By Sarah Flinn
Sergio Meza filed an action under Utah state law for ineffective assistance of counsel after learning of the immigration consequences for his no contest plea to two drug charges pursuant to a plea in abeyance agreement. Meza v. State, 2015 WL 4878268, at *1 (Utah Aug. 14, 2015). Mr. Meza asserted that he had a right to relief under the Post-Conviction Remedies Act of Utah (PCRA) due to the ineffective assistance of counsel, namely, the failure of his attorney to advise him of the immigration consequences of his plea. Id. The Supreme Court of Utah ultimately concluded that Mr. Meza did not qualify for relief under the PCRA because he was never convicted under state law. Id. Additionally, the Supreme Court declined to exercise its constitutional power to fashion an alternative remedy because, in a surprising twist, it concluded that Mr. Meza already had a remedy under the state’s rules of civil—not criminal—procedure. Id.
Mr. Meza pled no contest to charges of possession and use of a controlled substance and possession of drug paraphernalia. Id. After pleading no contest, Mr. Meza successfully complied with the terms of the plea in abeyance agreement at which point the justice court, a municipal and county court that deals with low-level offenses, withdrew his plea of no contest and dismissed the two drug charges. Id. Mr. Meza subsequently realized that his plea did in fact have immigration consequences, contrary to the advice provided to him by his attorney. Id. He then filed an action under the PCRA seeking to withdraw his plea in abeyance. Id.
By being given incorrect advice about the immigration consequences of conviction, Mr. Meza contends that his plea-stage counsel violated the Sixth Amendment right to effective assistance of counsel. If true, Utah’s PCRA provides an option to vacate the conviction. Utah Code § 78B-9-104 (the PCRA) provides that a person who “has been convicted and sentenced for a criminal offense” is eligible to file an action for post-conviction relief to vacate or modify the conviction or sentence if they fall under one of the listed grounds and are not precluded by Utah Code §§ 78B-9-106 or 78B-9-107. Specifically, Mr. Meza applied for relief under § 78B-9-104(1)(d) that the petitioner had received ineffective assistance of counsel in violation of the United States Constitution or Utah Constitution. The Supreme Court first turned to the plain language of the statute to determine whether it even applies to Mr. Meza. Analyzing the statutory text, the court concluded that a remedy is available under the state post-conviction relief statute for any person who has been convicted and sentenced for a criminal offense. Id. at *2; Utah Code § 78B-9-104(1).
After concluding that the PCRA requires both a conviction and a sentence, the Supreme Court determined that Mr. Meza’s plea in abeyance did not qualify as a conviction for purposes of the statute. Meza, 2015 WL 4878268, at *3-4. It came to this conclusion by relying on Utah Code § 77-2a in defining a plea in abeyance as an order by a court accepting a plea of guilty or no contest from a defendant. Id. at *3. If the defendant successfully completes the conditions of the plea in abeyance agreement, the court may allow withdrawal of a defendant’s plea and order the case dismissed. Id. The Supreme Court further explained that the general rule provided by the Utah plea in abeyance statute is that a completed plea in abeyance is not a conviction unless a specific statutory provision requires otherwise. Id. Because Mr. Meza completed the conditions of the agreement and the justice court withdrew his plea and dismissed the case against him, there was never a conviction entered against him under Utah criminal law. Id. at *4.
Importantly, although Mr. Meza’s plea in abeyance was not considered a conviction for application of the PCRA, it is considered a conviction under the Immigration and Nationality Act, therefore exposing him to potential removal from the United States. Id. In this regard Meza is not unique. Courts in Colorado, Tennessee, and elsewhere have reached similar conclusions: a migrant might be convicted for purposes of immigration law even if not convicted for purposes of state criminal law. The problem arises from the fact that many states have adopted criminal procedures that divert offenders out of the criminal process (and away from convictions) if they comply with specified requirements. Congress, in contrast, views criminal activity by migrants harshly and ties immigration consequences to a wide variety of criminal adjudications that don’t result in a conviction under state law. [Editor’s note: See pages 143-145 of César’s Crimmigration Law for more discussion of this phenomenon.]
Given that he faced removal even without having been convicted under state law, Mr. Meza argued that the Supreme Court of Utah retains the common-law authority, through their constitutional authority to issue extraordinary writs, to create an exception to the PCRA so that he is able to challenge his plea. Id. at *5. While the Supreme Court agreed with Mr. Meza that they do retain the authority to remedy ineffective assistance of counsel through extraordinary writs, they concluded that they do not need to do so because Mr. Meza already has an adequate remedy under existing law. Id.
The Supreme Court emphasized the fact that Mr. Meza has a Sixth Amendment right to effective assistance of counsel and that the counsel extends to the plea bargaining process. Id. (citing Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)). Further, the U.S. Constitution “ensures that no criminal defendant – whether a citizen or not – is left to the mercies of incompetent counsel.” Id. (citing Padilla v. Kentucky, 559 U.S. 356, 364 (2010)). And most significantly for Mr. Meza, the Supreme Court stressed that the seriousness of deportation consequences from a criminal plea requires counsel to inform her client as to whether his plea carries a risk of deportation. Id.
Mr. Meza’s existing remedy is a motion under Utah R. Civ. P. 60(b)(6) which allows a court to “set aside a final judgment for reasons such as mistake, newly discovered evidence, or fraud.” Id. Utah’s rules of civil procedure apply to aspects of criminal proceedings in which there is no other applicable statute or rule. Utah R. Civ. P. 81(e). Rule 60(b) contains a catch-all provision that permits a party to seek relief for “any other reason justifying relief from the operation of the judgment.” Utah R. Civ. P. 60(b)(6). It is precisely because Mr. Meza has this recourse, that the Supreme Court opted not to exercise their authority to fashion extraordinary writ relief for Mr. Meza on the basis of the ineffective assistance of counsel. Id. at *6. The Supreme Court dismissed Mr. Meza’s claim for relief under the PCRA and advised that he may seek relief from the consequences of his plea by filing the rule 60(b)(6) motion in the court where he originally entered his plea in abeyance. Id.
Sarah Flinn is a current 2L student at the University of Denver Sturm College of Law. She is currently completing an externship with the Denver District Attorney’s Office in the Family Violence Unit. Ultimately, she hopes to work in the field of immigration law helping Latina youth in the United States.