The Colorado Court of Appeals issued its opinion in People v. Espino-Paez on Thursday, September 25, 2014.
Guilty Plea—Deferred Judgment—Federal Immigration Law—Residency—Crim.P. 32(d) and 35(c)—Ineffective Assistance of Counsel—Jurisdiction.
Defendant, a Mexican citizen, pleaded guilty to the use of a schedule II controlled substance. He received a deferred judgment for one year on the condition that he successfully complete drug and alcohol treatment. After he completed the treatment, the district court permitted him to withdraw the plea, and the court dismissed the case with prejudice. Defendant thereafter sought permanent residency in the United States, which was denied because a withdrawn plea in a Colorado state court constitutes “conviction” of a felony under federal immigration law. Defendant filed a post-conviction motion seeking to withdraw his plea pursuant to Crim.P. 35(c) and Crim.P. 32(d) based on ineffective assistance of counsel, which was denied.
On appeal, defendant contended that the district court erred in summarily denying his Crim.P. 35(c) motion. However, a deferred judgment is not reviewable under Crim.P. 35(c) unless it is revoked and a judgment is entered.
Defendant further contended that the district court abused its discretion in failing to consider his Crim.P. 32(d) motion to withdraw his guilty plea, and requested that the case be remanded for that purpose. Because defendant had already successfully completed his deferred judgment, the district court did not have jurisdiction to rule on defendant’s motion. The appeal challenging the order denying relief was dismissed and the order denying relief was affirmed.