This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 31,116 4 JESUS GONZALES,, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 7 Drew D. Tatum, District Judge 8 Gary K. King, Attorney General 9 William Lazar, Assistant Attorney General 10 Santa Fe, NM 11 for Appellant 12 Albert J. Costales 13 Truth or Consequences, NM 14 for Appellee 15 MEMORANDUM OPINION 16 FRY, Judge. 17 The State of New Mexico appeals the district court’s grant of Defendant Jesus 18 Gonzales’s motion to vacate his plea of no c ontest to child abuse. Defendant titled his 19 request for relief a “Petition for Writ of Coram Nobis, or in the A lternative a Rule [1- 202 060(B) NMRA] Motion to Set Aside a VoidJudgment.” “Because the common law 1 writ of coram nobis was abolished and subs umed into Rule 1-060,” we address the 2 request under Rule 1-060(B). State v. Barraza , 2011-NMCA-111, ¶ 4, ___N.M.___, 3 267 P.3d 815; see State v. Tran , 2009-NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537. 4

On September 3, 2008, Defendant pleaded no contest to child abuse in violation 5 of NMSA 1978, Section 30-6-1(D) (2005) (amended 2009), a third degree felony. 6 Conviction for this offense makes it virtually certain that Defendant, who is not a 7 United States citizen, will be deported to Mexico. Under State v. Paredez , 2004- 8 NMSC-036, ¶ 25, 136 N.M. 533, 101 P.3d 799, Defendant’s counsel was obligated 9 to advise him of the specific consequen ces his plea would haveon his immigration 10 status. The parties do not dispute that Defendant’s counsel failed to meet this 11 requirement, having advised him only that he faced possible deportation. Defendant 12 argues that he received ineffective assistan ce of counsel in agreeing to enter the plea 13 and should therefore be allowed to withdrawit. The district court agreed, and the 14 State appeals. 15 In considering claims of ineffectiv e assistance, we apply the two-pronged 16 Strickland test. “‘A convicted defendant’s claim that counsel’s assistance was so 17 defective as to require reversal of a convi ction . . . has two components. First, the 183 defendant must show that counsel’s perfo rmance was deficient. . . . Second, the 1 defendant must show that the deficient performance prejudiced the defense.’” Lytle 2 v. Jordan , 2001-NMSC-016, ¶ 25, 130 N.M . 198, 22 P.3d 666 (quoting Strickland v. 3 Washington , 466 U.S. 668, 687 (1984). Counsel’s failure to advise Defendant of the 4 specific consequences to his immigration status satisfies the deficient performance 5 prong of the ineffective assistance analysis. Paredez , 2004-NMSC-036, ¶ 19. Thus, 6 we need only address the second prong of Strickland

. 7 “[T]he prejudice prong of the test is diffe rent for defendants convicted at trial 8 than for defendants whose c onvictions rest on pleas.” Patterson v. LeMaster , 9 2001-NMSC-013, ¶ 18, 130 N.M. 179, 21 P.3d 1032. “[I]n th e plea bargain context 10 a defendant must establish that hi s counsel’s performance was objectively 11 unreasonable and that but for counsel’s erro rs, he would not have pleaded guilty and 12 instead gone to trial.” Id. (internal quotation marks and citation omitted). “A 13 defendant who was convicted on a plea is not required to prove thata trial would have 14 resulted in acquittal. The question is whethe r there is a reasonable probability that the 15 defendant would have gone to trial instead of pleading guilty or no contest had 16 counsel not acted unreasonably.” Id. (internal quotation mark s and citation omitted). 17 “[A] defendant seeking to establish that ther e is a reasonable probability that he or she 18 would have gone to trial generally must introduce evidence beyond self-serving 194 statements.” State v. Edwards , 2007-NMCA-043, ¶ 35, 141 N.M. 491, 157 P.3d 56. 1 “Such evidence may include pre-conviction statements or actions indicating the 2 defendant’s preference to plead or to go to trial.” Id. “[C]ourts can look to the 3 strength of the evidence against the defendant in determining whether there is a 4 reasonable probability that the defendant woul d have elected to go to trial because the 5 evidence against a defendant informs his or her decision about whether to challenge 6 the charges at trial.” Id. (internal quotation marks and c itation omitted). “There is a 7 direct relationship between the strength of the case against a defendant and the 8 likelihood that he or she will plead guilty or no contest.” Id. (internal quotation marks 9 and citation omitted). 10 In its decision letter following the hearing on Defendant’s Rule 1-060(B) 11 motion, the district court found that Defendant had presented evidence that he would 12 not have entered the plea agreement had he known he would bedeported. The 13 decision letter did not identify the specific evidence the district court was relying on, 14 stating only, “The evidence presented by . . . Defendant to provehe would not have 15 entered into this plea agreement if he had not relied upon the advice of his attorney 16 [has] merit.” Our own reviewof the record, however, rev eals that the district court 17 had evidence before it to support its decisi on in addition to De fendant’s testimony at 18 the plea withdrawal hearing. 195 We first recognize, as our Supreme Court did in Paredez , that “[d]eportation 1 can often be the harshest consequence of a non-citizen criminal defendant’s guilty 2 plea, so that in many misdemeanor and lo w-level felony cases . . . [he or she] is 3 usually much more concerned about immigration consequences than about the term 4 of imprisonment.” Id. ¶ 18 (alteration in original) (internal quotation marks and 5 citation omitted). Defendant’s circumst ances in the present case suggest that 6 deportation would be a harsh outcome for him because he had left Mexico as a child 7 and legally lived in the United States for almo st fifteen years; his mother, brother, and 8 wife–whose five children he was helping her raise–live in the United States; he owned 9 a house and vehicles with his wife; and he had no life in Mexico. 10 At the time Defendant entered his no c ontest plea and for some time thereafter, 11 the parties appear to havebelieved that if Defendant were granted a conditional 12 discharge for the offense, that outcome w ould not have counted as a conviction for 13 purposes of federal immigration law, and Defendant would not be deported. In his 14 closing argument at the sentencing hearing, for example, defense counsel argued for 15 a conditional discharge in order to avoid a felony conviction that would lead to 16 deportation and thus break up Defendant’s family. However, as the State realized 17 after filing its brief in ch ief in the present appeal, if a defendant admits sufficient facts 181 8 U.S.C. 1101(a)(48)(A) (2010): “The term ‘conviction’ means, with respect 16 to an alien, a formal judgment of gu ilt of the alien entered by a court or, if 17 adjudication of guilt has been withheld, wher e—(i) a judge or jury has found the alien 18 guilty or the alien ha s entered a plea of guilty or nol o contendere[,] or has admitted 19 sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form 20 of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 21 6 to warrant a finding of guilt, it counts as a conviction for immigration purposes even 1 if the trial court withholds an adjudication of guilt. 1 2 In deciding how to plead, Defendant was confronted with two possible negative 3 outcomes: incarceration and deportation. Under the terms of the plea agreement, the 4 no contest plea could result in a conditiona l discharge, which Defendant and the 5 parties believed would mean no incarcer ation and no deportation. The other 6 possibility under the no contest plea wa s conviction, which would mean—as 7 Defendant was incorrectly told—possible deportation and possible incarceration. If 8 instead Defendant had gone to trial, hemight be found not guilty and thus faced 9 neither deportation nor incarceration. If he were found guilty, he faced—he was 10 incorrectly told—possible deportation and lik ely longer incarceration than if he were 11 convicted under a no-contest plea. Thus, Defendant was incorr ectly advised on two 12 levels: he was told that deportation was possible rather than virtually certain, and he 13 was told that a conditional discharge would not count as a conviction under 14 immigration law. As Defendant understood his options, the best outcome was the no 15 contest plea because the wors t-case scenario there likely meant less incarceration than 167 if he were found guilty after trial. As discussed above, th e reality of his choices was 1 quite different: the no contest plea would result in virtually certain deportation. 2 Stated another way, given the reality of his choices asopposed to what he was told, 3 not only was there a “reasonable probability” thathe would have elected to go to trial, 4 it simply made no sense for him to enter the no contest plea. Edwards , 5 2007-NMCA-043, ¶ 35. 6 Finally, although there was graphic eviden ce against Defendant in the form of 7 photographs of the victim’s bruises, if De fendant had correctly understood his options, 8 he had at least some incentive to take his chances at trial because a jury might have 9 accepted his argument that he believed he was defending hi s mother from the victim. 10 CONCLUSION 11 We conclude that but for the incorr ect advice Defendant’s counsel provided, 12 there was a reasonable probability that Defe ndant would have elected to go to trial, 13 and he thus incurred prejudice under the second prong of Strickland

. 14 For the reasons stated above, we affirm the district court and remand for further 15 proceedings consistent with this Opinion. 168 IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4

5 RODERICK T. KENNEDY, Judge 6

7 LINDA M. VANZI, Judge 8