Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Molina

Court of Appeals of New Mexico

September 12, 2017

STATE OF NEW MEXICO, Plaintiff-Appellant,
v.
MARIO MOLINA, a/k/a MARIO AVITA MOLINA, Defendant-Appellee.

         This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

         APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Jeff Foster McElroy, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellant

          Law Office of Erlinda Ocampo Johnson, L.L.C. Erlinda O. Johnson Albuquerque, NM for Appellee

          MEMORANDUM OPINION

          M. MONICA ZAMORA, Judge

         {1} The State appeals the district court's order granting Defendant's motion to withdraw his plea. We reverse the district court's decision allowing Defendant to withdraw his plea.

         I. BACKGROUND

         {2} On October 21, 1991, Defendant was arrested and charged with criminal sexual penetration (CSP) and false imprisonment. NMSA 1978, §§ 30-9-11(D) (1991, amended 2009), 30-4-3 (1963). At the time, Defendant was twenty-one years old and had been in the United States illegally for three months. According to the criminal complaint, filed on October 23, 1991, the State alleged that Defendant and his boss picked up two female hitchhikers and forced them to consume alcohol. One of the victims, Cora, was between the ages of thirteen and sixteen. The State alleged that Defendant and his boss held the victims against their will. Based on the criminal complaint, Defendant forcibly raped Cora. The victims were able to escape and contact police.

         {3} Defendant's attorney, Mr. Sam B. Sanchez, testified that he had long discussions with Defendant about the charges and penalties involved in the case against him. Defendant told Mr. Sanchez that he did not wish to go through the preliminary hearing at which the alleged victim was scheduled to testify but wanted to waive the hearing and go directly to the district court. Shortly thereafter, on November 8, 1991, Defendant entered into a plea agreement whereby he pled guilty to the charges in exchange for a deferred sentence, three years probation, and an agreement to be deported to Mexico and not return to the United States during the term of the probation. Defendant was transported to El Paso, Texas, and was deported after a hearing with the Immigration and Naturalization Service. The deportation documents provide that Defendant must request permission to return to the United States, and that any person who returns within five years without permission is guilty of a felony. Subsequently, Defendant reentered the United States illegally and was in the country for eighteen years when he was again taken into custody and charged with illegal entry of a previously removed alien.

         {4} Defendant filed a Rule 1-060(B)(6) NMRA motion to withdraw his 1991 plea, or in the alternative, a petition for writ of error coram nobis claiming that the attorney who represented him in 1991 was ineffective in that he failed to advise him that entering the plea agreement would result in his automatic deportation. The State filed a motion to dismiss Defendant's petition and Defendant filed a response.

         {5} A hearing was held on the State's motion to dismiss and on Defendant's claim of ineffective assistance of counsel. Defendant and his daughter testified at the hearing. Defendant claimed that, after his arrest in 1991 his attorney told him that there was no evidence to convict him and that he understood that to mean he would be set free. Defendant also testified that his attorney gave him contrary advice by telling him it would be difficult to win the case because it was his word against the victim's word. Defendant testified that his attorney never went over the charges with him, he was never arraigned, and the terms of the plea agreement were never explained to him. Defendant believed that, if he signed the plea agreement and finished the three-year probationary period, all of the charges would "disappear" and his record would be clean. Defendant stated that he did not know that deportation was included in the agreement. He agreed that there was an interpreter present at the plea hearing, but claimed that the plea agreement was not read "word for word, " and he was never told that the plea would subject him to automatic deportation. Defendant filed an affidavit on July 10, 2014, stating that Mr. Sanchez told him he "needed to enter a guilty plea" although he had told him he had not committed the crime and had asked Mr. Sanchez to investigate. His affidavit states that he was not advised that the plea would subject him to automatic deportation, or that by pleading guilty he would be facing certain deportation.

         {6} The district court entered a letter ruling denying Defendant's request to withdraw his plea based on an illegal sentence and denied the State's motion to dismiss. Nevertheless, the district court ruled that Defendant made a prima facie showing of ineffective assistance of counsel based on his affidavit, his testimony, and the testimony of his daughter. An evidentiary hearing was scheduled to determine whether Defendant should be allowed to withdraw his plea.

         {7} At the evidentiary hearing, Defendant's attorney, Sam Sanchez, testified that he had long discussions with Defendant about the charges, the penalties, the consequences of a plea, and the ramifications of a conviction. Mr. Sanchez testified that Defendant was informed that if he was convicted it would affect his immigration and naturalization status and could prevent him from getting that status "secured."

         {8} Following the evidentiary hearing, the district court issued a second letter ruling finding that Mr. Sanchez' representation was deficient and his deficient performance prejudiced Defendant. The district court rejected "[D]efendant's testimony as unreasonable that he did not know that as a condition of his probation that he would have to leave the United States for three years." However, the district court also found that Defendant did not understand that he would be ineligible to apply for legal status or to be sponsored for citizenship by his daughter. The district court concluded that Defendant should be able to withdraw his plea. The letter ruling was incorporated into an order, which included much of the contents of the letter rulings. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.