to vacate his guilty plea. Noted veteran criminal defense attorney, James Egan, signed an affidavit swearing that attorney Ryals' practice was simply to read the immigration warnings to his clients. Rem Ryals, an experienced criminal defense attorney, is deceased. Ramos supported his assertion that his conviction subjects him to mandatory deportation with an affidavit from prominent veteran immigration attorney, Thomas Roach. Roach claims Ramos is subjectto mandatory deportation under 8 U.S.C. 

### § 1101(a)(43)(M)(i), which requires immediate deportation for an "aggravated felony" which includes "[any crime involving] fraud ordeceit in which the loss to the victim exceeds $10,000." Attorney Roach does not explain how he concludes Ramos' conduct
was fraudulent or deceitful, nor does he cite any case in support ofthis legal opinion. The superior court found the motion to vacate the pleatime barred and transferred it to this court for consideration as a personal restraint petition (PRP) under
4No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint of Juan Pedro Ramos; State 

### v. Ramos
CrR7.8(c)(2). While the PRP waspending, Juan Pedro Ramos filed a notice ofappeal from the 1997judgment and sentence, with an accompanying motion and affidavit for late filing ofdirect appeal under RAP 18.8(b). The Court ofAppeals commissioner found Ramos' appeal timely because the sentencing court did not inform him ofhis appeal rights at the time ofhis plea. We consolidated Ramos' direct appeal with his personal restraintpetition. LAWAND ANALYSIS Personal Restraint Petition-Appeal A personal restraintpetition and an appeal from the 1997 prosecution have both advantages and disadvantages to Juan Ramos. In an appeal, Ramos may assertthe benefits afforded by Padilla since his conviction is not final, but he may not bring new evidence to this court, such as the affidavits ofcounsel Egan and Roach. See Chaidez v. UnitedStates, 568 U.S. _, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Sandoval, 171 Wn.2d 163, 168,249 P.3d 1015 (2011). Although Juan Pedro Ramos may not bring to this courtnew evidence, such as the affidavits ofcounsel Egan and Roach, in his appeal, he may supply new evidence in his personal restraintpetition. Sandoval, 171 Wn.2d at 168; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Understandably, Juan Pedro Ramos wishes the best ofboth worlds and the advantages ofand no disadvantages from both proceedings. Equally understandably, the


### 5No. 30150-8-III consol. w/30766-2-III In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos
State cries foul and asks that we analyze the appeal separate from the personal restraint petition. We grant Ramos his wish. The Washington State Supreme Court has impliedly rejectedthe constrained approach the State urges this courtto adopt. Sandoval, 171 Wn.2d at 169. In Sandoval, the court explained, ifa "defendantwishes to raise issues on appeal that require evidence
or facts not in the existing trial record, the appropriate means ofdoing so is through a personal restraint petition, which may be filed concurrently with the direct appeal." Sandoval, 171 Wn.2d at 169 (quotingMcFarland, 127 Wn.2d at 335). Therefore, this court may considerthe affidavits Ramos filed and apply Padilla to Ramos' circumstances. Ineffective Assistance ofCounsel The underlying and critical issue before us is whetherJuan Pedro Ramos may vacatehis 1997 guilty plea for first degree theft, because ofhis defense attorney's purported failure to warn him ofthe immigration consequences ofhis plea. To establish ineffective assistance ofcounsel, a defendant must satisfy a two part test (1) that his or hercounsel's assistance was objectively unreasonable and (2) that as a result ofcounsel's deficient assistance, he or she suffered prejudice. Stricklandv. Washington, 466 U.S. 668,690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate the first prongdeficient performance-areviewing court "judge[s] the reasonableness ofcounsel's


### 6No. 30150-8-111 consol. w/30766-2-111 In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos challenged conduct on the facts ofthe particular case, viewed as ofthe time ofcounsel's conduct." Strickland, 466 U.S. at 690. The appellate court will presume counsel was effective. State v. Gomez Cervantes, 169 Wn. App. 428, 434,282 P.3d 98 (2012). The Sixth Amendmentright to effective assistance ofcounsel encompasses the pleaprocess. Sandoval, 171 Wn.2d at 169 (citingIn 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). Faulty advice ofcounsel may renderthe defendant's guilty plea involuntary orunintelligent. Sandoval, 171 Wn.2d at 169 (citingHill V. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); McMann, 397 U.S. at 770-71). To establish thatthe plea was involuntary orunintelligent due to counsel's inadequate advice, the defendant must show under the test in Stricklandthathis attorney's performance was objectively unreasonable and that he was prejudiced by the deficiency. Sandoval, 171 Wn.2d at 169. PriortoPadilla, deportation was considered to be a collateral consequenceunder Washington law and anything short ofan affirmative misrepresentationby counsel ofthe plea's deportation consequences could not support a plea withdrawal. Sandoval, 171 Wn.2d at 170 n.l (citingIn re Pers. Restraint ofYim, 139 Wn.2d 581, 587-89, 989 P.2d 512 (1999)). Padilla explicitly rejected the proposition that only affirmative misadvice about deportation consequences oftheplea, and not failure to give such advice, could
7No. 30150-8-III consol. w/30766-2-III In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos
constitute ineffective assistance ofcounsel. Padilla, 559 U.S. at 369-74. Padilla also emphasized that for "at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences ofa client's plea." Id. at 372. In Padilla, the Supreme Court statedthat because ofdeportation's "close connection" to the criminal process, advice about deportation consequences falls within "the ambit ofthe Sixth Amendment right to counsel." Padilla, 559 U.S. at 366. Padilla explained that because "[i]mmigration law can be complex," the precise advice a constitutionally effective counselorprovides, depends on the clarity ofthe law. Padilla, 559 U.S. at 369. Ifthe applicable immigration law "istruly clear" that an offense is deportable, defense counsel must correctly advise the defendantthat pleading guilty to thatparticular charge would lead to deportation. Padilla, 559 U.S. at 369. If"the law is not succinct and straightforward," counsel mustprovide only a general warning that "pending criminal charges may carry a risk ofadverse immigration consequences." Padilla, 559 U.S. at 369. To assess whether Rem Ryals' advice failed to comportwith the Padilla standard, the court must determine whetherthe relevant immigration law was "truly clear" that the offense was deportable. See Sandoval, 171 Wn.2d at 169-70. Padilla and Sandoval provide some guidance for when immigration consequences are clear.


### 8No. 30150-8-III consol. w/30766-2-III In re Pers. Restraint of Juan Pedro Ramos; State v. Ramos
In Padilla, the defendantpled guilty to transporting a significant amount of marijuana in his truck-a deportable offense under 8 U.S.C. 

### § 1227(a)(2)(B)(i): Any alien who at any time after admission has been convicted ofa violation of(or a conspiracy or attemptto violate) any law orregulation of
... relating to a controlled substance
... , other than a single offense involving possession for one's own use of30 grams or less ofmarijuana, is deportable. ThePadilla Court deemed this statute "succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." Padilla, 559 U.S. at 368. By simply "readingthe text ofthe statute," Padilla's lawyer could determine that a plea ofguilty would make Padilla eligible for removal. Padilla, 559 U.S. at 368. Instead, counsel was ruled incompetent for misadvising Padilla that he would not have to worry about his immigration status since he had been in the country so long. Padilla, 559 U.S. at 359, 368-69. In Sandoval, counsel advised the defendantto accept the State'splea offertothird degree rape because he would not be immediately deported and would have sufficient time to retainproper immigration counsel and ameliorate any potential immigration consequences ofhis plea. Sandoval, 171 Wn.2d at 167. The court concluded counsel performed deficiently by incorrectly dismissing the risks ofdeportation and not informing the defendantthatthird degree rape equatedto an "aggravated felony" under



### 9No. 30l50-8-III conso!. w/30766-2-III In re Pers. Restraintof Juan Pedro Ramos; State 

### v. Ramos
federal immigration law that certainly subjected him to deportation. Sandoval, 171 Wn.2d at 174. Juan Pedro Ramos' guiltyplea is unlikePadilla or Sandovalbecause the consequences ofRamos' plea are ambiguous. Under 8 U.S.C. § l227(a)(2)(A)(iii), "Any alien who is convicted ofan aggravated felony at any time after admission is deportable."} An alien convicted ofan aggravated felony is not eligible for cancellation ofremoval. 8U.S.C. §§ 1229b(a)(3) & (b)(1)(C). 8 U.S.C. § 110 1 (a)(43)(M)(i) defines "aggravated felony" to include any crime "[which] involves fraud or deceit in which the loss to the victim exceeds $10,000." CP at 19. Juan Ramos claims his crime, first degree theft, qualifies as an "aggravated felony." Ramos supports his assertion that his conviction subjects him to mandatory deportation with an affidavit from immigration attorney Thomas Roach. While we recognize Mr. Roach as a premier immigration attorney, our role is to decide on our own, rather than torely on counsel, whether Ramos' conviction is one for an "aggravated felony." Questions oflaw, except foreign law, are not the subject ofexpert testimony. Clarkv. Eltinge, 38 Wash. 376,80 P. 556 (1905); UTELCOM, Inc. v. Bridges, 2010-0654

} The federal and state statutes cited herein are all from the 1996 version in effect when Juan Pedro Ramos committed the theft in the first degree and entered his guilty plea. The currentversions ofthe statutes contain no differences pertinent to the outcome. 10No. 30150-8-III consol. w/30766-2-III In re Pers. Restraintof Juan Pedro Ramos; State 

### v. Ramos (La. App. 1 Cir. 9112111); 77 So.3d 39,54;Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009). The Immigration and Nationality Act (INA) does not define the terms "fraud" or "deceit." 8 U.S.C. § 1101. But several federal circuits offer guidance. When interpreting the meaning of8 U.S.C. 

### § 1101(a)(43)(M)(i), the court in Valansi v. Ashcroft, 278 F.3d 203,209 (3d Cir. 2002) held the terms should be construed in the commonly accepted legal sense. Fraud means a false representation ofa material fact made with knowledge ofits falsity and with intent to deceive. Valansi, 278 F.3d at 209­ 10. The deceived party must believe and act onthe misrepresentation to his disadvantage. Valansi, 278 F.3d at 209-10. Likewise, the term "deceit" is commonly perceived and has been defined as the act ofintentionally giving a false impression. Valansi, 278 F.3d 209-10; see also Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008) ("fraud" and "deceit"retainedtheircommonlyunderstood legal meanings). The Second Circuit, in construing "fraud" and "deceit" underthe INA, notedthat
an offense under 8 U.S.c. § l101(a)(43)(M)(i) ordinarily involves the taking or acquisition ofproperty with consent that has been fraudulently obtained. Bazuaye v. Mukasey, 273 F. App'x 77 (2d Cir. 2008). Bolstering its construction, the court noted that Congress provided a separate definition for an "aggravated felony" where simple theft is involved. That statute, former 8 U.S.C. 

### § I 10I(a)(43)(G)(1996), defines
IINo. 30150-8-III consol. w/30766-2-II1 In re Pers. Restraintof Juan Pedro Ramos; State V. Ramos "aggravated felony" to include "atheft offense
... for which the term ofimprisonment imposed
... is at least five years." This statute covers those theft offenses where a defendant takes property without consent, as opposed to consent fraudulently obtained. Fraud and deceit did not infectJuan Ramos' theft. Nothing in the State'sprobable
cause affidavit, in the charging information, or in Juan Pedro Ramos' allocution suggests Ramos' crime "involved fraud or deceit." Ramos agreed to drive cars from a car dealership lot with keys provided to him by a colleague who stole the master set ofkeys. The affidavitholds no allegation that the keys were stolen by misrepresentation or deceit. Ramos soughtto drive the cars from the dealership lot after business hours, without any representations. Ramos' theft also does not qualify as an aggravated felony, under other subsections of8 U.S.C. 

### § 1101(a)(43). Today, under 8 U.S.C. 

### § 1101(a)(43)(G), an aggravated felony includes "theft" but only ifdefendant is imprisoned for at least one 

# j year. Ramos received only a 45-day sentence. Whether an offense is an aggravated 

# I felony, for purposes ofimmigration and deportation, is determined by the actual term of imprisonment imposed for that offense. UnitedStates V. Graham, 169 F.3d 787, 789-90 

# I (3rd Cir. 1999). 

# i I**~** Finally, Juan Pedro Ramos contends that his offense constituted a commission ofa crime involving moral turpitude, which automatically made him ineligible to remain in 

# I**~** 12No. 30150-8-111 consol. w/30766-2-1I1 In re Pers. Restraintof Juan PedroRamos; State v. Ramos
theUnited States. To supporthis contention, Ramos cites to Jordan v. De George, which held that all offenses involving fraud are crimes ofmoral turpitude. Jordan v. De George, 341 U.S. 223, 227-32, 71 S. Ct. 703, 95 L. Ed. 886 (1951). But this argument only returns us to our conclusion thatRamos' theft did not constitute fraud or deceit. Juan Ramos might argue thatthe cases defining "fraud and deceit" under the INA
were decided afterhe pled gUilty. Buthe cites no cases prior to his plea that defined his conduct as fraudulent or deceitful. Atthe least, when Rem Ryals advised Ramos, the immigration consequences ofRamos' guilty pleawere unclear. If"the law is not succinct and straightforward," counsel mustprovide only a general warning that "pending criminal charges may carry a risk ofadverse immigration consequences." Padilla, 559 U.S. at 369. Juan Ramos' owntestimony establishes that Rem Ryals gave him accurate advice. Ramos learned, based upon consultation with Ryals before the guilty plea, that he could be deported. Padilla implies that defense counsel must communicate to the clientthe immigration consequences ofa plea, ratherthan rely upon the client reading a written form warning. Butwe do not considerRyals' reading ofthe warning from the form to be less ofa caution than ifRyals independently uttered the warning. No case requires that the warning ofimmigration consequences come directly from the thoughts ofthe attorney rather than the attorney reading the warning to the client.
13No. 301S0-8-IlI consol. w/30766-2-Ill In re Pers. Restraintof Juan Pedro Ramos; State 

### v. Ramos
JuanPedro Ramos signedpaperwork confirmingthe advice ofRem Ryals. Paragraph 6(h) ofthe guilty plea statement provided that his plea was grounds for deportation, exclusion from admission to the United States, ordenial ofnaturalization pursuantto the laws ofthe United States. In paragraph 12 ofthe guilty plea, Ramos recognizedthathis guilty plea could affecthis immigration status and he acknowledged that his lawyerhad explained suchto him. Athis pleahearing, the court informedJuan Pedro Ramos that hewas giving up various constitutional rights and explained, "Ifyou're not a citizen ofthe United States, you'll face deportation uponthe entry ofa finding of guilty." RP at 3 (Jan. 21, 1997). Ramos indicated he understood. Since Juan Ramos has not shown ineffective assistance ofcounsel, he fails to meet the first prong ofthe Stricklandtest. Therefore, we need not address whetherhe was prejudicedby any representation. CONCLUSION UnderPadilla andSandovalthe advice ofJuan PedroRamos' counsel was not deficient. We affirm his conviction and deny his personal restraintpetition.

14No. 30150-8-II1 consol. w/30766-2-II1 In re Pers. Restraintof Juan Pedro Ramos; State v. Ramos
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Fearing, 

### J.
WE CONCUR:

Brown, 

### J.



### IS