### FILED Aug. 18, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill



### INTHE COURT OF APPEALS OF THE STA TE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. 

### ESTELAROJAS LOPEZ, Appellant. ) ) ) ) ) ) ) ) ) 

### No. 30814-6-111

UNPUBLISHED OPINION

PENNELL, J. -EstelaLopezRojas 1 

### appeals an order denying hermotion to withdrawher guilty plea. We reverse and remand this matter for an evidentiary hearing. 

### FACTS In 1991, 19-year-oldEstelaLopezRojas entered anAlford2 

### pleato delivery ofa controlled substance. Her statement onplea ofguilty containedthe following provision:

1

### We note the appellant signs hername as "EstelaLopezRojas." 2North Carolina v. Alford, 

### 400 U.S. 25, 91 S. Ct. 160, 27 

### L. Ed. 2d 162 (1970).No. 30814-6-111 

### State v. RojasLopez
I understand that ifI am not a citizen ofthe United States, a plea ofguilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial ofnaturalization pursuant to the laws ofthe United States. Clerk's Papers (CP) at 5. During her plea colloquy, Ms. Lopez Rojas told the trial court
an interpreter had read her the plea agreement and she understood everything read to her. On her own initiative, Ms. Lopez Rojas asked the trial court whether immigration authorities would deport her to Mexico after she finished her sentence. The trial court responded, "I do not know that. I am not in charge ofthat. But it is entirelypossible." CP at 89. The trial court imposed 21 months' confinement and allowed Ms. Lopez Rojas to self-report for service ofher sentence. Ms. Lopez Rojas never turned herselfin as required. A bench warrant was issued. In February 2011, Ms. Lopez Rojas was arrested on the warrant. Ms. LopezRojas moved to withdraw her guilty plea under CrR7.8 and attached a declaration to her motion. In the declaration, Ms
..Lopez Rojas maintained she was unaware at the time she pleaded guilty that she would face automatic deportation. She further asserted she would have proceeded to trial on a duress defense had she known thatpleading guilty would subject her to automatic deportation.

2 

# t 

# INo. 30814-6-111 

### State v. RojasLopez
The trial court denied Ms. Lopez Rojas's motion. While the court suggested she had failed to meetherburden ofestablishing ineffective assistance ofcounsel, the ultimate ruling was limited to procedural error. The trial courtheld Ms. LopezRojas's motion was untimely because it had been filed more than a year after her entry ofthe plea andjudgment. Ms. Lopez Rojas appeals. ANALYSIS This court reviews a trial court's denial ofa CrR7.8 motion for an abuse of discretion. 

### State v. Martinez, 161 Wn. App. 436,440, 253 P.3d 445 (2011). A trial court abuses its discretion ifit applies the wrong legal standard orbases its ruling on an
erroneous view ofthe law. 

### State v. Gomez Cervantes, 169 Wn. App. 428,431,282 P.3d 98 (2012). The trial court denied Ms. Lopez Rojas's motion for reliefbecause it was untimely. Generally, a person cannot collaterally attack ajudgment and sentence more than one year after the conviction becomes final. RCW 10.73.090(1). This includes motions to withdraw guilty pleas. 3 RCW 10.73.090(2). However, this time limit is subjectto a

3 The State appears to argue this is a direct appeal, and this court should dismiss it because Ms. Lopez Rojas did not appeal thejudgment and sentence within 30 days. RCW 10.73.090(2) makes clearthat motions to withdraw guilty pleas are collateral attacks, not direct appeals. 3No. 30814-6-111 

### State v. RojasLopez
number ofexemptions. 

### See RCW 10.73.100. One ofthese exemptions allows a petitionerto collaterally attack ajudgment afterthe one-year deadline ifhe or she establishes: 1) a substantial change in the law occurred, 2) that is material, and 3) that applies retroactively. RCW 10.73.100(6). Subsequent to the trial court's order, the Washington Supreme Court held that claims such as Ms. Lopez Rojas's, involving an allegation that counsel failed to provide immigration advice, can be made retroactively. 

### In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,351 P.3d 138 (2015). As a result of

### Tsai, it is apparent that Ms. Lopez Rojas's motion to set aside herpleawas timely. The trial court erred when it denied Ms. Lopez Rojas's claim for reliefas timebarred. We reverse the court's order and remand for an evidentiary hearing onthe motion to withdraw plea. At the hearing, the courtmay consider additional evidence relevant to Ms. LopezRojas's motion.4 The court may also determine whetherMs. Lopez Rojas's

4 Contrary to the State's assertion, this court's November 8, 2013, order did not determine Ms. Lopez Rojas was not entitled to an evidentiary hearing. The order simply limited the facts to be considered by this court on appeal. Ten days afterthe November 8, 2013, order, this court stayed Ms. LopezRojas's casependingthe Supreme Court's decision in 

### Tsai. Had the outcome in 

### Tsai been different, an evidentiary hearing would have been unnecessary. Because 

### Tsai provides Ms. Lopez Rojas a legal avenue for relief, remand for an evidentiary hearing is appropriate. 4No. 30814-6-111 

### State v. Rojas Lopez
presence is necessary at the hearing, including consideration ofa telephonic orvideo appearance. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Pennell, J. WE CONCUR:
Fearing, C.J. Lawrence-Berrey, J. 

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