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### IN THE SUPREME COURT OF THE STATE OFWASHINGTON
In the Matter ofthe Personal Restraint of YUNG-CHENGTSAI, Petitioner. ) ) ) ) ) ) ) 

## _______________________) In the Matter ofthe Personal Restraint of MUHAMMADOU JAGANA, Petitioner. ) ) ) ) ) ) )



# _______________________) No. 88770-5 (consolidated with No. 89992-4)

ENBANC

Filed: 

### MAY 07 2015

YU, J.-As applied to Washington, the holding inPadilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) is an affirmation ofan old n1le ofstate constitutional law- the dutyto provide effective assistance ofcounsel includes the dutyto reasonablyresearch and applyrelevant statutes. However, language in certainWashington appellate cases made it appearthat this well-In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 establishedrule did not applyto RCW 1 0.40.200. In superseding those cases, 

### Padilla significantly changed state law. Muhammadou Jaganaraises a claimthat would have beenrejected before 

### Padilla based on those superseded appellate cases. We therefore reverse the Court ofAppeals' order dismissing Jagana's personal restraint petition (PRP) and remand to the trial court for an evidentiaryhearing. However, Yung-Cheng Tsai's claim
was available before

### Padilla, and Tsai did in fact raise his claim with the assistance ofan attorney in 2008. That motion was deniedbased on an issue oflaw not affectedby

### Padilla, and Tsai did not appeal. We therefore affirm the Court of Appeals' order dismissing Tsai's PRP. FACTUALAND PROCEDURAL HISTORY A. Yung-Cheng Tsai OnJuly 27, 2006, Tsai pleaded guiltyto one count ofunlawful possession of
a controlled substance with intent to deliver (marijuana). On August 29, 2006, the trial court sentencedhimto 11 months injail and 12 months ofcommunity custody. Tsai did not appeal. On or about October 30, 2007, Tsai received a notice to appear from the United States Immigration and Naturalization Services, which informed him that he was subject to removal (also known as deportation) based on his conviction.

2In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 On July 21, 2008, Tsai filed a motion to withdraw his guiltypleaunder CrR 7.8, alleging that his attorneywrongfully advised himhe would not be deportable ifhe accepted the State'splea offer and that this erroneous advice was prejudicial. Thetrial court denied Tsai's motion as time barred. The motionwas filed over one year after Tsai pleaded guilty, and the trial court held that equitable tolling did not apply. The trial court did not transfer Tsai's motion to the Court ofAppeals for consideration as a PRP. Tsai did not appeal or otherwise pursuehis 2008 motion. OnMay 18, 2011, Tsai again movedto withdraw his guiltypleaunder CrR 7.8 based on his attorney's alleged erroneous advice. Tsai argued his motion was exempt from the one-year time barin RCW 10.73.090(1) under RCW 10.73.100(6) becausePadilla andState v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011) (applyingPadilla) effected a significant, material change in the law that applies retroactively. The trial court initially denied Tsai's 2011 motion, holding it was time barred. On Tsai's motion, the trial courtvacated its holding and transferred the motion to the Court ofAppeals to be considered as a PRP. The Court ofAppeals denied Tsai's PRP as time barred, holding thatPadilla and Sandoval do not apply retroactively. We granted Tsai's motion for discretionaryreview and consolidated his case with Jagana's. In re Pers. Restraint ofYung-Cheng Tsai, 180 Wn.2d 1014,327P.3d 55 (2014).
3In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 B. Muhammadou Jagana On June 7, 2006, Jaganapleaded guiltyto one count ofpossession ofa controlled substance (cocaine). He was sentencedto three months ofelectronic home monitoring. Jagana did not appeal. OnNovember4, 2010, Jaganamoved to withdraw his guiltypleaunder CrR 7.8. Relying onPadilla, Jagana assertedthat his attorney failed to investigate Jagana's immigration status, did not advisehimthat his guiltyplea couldhave immigration consequences, and did not advise himto speakwith an immigration attorney. The trial court transferred Jagana's motion to the Court ofAppeals to be considered as a PRP. The Court ofAppeals initiallyfiled a published opinion holding Jagana's PRP was timelyunder RCW 10.73.100(6) and remanding the case to the trial court for areference hearing. In re Pers. Restraint of Jagana, 170 Wn. App. 32, 282 P.3d 1153 (2012). The Court ofAppeals reasoned thatPadilla was a significant, material change inthe law and thatPadilla should applyretroactivelybecause it
was not a new rule; it merely applied the standard analysis for ineffective assistance ofcounsel to a new set offacts. The State sought discretionaryreview, and we remanded to the Court of Appeals for reconsideration in light ofChaidez v. UnitedStates, 568 U.S._, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013), whichheldPadilla did announce a
4In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4



### new rule that does not apply retroactivelyto matters on collateral review. In re Pers. Restraint of Jagana, 

### 177 Wn.2d 1027, 309 P.3d 1186 (2013). On reconsideration, the Court ofAppeals withdrew its opinion and dismissed Jagana's PRP as time barred. We granted Jagana's motion for discretionary review and consolidated his case with Tsai's. In re Pers. Restraintof Jagana, 

### 180 Wn.2d 1014,327 P.3d 55 (2014). ISSUES A. Are the PRPs exempt from the one-yeartime bar in RCW 10.73.090(1) under RCW 10.73.100(6)? B. Ifthe PRPs are not time barred, are the petitioners entitled to reliefor evidentiary hearings on the merits oftheir claims? ANALYSIS A. As applied to Washington, Padilla 

### did not announce a newrule, but it did effect a significant change in the law under RCW 10.73.100(6) 1. The unreasonable failure to give any advice about the immigration consequences ofa guilty plea was already deficient performance in Washington underthe ordinary Strickland

### test A criminal defendant's right to the assistance ofcounsel derives from the Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington Constitution. Under these provisions, a criminal defense attorney has the constitutional duty to provide assistance that is effective. Stricklandv.

5In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of.Jagana, No. 89992-4 Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Where
a defense attorney makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," the attorney's performance is constitutionally deficient. !d. at 687. Where that deficiency deprives the defendant offair proceedings, the defendant has sufferedprejudice because there is "abreakdown in the adversary process thatrenders the result unreliable." Id. Unreliable results caused by defense counsel's prejudicially deficientperformance are constitutionally intolerable. When determining whether a defense attorney provided effective assistance, the underlying test is always one of"reasonableness under prevailingprofessional norms." Id. at 688. While simple to state in theory, this test canbe complicatedto apply in practice. The court must engage in a fact-specific inquiry into the reasonableness ofan attorney's actions, measured against the applicable prevailing professional norms in place at the time. Id. at 690. Itis thus impossible to "exhaustively define the obligations ofcounsel []or form a checklist forjudicial evaluation ofattorney performance." Id. at 688. Nevertheless, effective representation "entails certain basic duties," such as
a duty ofloyalty, a duty to avoid conflicts ofinterest[,]
... the overarching duty to advocate the defendant's cause andthe more particular duties to consult with the defendant on important decisions and to keep the defendant informed ofimportant developments in the course ofthe prosecution. Counsel also has a duty to bring to bear
6In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4

Id. such skill and knowledge as will render the trial a reliable adversarial testing process.

Itis againstthis backdrop that we consider whetherPadilla applies retroactively under RCW 10.73.100(6) and Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Under Teague, new constitutional rules of criminal procedure usually apply only to matters on direct review, but oldrules apply to matters on both direct and collateral review. Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). Because it is impossible to exhaustively define a defense attorney's obligations underStrickland, cases that merely apply the ordinary test for ineffective assistance ofcounsel to new facts do not announce new rules for Teague purposes. Chaidez, 133 S. Ct. at 1107 (citing Strickland, 466 U.S. 668). As applied to Washington law, Padilla isjust such a
case. In Chaidez, the Supreme Court held thatPadilla did not merely apply the ordinary test for ineffective assistance ofcounsel; it first considered the threshold question ofwhether defense counsel has any constitutional duty to advise noncitizen defendants about the immigration consequences ofpleading guilty. Id. at 1108. The notion that defense counsel has no such duty arose from a distinction many courts have drawn between direct and collateral consequences. Padilla, 559

7In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraintof Jagana, No. 89992-4 U.S. at 365 & n.9. Immigration consequences were usually considered collateral and thus outside the scope ofdefense counsel's constitutional duty to advise. Id. at 364-65. Padilla did not fully reject the direct-versus-collateral distinction butheld it was not appropriate as applied to immigration consequences. Id. at 366. This court first explicitly adopted the distinction between direct and collateral consequences in a 1980 case holding thathabitual criminal proceedings
were collateral consequences. State v. Barton, 93 Wn.2d 301,305, 609 P.2d 1353 (1980). Withinthree years ofBarton, our legislature did whatPadilla ultimately did in 2010-itrejected the**direct-versus~collateral** distinction as applied to immigration consequences, declaring that a noncitizen defendant mustbe warned about immigration consequences before pleading guilty. 1 

### LAws OF 1983, ch. 199 § 1(1), codifiedatRCW 10.40.200(1). To give effectto this statute, the standard plea form in CrR4.2 was promptly amended to include a statement warning noncitizen defendants ofpossible immigration consequences. That warning statement is not, itself, the required advice; it merely creates a rebuttable

1Contrary to the dissent's suggestion, we are not holding that the legislature has the authority to define the scope ofconstitutionally effective counsel. Rather, we are giving effect to our own precedent, whichholds that a defense attorney has a basic duty to know and apply relevant statutes and professional norms, and the unreasonable failure to fulfill that duty is constitutionally deficient. E.g., State v. Kyllo, 166 Wn.2d 856, 862,215 P.3d 177 (2009); see also Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (deficient performance where counsel failed to file a timely suppression motionbecause he did not engage in any pretrial discovery and therefore was not aware ofthe evidenceto be presented). 8In re Pers. Restraint o.fTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 presumption the defendant has beenproperly advised. RCW 1 0.40.200(2); Sandoval, 171 Wn.2d at 173. RCW 10.40.200's plain language gives noncitizen defendants the unequivocal right to advice regarding immigration consequences and necessarily imposes a correlative duty on defense counsel to ensure that advice is provided. State v. Butler, 17 Wn. App. 666, 675, 564 P.2d 828 (1977) ("Beyond the defendant's power oflmowledge and intelligence, the duty to protectthe defendant lies first and foremost with his attorney."). While defense counsel's duty to advise regarding immigration consequences is imposed by statute, "[r]easonable conduct for an attorney includes carrying outthe duty to research the relevant law." State
v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (citing Strickland, 466 U.S. at 690-91). Inmany cases2 defense counsel's failure to fulfill his orher statutory duty may be due to an unreasonable failure to research or apply RCW 10.40.200, and there is no conceivable tactical or strategic purpose for such a failure. Where an attorney unreasonably fails to research or apply relevant statutes without any tactical purpose, that attorney's performance is constitutionally deficient. See, e.g., id. at 865-69 (deficient performance where reasonably

2There may be situations where defense counsel's failure to provide the advice required by RCW 10.40.200 is objectively reasonable and thus not deficient. See People v. Pozo, 746 P.2d 523, 529 (Colo. 1987). And ofcourse, even ifdeficient, counsel's performance is not constitutionally ineffective unless it is also prejudicial. Kyllo, 166 Wn.2d at 862. 9In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 adequate research would have shown that a former patternjury instruction misstated the law on self-defense); 

### State v. Aha, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999) (deficientperformance where reasonably adequate research would have prevented the possibility ofconvictionbased on acts predating the relevant statute's effective date). 

### CfState v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, 805 (holding that the failure to advise a noncitizen defendant about immigration consequences as required by N.M. CODER. 5-303(E)(5) couldbe ineffective assistance); RPC 1.1 cmt. 2 ("Perhaps the most fundamental legal skill consists ofdetermining whatkind oflegal problems a situation may involve, a skill that necessarily transcends any particular specializedknowledge."). Indeed, "[a]n attorney's ignorance ofa point oflaw that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example ofunreasonable performance under 

### Strickland." Hinton v. Alabama, 571 U.S._, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014). The unreasonable failure to research and apply RCW 10.40.200 is as constitutionally deficient as the unreasonable failure to research and apply any relevant statute. This resolves 

### Padilla's threshold question as applied to Washington law. 

### Padilla thus becomes a "garden-variety application[ ] ofthe test in 

### Strickland' that simply refines the scope ofdefense counsel's constitutional duties as appliedto a specific fact pattern. 

### Chaidez, 133 S. Ct. at 1107. Because

### Padilla did not 10In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4

announce a new rule under Washington law, it applies retroactively to matters on collateral review under Teague. 2. Padilla effected a significant change in Washington law Whether a changed legal standard applies retroactively is a distinct inquiry from whetherthere has been a significant change in the law. An oldrule whose
new application significantly changes the law is unusual, but not impossible, as this case demonstrates. Padilla's application ofthe old Stricklandtest significantly changed state lawby superseding Washington appellate cases that apparently foreclosed the possibility that defense counsel's unreasonable and prejudicial failure to fulfill his orher duties under RCW 10.40.200 could ever be constitutionally ineffective. (a) A "new" rule under Teague is not always the same as a "significant change" in the law under RCW 10.73.100(6) There is unquestionably a substantial overlap between "new" Teague rules and "significant changes" in state law, butthey are two separate inquiries: "RCW 1

0.73.100(6) sets forth three conditions that mustbe met before a petitioner can
overcome the one-year time bar: (1) a [significant] change in the law (2) that is material and (3) that applies retroactively." In re Pers. Restraintof Gentry, 179 Wn.2d 614, 625,316 P.3d 1020 (2014). While we have used the Teague analysis and its definition ofa "new" rule to determine whether a constitutional rule applies

11In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 retroactively, id. at 626, we have never imported Teague's definition ofa newrule into our analysis ofwhether there has been a significant change in the law. In fact, we have always defined the two phrases differently. A significant change in state law occurs "where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative ofa material issue." In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000). By comparison, new rules for Teague purposes "are those that 'break[] new ground or impose[] a new obligation onthe States or the Federal government [or] ifthe result was not dictatedby precedent existing at the time the defendant's conviction became final."' State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627 (2005) (alterations in original) (quoting Teague, 489 U.S. at 301). "Ifbefore the opinion is announced, reasonablejurists could disagree onthe rule oflaw, the opinion is new." !d. (citingBeardv. Banks, 542 U.S. 406, 411, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004)). Using different definitions for a "significant change" in state law and a "new" rule under Teague is not only fully supportedby the plain language ofRCW 10.73.100(6) and our ownprecedent, it also makes good sense in light ofthe differentpurposes these phrases serve in our analysis. The "significant change" language is intended to reduce procedural barriers to collateral reliefin the interests offairness andjustice. Greening, 141 Wn.2d at 697 ("While litigants 12In re Pers. Restraint o.fTsai, No. 88770-5 In re Pers. Restraint o.f.Jagana, No. 89992-4 have a duty to raise available arguments in a timely fashion and may laterbe procedurally penalized for failing to do so ... they should not be faulted for having omitted arguments that were essentially unavailable at the time."). Meanwhile, Teague's broad definition of"new" rules thatusually do not apply retroactively is intendedto strengthen procedural barriers to collateral reliefin the interests of finality and comity. Danforth v. Minnesota, 552 U.S. 264,279-81, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). A "significant change" in state law and a "new" constitutional rule of criminal procedure are different phrases with different meanings that serve differentpurposes. We will not conflate them. Gentry, 179 Wn.2d at 625; cf Commonwealth v. Sylvain, 466 Mass. 422, 433-34, 995 N.E.2d 760 (2013) (retaining the general Teague framework but declining to adopt the expanded definition ofa "new" rule that was articulated after Teague). (b) Padilla significantly changed Washington law Itis true that in most cases simply applying the ordinary Stricklandtest to
new facts will announce neither newrules nor significant changes in the law. See In rePers. Restraint ofTuray, 150 Wn.2d 71, 83, 74 P.3d 1194 (2003) (Where an opinion "simply applies settled law to new facts, it does not constitute a significant change in the law."). However, Washington appellate cases issued beforePadilla apparently foreclosed any possibilitythat the unreasonable, prejudicial failure to
13In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 provide the advice required by RCW 10.40.200 could ever be ineffective assistance ofcounsel. Padilla superseded these decisions, significantly changing state law. The first appellate case to explicitly consider whether RCW 10.40.200 has any implications on the constitutional effectiveness ofdefense counsel is State v. Holley, 75 Wn. App. 191, 876 P.2d 973 (1994). Inthat case, the Court ofAppeals held that a reference hearing was required to determine whether the defendant's guilty pleawas entered in violation ofRCW 10.40.200. 

### Id. at 200-01. Even though it decided the case on statutory grounds, Holley chose to address the constitutional implications ofRCW 10.40.200 and summarily stated in dictum that there were none. ld. at 196-98. To supportthis proposition, Holley relied onState

v. Malik, 37 Wn. App. 414, 680 P.2d 770 (1984). Malikwas based on facts occurring before RCW 10.40.200's effective date and so did not considerthe impact ofthat statute onthe duties ofdefense counsel. State v. Littlefair, 112 Wn. App. 749, 767, 51 P.3d 116 (2002). As discussed above, with the enactment of RCW 1 0.40.200, the unreasonable failure to research and apply that statute became constitutionally deficientperformance. Holley's dictum was thus erroneous. The only decision ofthis court thattouches on the issue presented here is In

re PersonalRestraintofYim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). However, Yim dealt with a claim thatthe defendant received incorrect advice, rather than no advice, regarding immigration consequences. 

### !d. Padilla is not 14In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 limited to incorrect advice; it explicitly holds thatproviding no advice regarding immigration consequences is also deficient. Padilla, 559 U.S. at 370. Further, Yim discussed only the voluntariness ofthe defendant's pleawithoutreference to the standard for determining ineffective assistance ofcounsel, and Yim did not consider RCW 10.40.200. Yim, 139 Wn.2d at 588-90 (citing State v. Ward, 123 Wn.2d 488, 512-13, 869 P.2d 1062 (1994); Malik, 37 Wn. App. at 416). Yim's analysis does not address the issues presented where a noncitizen asserts his or her attorney unreasonably failed to provide any advice aboutthe immigration consequences ofpleading guilty as required by RCW 10.40.200. Nevertheless, Washington appellate courts have routinely rejected the possibility that such a failure could ever be ineffective assistance ofcounsel. Each ofthose decisions relies on cases analyzing guilty pleas enteredbefore the effective date ofRCW 10.40.200,Holley's erroneous dictum, or Yim's distinguishable analysis. See State v. Jamison, 105 Wn. App. 572, 591-92, 595, 20 P.3d 1010 (2001) (citing Yim, 139 Wn.2d at 588; Holley, 75 Wn. App. at 198); State v. Martinez-Lazo, 100 Wn. App. 869, 876-77,999 P.2d 1275 (2000) (citing Yim, 139 Wn.2d at 588; Holley, 75 Wn. App. at 197; In re Pers. Restraintof Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988)), abrogation recognizedby Chaidez, 133 S. Ct. at 1109 n.8; Holley, 75 Wn. App. at 197-98 (citingMalik, 37 Wn. App. at 416-17); Peters, 50 Wn. App. at 705 (noting the guilty pleawas 15In re Pers. RestraintofTsai, No. 88770-5 In re Pers. Restraint o.f.Jagana, No. 89992-4 

### entered before RCW 10.40.200's effective date); seegenerallyLittlefair, 

### 112 Wn. App. at 766-69 (discussing the history ofRCW 10.40.200,Malik, 

### and its progeny). Padilla 

### superseded the theory underlyingthese decisions--that "anything short of
an affirmative misrepresentationby counsel ofthe plea's deportation consequences could not supportthe plea's withdrawal." Sandoval, 

### 171 Wn.2d at 170 n.1. This
was a significant change in Washington law. B. Jagana is entitled to an evidentiary hearing onthe merits A significant, material, retroactive change in the law exempts a PRP from RCW 10.73.090(1)'s one-yeartime bar for collateral attacks. RCW 10.73.100(6). However, in light ofthe arguments currently presented for our review, only Jagana is entitled to an evidentiary hearing on the merits ofhis PRP. Jagana alleges that his trial attorney unreasonably failed to ascertain Jagana's immigration status and did not provide him with any guidance as to any possible immigration consequences ofhis guilty plea, and further alleges thatthese failures rendered Jagana's pleainvoluntary. These allegations, iftrue, would establish that Jagana did not receive effective assistance ofcounsel in deciding whether to plead guilty. As discussed above, Washington courts would have rejected Jagana's claim beforePadilla 

### was issued. Jagana's failure to raise this apparently unavailable argument cannotrender his PRP procedurally barred. Greening, 

### 141 Wn.2d at 697. He is entitled to an evidentiary hearing.
16In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 However, Washington courts have long recognized that where a defendant relies onhis or her attorney's incorrect advice aboutthe immigration consequences ofpleading guilty, the defendant's pleamay be rendered involuntary and withdrawn. Yim, 139 Wn.2d at 588. With the assistance ofan attorney, Tsai filed
a motion to withdraw his guilty plea in 2008, alleging his guilty plea was involuntary because his attorney incorrectly advised him aboutthe immigration consequences. The trial court denied this motion, not because it was legally unav·ailable onthe merits, but because the trial court decided it was untimely and not subject to equitable tolling. Perhaps the trial court erred in 2008, but Tsai did not appeal that decision and neitherPadilla nor Sandoval addresses equitable tolling. Based on the arguments currently presented for ourreview, Tsai has not shownhe is entitled to an evidentiary hearing on the merits ofhis PRP. 

### See RAP 16.4(d); 

### Greening, 141 Wn.2d at 697. CONCLUSION This case is not a faceless one thatbears no consequences. Numerous noncitizen defendants have benefited from the clear statutory requirementthat defense counsel has a duty to advise them aboutthe immigration consequences of pleading guilty. However, numerous meritorious claims that defense counsel unreasonably failed to fulfill this duty have been rejected based on the mistaken beliefthat RCW 10.40.200 has no constitutional implications. Nowthatthis
17In re Pers. Restraint ofTsai, No. 88770-5 In re .Pers. Restraint of Jagana, No. 89992-4 mistaken beliefhas finally been corrected, holding such meritorious claims are procedurally barred would deprive many others ofthe opportunity to have the merits oftheir constitutional claims reviewed. In light ofthe legislature's longstanding commitmentto ensuring noncitizen defendants understand the immigration consequences ofconviction and this court's long-standing commitmentto ensuring criminal defendants receive effective assistance of counsel, such an outcome would be unjust and fall short ofthe values underpinning
our state statutory framework.

18In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4



### WE CONCUR:

19In re Pers. Restraint ofTsai In re Pers. Restraint of Jagana

No. 88770-5 (consolidated withNo. 89992-4) OWENS, J. (dissenting)

- In 1992, we adopted the United States Supreme Court's method for determining when a constitutional rule that arises out ofnew case law may apply retroactively. In re Pers. Restraintof St. Pierre, 118 Wn.2d 321, 326- 27, 823 P.2d 492 (1992). The Court's method comes from Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and under that method only settled constitutional rules apply retroactively. New constitutional rules ofcriminal procedure do not apply retroactively. Id. Inthis case, both Tsai and Jagana ask that
we apply a constitutional rule that arose out ofnew case law-Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)-retroactivelyto them. InPadilla, the United States Supreme Courtheldthat ifa defendant's attorney fails to advise the defendant ofthe immigration consequences ofpleading guilty, it violates the defendant's right to the effective assistance ofcounsel under the Sixth Amendment to the United States Constitution. Id. at 374. Thus, the question under
our retroactivity framework is whether that holding constituted a new constitutionalIn re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting rule in Washington. To determine that, we must assess whether our courts interpreted the SixthAmendmentto require attorneys to advise their clients ofthe immigration consequences ofpleading guilty priorto Padilla. As I explain below, our case law shows thatpriorto Padilla, Washington courts had heldthat ifan attorney failed to advise his orher client ofthe immigration consequences ofpleading guilty, it was nota violation ofthe defendant's Sixth Amendment right to the effective assistance ofcounsel. Although some may disagree with those holdings, that was the law in Washingtonpriorto Padilla. Thus, Padilla represented a new constitutional rule ofcriminal procedure in Washington. The United States Supreme Court came to this same conclusion when it resolved this exact question in the federal context. See Chaidez v. UnitedStates,_U.S._, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149 (2013). BecausePadilla is a new constitutional rule of criminal procedure, it cannotbe applied retroactively to the petitioners. The majority avoids this result by distorting the historical scope ofWashington constitutional law regarding ineffective assistance ofcounsel. The majority relies on
a Washington statute-RCW 10.40.200-tohold thatPadillarepresented a settled constitutional rule in Washington, and thatPad illa maytherefore be applied retroactively. That is mystifying, as Teague requires us to determine whether a constitutional rule ofcriminal procedure is retroactive, not a statutory rule. RCW 10.40.200 tells us nothing abouthowthe Sixth Amendment was interpreted in

2In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting Washingtonprior to Padilla. Althoughthe majority may believe that Washington courts shouldhave interpreted the SixthAmendment to require attorneys to advise their clients ofthe immigration consequences ofpleading guilty because ofRCW 10.40.200, that was notthe reality ofWashington constitutional lawprior to Padilla. Itis understandable why the majority wants to avoid this difficultresult, but it is compelledby ourprecedent adopting the Teague analysis. Unless and until we overturn our adoption ofthe Teague analysis, we are boundby it. Padillarepresented
a new constitutional rule ofcriminal procedure in Washington. Thus, it cannotbe applied retroactively to the petitioners under Teague. I respectfully dissent. 1. Under Teague, New ConstitutionalRules of CriminalProcedure DoNot ApplyRetroactively Under Teague, "[u]nless they fall within an exception to the general rule, new constitutional rules ofcriminal procedure will not be applicable to those cases which have become final before the newrules are announced." 489 U.S. at 310. "Only whenwe apply a settled rule may a person avail herselfofthe decision on collateral review." Chaidez, 133 S. Ct. at 1107. A rule is new '"whenit breaks new ground or imposes a new obligation' on the government." Id. (quoting Teague, 489 U.S. at 301). Put differently, "acase announces a newrule ifthe result was not dictatedby precedent existing at the time the defendant's convictionbecame final." Teague, 489 U.S. at 301.

3In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting 2. As the UnitedStates Supreme CourtHasHeld, Padilla Was aNew Rule in Jurisdictions (Like Washington) ThatPreviouslyHeld ThatAdvice about Immigration Consequences Was CategoricallyRemoved from the Scope of the SixthAmendment Priorto Padilla, both federal courts and our courts had concludedthat an attorney's advice about the immigration consequences ofpleading guilty was categorically removed from the scope ofthe Sixth Amendment. As the United States Supreme Court said, state and lower federal courts had "almostunanimously concluded thatthe SixthAmendment [did] notrequire attorneys to informtheir clients ofa conviction's collateral consequences, including deportation." Chaidez, 133 S. Ct. at 1109. Washington was one ofthose states. See State v. Martinez-Lazo, 100 Wn. App. 869, 876-78, 999 P.2d 1275 (2000) (holding thatMartinez-Lazo did not receive ineffective assistance ofcounsel because "adefendant need notbe advised ofthe possibility ofdeportation," which is merely a collateral consequence). The United States Supreme Courtrecently analyzed whetherPadilla created a "'newrule"' under Teague in Chaidez. 133 S. Ct. at 1107. Because our courts' interpretation ofthe SixthAmendmentwas the same as the federal courts, our Teague analysis should mirror the United States Supreme Court's Teague analysis in Chaidez. In Chaidez, Chaidezpleaded guiltyto deportable offenses, but her attorney failed to advise her ofthe immigration consequences ofpleading guilty. !d. at 1106. Her convictionbecame final in 2004. !d. In 2009, after immigrationproceedings

4In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting
commenced against her, she filed a writ ofcoram nobis 1in federal district court, arguing ineffective assistance ofcounsel under the SixthAmendment. !d. The Court decidedPadilla while Chaidez'spetitionwas still pending, and the Court granted her petition for certiorari to determine whetherPadilla applied retroactively to her. Jd. at 1106-07. In finding thatPadilla created a newrule (and thus that it could notbe applied retroactively), the Court's analysis hinged onthe distinction between defense counsel's duty to inform clients about deportation consequences as a matter of professional competence and defense counsel's requirements under the Sixth Amendment. See id. at 1108. The Courtnotedthat "hadPadilla merely made clear that a lawyerwho neglects to inform a client about the risk ofdeportation is professionally incompetent," thenPadilla would nothave created a newrule. !d. Indeed, inPadilla, the Court notedthatthepleaform used by Kentuckytrial courts already "provides notice ofpossible immigration consequences" and that many other states (including Washington) "requiretrial courts to advise defendants ofpossible immigration consequences." 559 U.S. at 374 n.15. However, in Chaidez, the Court

1Chaidez filed awrit ofcoram nobis instead ofhabeas reliefbecause she was no longer "'in custody"' and therefore could not seek habeas relief. Chaidez, 133 S. Ct. at 1106 n.l (citing 28 U.S.C. §§ 2255, 2241). The Court assumed without deciding that nothing in the case turned "onthe difference between a coram nobispetition and ahabeas petition." !d. 5In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting notedthat "Padilla did something more." 133 S. Ct. at 1108. Padilla considered whether "advice about deportation" was "'categoricallyremoved' from the scope of the Sixth Amendment right to counsel because it involved only a 'collateral consequence' ofa conviction, rather than a component ofthe criminal sentence." Id. (quotingPadilla, 559 U.S. at 366). In other words, Padilla broke new ground by determining that attorneys are required to inform their clients about the immigration consequences ofpleading guilty under the SixthAmendment. As discussed above, Washington courts, like the federal courts and many other state courts priorto Padilla, "concludedthat the SixthAmendment [did] not require attorneys to informtheir clients ofa conviction's collateral consequences, including deportation." Id. at 1109; Martinez-Lazo, 100 Wn. App. at 876-78. Only Colorado and New Mexico heldthat the SixthAmendmentrequired attorneys to inform their clients ofa conviction's collateral consequences. Chaidez, 133 S. Ct. at 1109 & n.9 (citingPeople v. Pozo, 746 P.2d 523, 527-29 (Colo. 1987); State v. Paredez, 2004- NMSC-036, 136 N.M. 533, 539, 101 P.3d 799). Since our courts' interpretation of the Sixth Amendmentwas the same as the federal courts, our Teague analysis here should mirror the United States Supreme Court's Teague analysis in Chaidez. Thus, like the Supreme Court, I would hold thatPadilla created a new rule in Washington and cannot be applied retroactively under Teague. The majority's conclusionto the contrary is erroneously based on statutory authority, as explained below.
6In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting 3. The Majority FundamentallyErrs by Conflating Statutory and ConstitutionalAuthority As discussed above, Washingtonhas longrequired trial courts and attorneys to inform defendants ofthe immigration consequences ofpleading guilty as a matter of practice andprofessional competencepursuantto a statute. However, we never required that practice under the SixthAmendmentuntil we decidedState v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011), in light ofPadilla. The majority fundamentally errs by giving a statutory attorney practice standardthe same legal authority as a constitutional attorneypractice standard for Teague retroactivity purposes. That is simply not correctunder Teague. To determine retroactivityunder Teague, we must assess whether a constitutional rule ofcriminal procedure is settled

ornew, not whether a statutory rule is settled ornew. In 1983, our legislature passed a bill requiring that defendants be advised of immigration consequences beforepleading guilty. LAWS OF 1983, ch. 199, § 1(2) (currently codified as RCW 10.40.200(2)). Thatbeing said, our courts have consistentlyheld "that a deportationproceeding that occurs subsequentto the entry of
a guiltyplea is merely a collateral consequence ofthatplea." In re Pers. Restraintof Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). Accordingly, beforePadilla and Sandoval, our courts had concluded thatthe SixthAmendment did notrequire attorneys to inform their clients ofa conviction's collateral consequences, including

7In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting deportation. See Martinez-Lazo, 100 Wn. App. at 876-78 (holding thatMartinez-Lazo did not receive ineffective assistance ofcounsel because "adefendant need notbe advised ofthe possibility ofdeportation," which is merely a collateral consequence). As discussed above, we did not recognize that the SixthAmendment required attorneys to give competent advice about deportation consequences until Sandoval, in light ofPadilla. See Sandoval, 171 Wn.2d at 169-71. The majority fundamentally errs by asserting that in 1983, "our legislature did whatPadilla ultimately did in 2010-itrejected the direct-versus-collateral distinction
as applied to immigration consequences, declaring that a noncitizen defendant mustbe warned about immigration consequences before pleading guilty." Majority at 8. The legislature did not reject the "direct-versus-collateral distinction" in enacting what is
now RCW 10.40.200 because it did not (and does not) have the constitutional authority to declare what the SixthAmendment means for determining what constitutes ineffective assistance ofcounsel-thatis ourjob. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803) ("Itis, emphatically, the province and duty ofthejudicial department, to say what the law is."). Althoughthe legislature can set practice standards for attorneys, only Washington courts can determine whether an attorney's violation ofa legislative standard constitutes ineffective assistance under the SixthAmendment. And in Washington, as discussed above, our courts had decided that an attorney failing to give advice about immigration consequences (as required by
8In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting
RCW 10.40.200) was categoricallyremoved from the scope ofthe SixthAmendment. Martinez-Lazo, 100 Wn. App. at 876-78. Despite the existence ofRCW 10.40.200(2), the Court ofAppeals' decision in Martinez-Lazo accurately reflected the scope ofWashington constitutional lawprior to Padilla. EvenMartinez-Lazo "acknowledge[d) the general rule in Washingtonthat deportation is a collateral consequence"; instead, he argued that because "his deportation [was] certain, [it was] therefore no longer a collateral consequence." !d. at 876-77. Martinez-Lazo's argument eschewing the distinctionbetween direct and collateral consequences in the deportation context was notrecognized until Padilla and Sandoval. Thus, although Washingtonstatutory lawprovidedthat attorneys were required to inform their clients ofimmigration consequences, it was not a constitutionalrequirement under our state courts' interpretation ofthe Sixth Amendment. That distinction should be dispositive ofour Teague analysis-we are determining whether a constitutional rule ofcriminal procedure is retroactive, not a statutory rule. Itshouldbe evident from the majority's owncitations that it has no authority to support its holding. The onlypre-Padilla case the majority cites that actually held that it was ineffective assistance ofcounsel for an attorney to fail to advise his or her client ofthe immigration consequences ofpleading guilty is from NewMexico. Paredez, 136 N.M. 533. As noted above, that is one ofthe two states the United
9In re Pers. Restraint ofTsai, No. 88770-5 In re Pers. Restraint of Jagana, No. 89992-4 Owens, J., Dissenting States Supreme Court discussed in Chaidez that did not consider deportation to be a collateral consequence. 133 S. Ct. at 1109 & n.9. Thus, I would conclude thatPadilla created a newrule in Washington, and I would therefore holdthat the rule imposedbyPadilla is notretroactive under Teague. Accordingly, I would find the petitioners' personal restraint petitions time barred. CONCLUSION I recognize that "[t]his case is not a faceless one that bears no consequences." Majority at 17. Butwe are a court oflaw, and we are required to faithfully apply our precedent. Our cases have consistently applied the Teague analysis to decide whether constitutional rules apply retroactively. Under a proper Teague analysis here, we do not look to whether our courts shouldhave been interpreting the SixthAmendmentto require attorneys to inform their clients ofthe deportation consequences ofpleading guilty. Rather, we must assess how our courts actually interpreted the Sixth Amendment and then decide whetherPadilla broke new ground from our courts' prior approach. Prior to Padilla, our courts had concluded thatthe Sixth Amendment did not apply to an attorney's advice about the immigration consequences ofpleading guilty. Thus, Padilla created a newrule inWashington. I would therefore holdthat Padilla may not be applied retroactively under Teague. Accordingly, I would find Tsai's and Jagana's personal restraint petitions time barred and affirm the Courtof Appeals.

10In re Pers. Restraint ofTsai,No. 88770-5 In re Pers. Restraint ofJagana, No. 89992-4 Owens, J., Dissenting

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