No English, No Problem

Cun-Lara v. State (ICA March 28, 2012)

Background. Isidro Oswaldo Cun-Lara, a citizen of Guatemala, was charged with methamphetamine trafficking (HRS § 712-1240.6(2)), promoting a dangerous drug in the third degree (HRS § 712-1243) and unlawful use of or possession of drug paraphernalia (HRS § 329-43.5(a)). He appeared for the arraignment, waived a preliminary hearing, and was arraigned again in the circuit court all without requesting an interpreter. He had an attorney with him too. All continuances of his trial at pretrial conferences were conducted in English without the aid of an interpreter. Cun-Lara entered a plea agreement.

At the change-of-plea hearing, Cun-Lara pleaded no contest to the paraphernalia charge and moved to defer the no-contest plea. His attorney said that an interpreter was unnecessary. The change of plea colloquy was in English without an interpreter. He signed a change-of-plea form that expressly said that "if I am not a citizen of the United States, a conviction or a plea of guilty or no contest, whether acceptance of my plea is deferred or not, may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States." At the hearing, Cun-Lara informed the court that English is his second language, but he understood English and had no difficulty understanding English. In addition to the form, the circuit court informed Cun-Lara of the possible consequences a no-contest plea could have on his immigration status. The circuit court found that Cun-Lara knowingly and voluntarily entered a no contest plea. Cun-Lara's motion to defer was denied and he was sentenced to five years probation. At the sentencing hearing, no interpreter was requested and none was present. Cun-Lara spoke English at the sentencing hearing.

About one year later, the Dept. of Homeland Security issued a warrant on Cun-Lara for immigration purposes. Cun-Lara, now with a new attorney, filed a petition to set aside the no contest plea pursuant to Hawai'i Rules of Penal Procedure Rule 40. Cun-Lara explained in the petition that he had only a limited understanding of the English language and did not fully understand what was happening at the change of plea hearing. Cun-Lara also challenged his trial attorney's effectiveness in advising him on the immigration consequences in taking the plea. The circuit court denied the petition without hearing. Cun-Lara appealed.

Ineffective Assistance of Counsel Claims in Hawai'i. A claim of ineffective assistance of counsel requires the defendant to show (1) "that there were specific errors or omissions reflecting counsel's lack of skill, judgment, or diligence; and (2) that such errors or omissions resulted in either the withdrawal or substantial impairment of a potentially meritorious defense." State v. Wakisaka, 102 Hawai'i 504, 513-14, 78 P.3d 317, 326-27 (2003). Actual prejudice need not be proven. Id.

Padilla v. Kentucky Cun-Lara argued that his trial attorney was constitutionally ineffective because pleading to the paraphernalia charge would result in automatic deportation and his lawyer advised him that he "might get lucky and not be deported." The ICA rejected this argument by distinguishing Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473 (2010). There, the SCOTUS held that defense counsel was ineffective in advising his client that even though the charge--trafficking a large amount of marijuana--was a deportable offense, Padilla had nothing to fear since he had been in the country for so long. Padilla argued that he would not have pleaded guilty but for the advise of counsel. The SCOTUS agreed and held that counsel was ineffective, but remanded to consider the prejudice prong of the federal ineffective assistance of counsel claim. Id. at 1487.

Distinguishing Padilla v. Kentucky According to the SCOTUS, "[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advise is equally clear." Id. at 1483.

The ICA held that deportation consequences flowing from Cun-Lara's plea were not "truly clear" so all that needed to be shown was the general advisement that a plea could expose him to adverse immigration consequences. The ICA reasoned that Padilla's drug offense was an "aggravated" offense that eliminated any possibility of challenging the removal proceedings under immigration law. An "aggravated felony" is defined under 8 U.S.C. § 1101(a)(43)(B). This includes trafficking offenses, but according to the ICA, it does not include paraphernalia. The ICA analyzed federal immigration law and concluded that under this offense, Cun-Lara could have challenged the removal proceedings and thus, the deportation consequences from his plea were not "truly clear."

On Advising your Non-Client . . . Having held that the immigration consequences were not "truly clear," the ICA next had to determine if Cun-Lara's attorney gave sufficient advice. Here, his attorney told him that he would be lucky if he would not be deported. That, according to the ICA, constituted sufficient advice that pleading no contest carried the risk of adverse immigration consequences. Nothing in the record established the first prong of ineffective assistance of counsel. There were no errors or omissions that were deficient.

And No Interpreter Needed Here Either. The ICA also rejected Cun-Lara's claim that an interpreter was necessary. Waiver must be done knowingly, intelligently, and voluntarily. State v. Friedman, 93 Hawai'i 63, 68, 996 P.2d 268, 273 (2000). Cun-Lara argued that he did not provide a valid waiver because he needed an interpreter throughout the proceedings. Generally, "where a defendant cannot understand and speak English, the judge is required to appoint an interpreter to aid a defendant." State v. Faafiti, 54 Haw. 637, 638, 519 P.2d 697, 699 (1973). The court may appoint an interpreter when the defendant has "some knowledge of English and he is reasonably able to converse in English[.]" Id. at 639, 519 P.2d at 699. The ICA looked at the totality of the circumstances and held that Cun-Lara understood English well enough to respond to the court's questions and participate in his case. The no-contest plea was entered knowingly, intelligently, and voluntarily. There was no way counsel was constitutionally ineffective.