IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78767-5-I Petitioner, DIVISION ONE
v. UNPUBLISHED OPINION BRUCE HAROLD NEMETH, Respondent. FILED: February 3, 2020 CHUN, J.

— Bruce Nemeth, a Canadian citizen, pleaded guiltyto obstructing a public servant in 1998. Nemeth entered his plea unrepresented by counsel. Nearlytwo decades later, in 2017, Nemeth moved to withdraw his plea, claiming that he entered itwithout knowledge that it could lead to his deportation. The district court denied Nemeth’s motion. The superior court, however, then granted the motion on a RALJ appeal. The State nowappeals. Forthe reasons discussed herein, we reverse the superiorcourt’s decision. I. BACKGROUND Nemeth is a Canadian citizen living in the United States. In 1998, Nemeth pleaded guilty in district courtto obstructing a public servant. Nemeth entered the plea unrepresented by counsel. Nemeth claims thejudicial officerwho accepted his plea did not inform him that his offense could result in his deportation. The docketfor his conviction lacks any specific reference to him being informed ofthe immigration consequences of his plea.No. 78767-5-1/2
Nemeth says that afterthe 2016 United States presidential election, he began to fear his conviction could serve as a possible basis for his deportation. Thus, in 2017, Nemeth sought to withdraw his guilty plea on the ground that he
was not informed of its immigration consequences. Nemeth filed a motion to withdraw his guilty plea in district court, which the court commissionerdenied. Nemeth filed a second motion to withdraw his guilty plea, supported by a declaration claiming that he did not knowthe possible immigration consequences of his plea atthe time he entered it, and claiming that his plea constituted a violation ofthe United States Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The district court commissionertreated the second motion as a motion to reconsider, and denied it. Nemeth appealed to the superior court. Atthe RALJ hearing, the superior court indicated that Nemeth’s declaration, plus the lack ofany mention of immigration consequences in the 1998 docket, persuaded itthatthe court commissioner had not originally informed Nemeth ofthe possible immigration consequences of his plea. Butthe superior court ordered a reference hearing in the district court and requested findings offact. Notably, the superior court said that itwould not “restrictthe nature ofthe reference hearing.” Nemeth presented the only evidence atthe reference hearing—his testimony, which the district courtfound lacked credibility. The district court again denied Nemeth’s motion.

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When the parties appeared before the superior court again, it adhered to its previous position that Nemeth had not been informed ofthe possible immigration consequences ofthe plea, since the State had provided no evidence to rebut Nemeth’s assertion that he had not received immigration warnings from the court. The superior court concluded that Nemeth’s motion to vacate was nottime barred and determined that, because the 1998 district court commissionerdid not inform him ofthe possible immigration consequences of his plea, the plea was not intelligently made as required bythe federal and state constitutions. Thus, the superior court granted Nemeth’s motion. The State appeals. II. ANALYSIS The State argues thatthe superiorcourt erred in (1) concluding that a legal basis exists for Nemeth’s motion to withdraw his plea, (2) determining that the motion was timely, and (3) ignoring the district court’s credibilityfindings. Nemeth disagrees on all counts. Assuming, without deciding, thatthe superior court did not erron the first and second issues, we conclude thatthe superior court erroneously disregarded the district court’s credibilityfinding. We review a ruling on a motion to withdrawa guilty plea forabuse of discretion. State v. Martinez-Leon, 174 Wn. App. 753, 759, 300 P.3d 481 (2013). Atrial court abuses its discretion when its decision runs contrary to law. State v. Kassner, 5 Wn. App. 2d 536, 539, 427 P.3d 659 (2018). A petitionerbearsthe burden of proving, by a preponderance ofthe evidence, the issues in a reference hearing. In re Pers. Restraint ofGentry, 137
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Wn.2d 378, 410, 972 P.2d 1250 (1999). Credibility determinations are leftto the finderoffact and are unreviewable on appeal. Gentry, 137 Wn.2d at 410—11. Following oral argument on RALJ appeal, the superior court ordered a reference hearing, and requested thatthe district court enterfindings offact. The superiorcourtfurthersaid that itwould not “restrictthe nature ofthe reference hearing.”1 Because the superior court did not limitthe scope ofthe hearing, the district courtwas free to entera determination as to Nemeth’s credibility. Nemeth testified atthe reference hearing. Thereafter, the district court found that Nemeth lacked credibility, gave no weightto his testimony, said that it could therefore not make anyfindings offact, and concluded that he had failed to meet his burden. The district court’s credibilitydetermination is unreviewable. See Gentry, 137 Wn.2d at411. The only evidence in the reference hearing was Nemeth’s testimony. Thus, he failed to meet his burden of proving the issues at the hearing. Reversed.

WE CONCUR:

1 In an addendum to its orderon RALJ, the superiorcourt indicated that it had previously ordered the district courtto conduct a reference hearing solelyforthe purpose of“allow[ing] the Stateto establish that [the 1998 court commissioner] had advised 

### [] Nemeth ofthe immigration consequences” ofhis plea. However, the court’s priororal ruling clearly indicated that itwas not limiting the scope ofthe hearing. 4