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UNPUBLISHED OPINION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 a to '-/>("; 

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

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

### withdraw theguilty pleafor delivery ofmethamphetamine in violation ofthe Uniform Controlled Substances Act, chapter 69.50 RCW. Osorio-Nicolas contends he did not 

### voluntarily orintelligently enterinto theplea. Becausesubstantial evidence supports the court'sfinding thatOsorio-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 

### Departmentconfidential informant. On January 27, 2011, theState charged OsorioNicolas with one count ofdelivery ofmethamphetamine and onecount ofdelivery of heroinin violation of the Uniform Controlled Substances Act, RCW 69.50.401(1), (2)(a) 

### and (b). Osorio-Nicolas retained attorneyAnthony Grasherto represent him.No. 68542-2-1/2 

### On June 8, 2011, Osorio-Nicolas entered a plea ofguilty to one count ofdelivery of methamphetamine. A Spanish interpreterassisted Osorio-Nicolas. During the hearing, Osorio-Nicolas told the court that the interpreter translated the entirety of the "Statement ofDefendant on Plea ofGuilty." The Statement of Defendant on Plea of Guilty addresses the immigration consequences ofthe plea. 

### IfIam 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 thejudgment and sentence. Osorio-Nicolas argued that he did not voluntarily and intelligently enter into the plea because his attorney did not advise him ofthe immigration consequences of pleading guilty to delivery of methamphetamine. The court held an evidentiary hearing on his motion withdraw the plea and vacate thejudgment 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 himthat 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 onlybriefly summarized the plea form to himNo. 68542-2-1/3

at the plea hearing, and that neither Grasher nor the interpreter read to himthe portion ofthe plea form that refers to the immigration consequences ofthe plea. OsorioNicolas said that he would not have pleaded guilty ifhe 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 himthe 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 ofentering 

### into a guilty pleawith 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 bedeported. There is no question aboutthat." Grasher said that Osorio-Nicolas wanted to enter into 

### theplea because he "didn'twanttorisk a 5- to 10-yearsentence with the same result of him being deported." 

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

## StatementofDefendanton Plea ofGuilty, the declaration ofGrasher, and the DVD1 recording ofthe June 8, 2011 pleahearing. Thecourt denied the motion towithdraw the guiltyplea 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] thatpleading guilty to a charge of 1(Digital versatile disc.)No. 68542-2-1/4 

### possession ofmethamphetamine 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 offact state, in pertinent part: 

### 4. [T]he Court finds that Mr. Grasher. . . correctly informed the Defendantthat a conviction for the drug charges would result inthe 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, ifproven, 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 totrial. Mr Grasher attempted to 

### negotiate a reduction of chargesfrom felonies tomisdemeanors, butthe Staterejected anyproposal along thatline because the State had evidence that the Defendant had engaged in four orfive otherdeliveries of 

### methamphetamine to the same confidential informant. Mr. Grasher advised the Defendantthat ifhe was prosecuted on all ofthese drug 

### charges, hecould face a sentenceof60 to 120 months in prison, with the inevitable deportation thereafter. 7. The Defendant testified that Mr. Grasher told him that he 

### would not bedeported and that he hadnothing toworry aboutby pleading 

### guilty. The Courtdoes notfind this testimonyto becredible. Mr. Grasher has beenpracticing criminal law in both state andfederal courts since 2006 and has experiencewith defendants facing immigration 

### consequences as theresultofdrug charges. Mr. Grasher knew, in June 2011, that the immigration consequences ofpleading 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 aftertheDefendantcompleted his sentence. He communicatedthese 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 ofDefendant on Plea of 

## Guilty had beentranslated in its entirety in Spanishfor him before he had signed it. He was clearly advised, before pleading guilty, that ifhe was not a U.S. citizen, aguilty plea "is grounds for deportation" from theUnited States. He stated, on the record, that he understood this consequence of 

## pleading guilty. The prosecutorfollowed up with the question "We don'tNo. 68542-2-1/5 

### know for sure what the immigration consequences will be. Do you still wish to proceed with entering a plea ofguilty?" 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 guiltyplea 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 ofdiscretion. State v. Marshall, 144 Wn.2d 266, 280, 27 P.3d 192 (2001). Atrial court abuses its discretion when itbases 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 offact and, ifso, whetherthe 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 evidenceNo. 68542-2-1/6 is evidence that" 'persuade[s] a fair-minded person ofthe truth ofthe 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 ofentering 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]fthe 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 ofthe 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 himthat 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 directlycontradicts Osorio-Nicolas 

### and supports the court's findings that Osorio-Nicolas was informed of the immigrationNo. 68542-2-1/7 

### consequences of a guilty plea. Grashertestified that he discussed the immigration consequences ofthe charges with Osorio-Nicolas on several occasions. We defer to the trial court on the question ofwitness 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 ofentering into a guilty plea and that "[Osorio-Nicolas] was aware ofthe fact that, no matter what 

### happened, whetherit was a plea or a trial, that hewould be deported."2 We affirm the trial court's order denying defendant's motion to withdraw the plea and vacate thejudgment and sentence.



### -S-4

# 'r-dlRft

WE CONCUR:

2Unlike inSandoval and Martinez, the record shows that Grasher expressly informed OsorioNicolas of the immigration consequences of enteringinto a guilty plea and that enteringinto the plea would result in his deportation.