IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JUAN OSORIO-NICOLAS,

Appellant.

DIVISION ONE

UNPUBLISHED OPINION

FILED: September 23, 2013

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No. 68542-2-1 ^ -p&.

Schindler, J. — Juan Osorio-Nicolas appeals the order denying his motion to

withdraw the guilty plea for delivery ofmethamphetamine in violation ofthe Uniform

Controlled Substances Act, chapter 69.50 RCW. Osorio-Nicolas contends he did not

voluntarily or intelligently enter into the plea. Because substantial evidence supports

the court'sfinding that Osorio-Nicolas was clearly informed about the immigration

consequences of a guilty plea, we affirm.

FACTS

Juan Osorio-Nicolas sold methamphetamine and heroin to a Seattle Police

Department confidential informant. On January 27, 2011, the State charged OsorioNicolas with one count ofdelivery ofmethamphetamine and one count ofdelivery of

heroin in violation of the Uniform Controlled Substances Act, RCW 69.50.401(1), (2)(a)

and (b). Osorio-Nicolas retained attorney Anthony Grasherto represent him.
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On June 8, 2011, Osorio-Nicolas entered a plea of guilty to one count of delivery

of methamphetamine. A Spanish interpreter assisted Osorio-Nicolas. During the

hearing, Osorio-Nicolas told the court that the interpreter translated the entirety of the

"Statement of Defendant on Plea of Guilty." The Statement of Defendant on Plea of

Guilty addresses the immigration consequences of the plea.

IfI am not a citizen of the United States, a plea of guilty to an offense

punishable as a crime under state law is grounds for deportation,

exclusion from admission to the United States, or denial of naturalization

pursuant to the laws of the United States.

Osorio-Nicolas was also told that entering the guilty plea " 'is grounds for deportation'"

and he "stated, on the record, that he understood this consequence of pleading guilty."

The court found that Osorio-Nicolas was knowingly, intelligently, and voluntarily entering

the plea of guilty. The court sentenced Osorio-Nicolas to 12 months and one day in

prison.

Osorio-Nicolas filed a motion to withdraw his guilty plea and vacate the judgment

and sentence. Osorio-Nicolas argued that he did not voluntarily and intelligently enter

into the plea because his attorney did not advise him of the immigration consequences

of pleading guilty to delivery of methamphetamine. The court held an evidentiary

hearing on his motion withdraw the plea and vacate the judgment and sentence.

Osorio-Nicolas and Grasher testified at the hearing.

Osorio-Nicolas testified that he met with Grasher two or three times. OsorioNicolas said that he told Grasher that he was a resident "[tjhrough my wife." According

to Osorio-Nicolas, Grasher assured him that his immigration status "was no problem."

Osorio-Nicolas also testified that his attorney never told him to contact an immigration

attorney. Osorio-Nicolas said that Grasher only briefly summarized the plea form to him
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at the plea hearing, and that neither Grasher nor the interpreter read to him the portion

of the plea form that refers to the immigration consequences of the plea. OsorioNicolas said that he would not have pleaded guilty if he had known that he would be

deported.

Grasher testified that he told Osorio-Nicolas that a conviction on the pending

drug charges would result in "removal from the United States under federal immigration

law." Grasher said that he recommended Osorio-Nicolas consult with an immigration

attorney and gave him the name of an immigration attorney. But Osorio-Nicolas told

Grasher that he had already met with an immigration attorney and was aware that he

would be deported unless the charges were reduced to misdemeanors.

Grasher testified that he discussed the immigration consequences of entering

into a guilty plea with Osorio-Nicolas multiple times and Osorio-Nicolas "was aware of

the fact that, no matter what happened, whether itwas a plea or a trial, that he would be

deported." Grashertestified, "I absolutely know he knew he was going to be deported.

There is no question about that." Grasher said that Osorio-Nicolas wanted to enter into

the plea because he "didn't want to risk a 5- to 10-year sentence with the same result of

him being deported."

In addition to the testimony at the hearing, the court also considered the

Statement of Defendant on Plea of Guilty, the declaration of Grasher, and the DVD1

recording ofthe June 8, 2011 plea hearing. The court denied the motion to withdraw

the guilty plea and vacate the judgment and sentence.

The court found that Osorio-Nicolas's testimony was not credible. The court

found that Grasher "correctly advised [Osorio-Nicolas] that pleading guilty to a charge of

1(Digital versatile disc.)
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possession of methamphetamine with the intent to deliverwould lead to deportation."

The court concluded that Osorio-Nicolas knowingly, voluntarily, and intelligently entered

into the plea.

The court's findings of fact state, in pertinent part:

4. [T]he Court finds that Mr. Grasher. . . correctly informed the

Defendant that a conviction for the drug charges would result in the

Defendant's removal from the United States under federal immigration

law. Mr. Grasher recommended that the Defendant consult with

immigration counsel and the Defendant advised Mr. Grasher that he had

already done so and was aware that the charges, if proven, would result in

his deportation.

5. The Defendant and Mr. Grasher discussed the immigration

consequences of the pending charges on several occasions and also

discussed the risk of taking the case to trial. Mr Grasher attempted to

negotiate a reduction of chargesfrom felonies to misdemeanors, butthe

State rejected any proposal along that line because the State had

evidence that the Defendant had engaged in four or five other deliveries of

methamphetamine to the same confidential informant. Mr. Grasher

advised the Defendant that if he was prosecuted on all of these drug

charges, he could face a sentence of 60 to 120 months in prison, with the

inevitable deportation thereafter.

7. The Defendant testified that Mr. Grasher told him that he

would not be deported and that he had nothing to worry about by pleading

guilty. The Court does not find this testimony to be credible. Mr. Grasher

has been practicing criminal law in both state and federal courts since

2006 and has experience with defendants facing immigration

consequences as the result ofdrug charges. Mr. Grasher knew, in June

2011, that the immigration consequences of pleading guilty to a drug

delivery charge under state law were clear, and that[United States

Immigration and Customs Enforcement] could and likely would initiate

removal proceedings after the Defendant completed his sentence. He

communicated these consequences to the Defendant before he entered

his guilty plea before this Court.

8. On June 8, 2011, the Defendant attended the plea hearing

and was assisted by a Spanish interpreter. During the hearing, the

Defendant informed the Court that the Statement of Defendant on Plea of

Guilty had been translated in its entirety in Spanish for him before he had

signed it. He was clearly advised, before pleading guilty, that if he was not

a U.S. citizen, a guilty plea "is grounds for deportation" from the United

States. He stated, on the record, that he understood this consequence of

pleading guilty. The prosecutor followed up with the question "We don't
No. 68542-2-1/5

know for sure what the immigration consequences will be. Do you still

wish to proceed with entering a plea of guilty?" The Defendant said yes.

ANALYSIS

Osorio-Nicolas contends the court erred in denying his motion to withdraw his

guilty plea and vacate the judgment and sentence. Under CrR 4.2(f), a court must allow

withdrawal of a guilty plea if"necessary to correct a manifest injustice." An involuntary

plea constitutes a manifest injustice. State v. Wakefield. 130 Wn.2d 464, 472, 925 P.2d

183(1996).

We review denial of a motion to withdraw a guilty plea for abuse of discretion.

State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). Atrial court abuses its

discretion when it bases its decision on untenable grounds or reasons. State v.

Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006).

Ineffective assistance of counsel can render a plea involuntary and unintelligent.

State v. Sandoval, 171 Wn.2d 163, 169, 249 P.3d 1015(2011). In order to prevail on a

claim of ineffective assistance of counsel, Osorio-Nicolas must demonstrate (1) deficient

performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116

(1990) (adopting the standards in Strickland). If a defendant fails to establish either

prong, we need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563(1996).

Where the trial court has weighed the evidence, our role is to determine whether

substantial evidence supports the findings of fact and, ifso, whether the findings in turn

support the conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994);

State v. Crane, 105 Wn. App. 301, 305-06, 19 P.3d 1100 (2001). Substantial evidence
No. 68542-2-1/6

is evidence that" 'persuade[s] a fair-minded person of the truth of the declared

premises.'" State v. Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997) (quoting

Olmstead v. Dep't of Health, Med. Section. 61 Wn. App. 888, 893, 812 P.2d 527

(1991)). Unchallenged findings are verities on appeal. Hill, 123 Wn.2d at 644.

A constitutionally competent defense attorney must advise a defendant about the

immigration consequences of entering into a guilty plea. Padilla v. Kentucky, 559 U.S.

356, 367, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Sandoval, our supreme court

held that "[i]f the applicable immigration law 'is truly clear' that an offense is deportable,

the defense attorney must correctly advise the defendant that pleading guilty to a

particular charge would lead to deportation." Sandoval, 171 Wn.2d at 170 (quoting

Padilla, 559 U.S. at 369).

It is clear that a conviction for delivery of methamphetamine in violation of the

Uniform Controlled Substances Act results in deportation. State v. Martinez, 161 Wn.

App. 436, 441-42, 253 P.3d 445 (2011). "Any alien who is convicted of an aggravated

felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).

Possession of a controlled substance with intent to deliver is an "aggravated felony." 8

U.S.C. §1101(a)(43)(B).

Osorio-Nicolas challenges the finding that his testimony that his attorney "told

him that he would not be deported and that he had nothing to worry about by pleading

guilty" was not credible. Osorio-Nicolas asserts that nothing in the record contradicts

his testimony.

Contrary to his assertion, Grasher's testimony directly contradicts Osorio-Nicolas

and supports the court's findings that Osorio-Nicolas was informed of the immigration
No. 68542-2-1/7

consequences of a guilty plea. Grasher testified that he discussed the immigration

consequences of the charges with Osorio-Nicolas on several occasions. We defer to

the trial court on the question of witness credibility. State v. Thomas, 150 Wn.2d 821,

874-75, 83 P.3d 970 (2004). Grasher testified that he had multiple conversations with

Osorio-Nicolas in which they discussed the immigration consequences of entering into a

guilty plea and that "[Osorio-Nicolas] was aware of the fact that, no matter what

happened, whetherit was a plea or a trial, that he would be deported."2

We affirm the trial court's order denying defendant's motion to withdraw the plea

and vacate the judgment and sentence.

-S-4'r-dlRft

WE CONCUR:

2 Unlike in Sandoval and Martinez, the record shows that Grasher expressly informed OsorioNicolas of the immigration consequences of entering into a guilty plea and that entering into the plea

would result in his deportation.