Category Archives: Alford Plea

No-Contact Order Held Invalid

Alford Plea, Bellingham Defense Attorney, felony, No Contact Order, Sentencing, Skagit County Criminal Defense, Tampering With a Witness, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Torres, the WA Court of Appeals decided a lower court improperly imposed a 5-year no contact order between the defendant and his son in a Witness Tampering prosecution.

BACKGROUND FACTS

Mario Torres is the father of M.T. (born 2003) and N.B. (born 2012). N.B. lived with his mother. However, on the morning of December 22, 2014, he was left in Mr. Torres’s care while N.B.’s mother went shopping. M.T. was also with Mr. Torres at the time. On December 23, N.B.’s mother and grandmother took him to receive medical care after he was found unresponsive. N.B. died a few days later. N.B.’s injuries suggested his death was a homicide.

Police Interview With M.T.

Part of law enforcement’s investigation into N.B. ‘s death involved a forensic interview of M.T. He originally told the interviewer that N.B. was responsive while in Mr. Torres’s care and ate some “Chicken McNuggets” during this time. But M.T. later told the interviewer this was not true. M.T. then said that he heard a loud bang while Mr. Torres was caring for N.B. and N.B. started loudly crying. Mr. Torres later told M.T. he had accidentally stepped on N.B. ‘s leg causing him to fall and strike the bedpost. M.T. never saw N.B. get up again after this. M.T. told the interviewer that both his parents approached him at his grandmother’s home earlier that day and told him to make up a story about N.B. eating Chicken McNuggets, and not mention that N.B. had bumped his head. Additionally, Mr. Torres allegedly told M.T. to “make up lies” about what happened.

Police interview with Mr. Torres.

The police talked to Mr. Torres the day after M.T’s interview. After being advised of his Miranda rights, Mr. Torres denied injuring N.B. but admitted N.B. fell and struck his head on a bedpost. Mr. Torres also admitted he did not want M.T. to talk to the police and had a private conversation with him to outline what M.T. would say. Mr. Torres claimed he told M.T. to tell the truth and say Mr. Torres did not cause the injuries to N.B. He did not offer any specific details on what M.T. was told.

Criminal Charges, Guilty Verdicts, Sentencing & the 5-Year No Contact Order.

The State charged Mr. Torres with one count of Witness Tampering under RCW 9A.72.120(l)(c). Although the case progressed toward trial, Mr. Torres ultimately pled guilty and entered an Alford plea on February 25. His case then proceeded directly to sentencing. During the sentencing colloquy, the court ultimately imposed a five-year no-contact order, prohibiting Mr. Torres from all contact with M.T. except by written mail. Mr. Torres also received a sentence of six months and $1,960 in court fines. Torres appealed.

For those who don’t know, a no contact order is also called a restraining order, and prohibits a person from being in physical or verbal contact with another person. The court must order the no contact agreement, and usually specifies how many feet, or yards, away the individuals must stay from one another. If broken the defendant may receive a fine, or jail time with a felony or misdemeanor charge.

COURT OF APPEALS’ DECISION AND REASONING.

The Court began with stating RCW 9.94A.505(9) authorizes a trial court to impose crime related prohibitions as sentencing conditions. A No-Contact Order is such a prohibition. The court further reasoned that conditions interfering with fundamental rights, such as the right to a parent-child relationship, must be “sensitively imposed” so they are “reasonably necessary to accomplish the essential needs of the State and public order.” A trial abuses its discretion if the trial court employs the wrong legal standard.

The Court further reasoned that here, at sentencing, the trial court imposed a five-year no-contact order, prohibiting almost all contact between Mr. Torres and his son. The Court reasoned that in so doing, the court failed to acknowledge Mr. Torres’s fundamental right to parent his child or explain why a five year prohibition on all personal contact was reasonably necessary to further the State’s interests. “This was error, even under the deferential abuse of discretion standard,” said the Court of Appeals. “While the trial court certainly can impose a no-contact order to advance the State’s fundamental interests in protecting children, it must do so in a nuanced manner that is sensitive to the changing needs and interests of the parent and child.”

“The State suggests we can infer the reasons for the court’s no-contact order from the record. We disagree. The record before us is scant. The trial judge did not explain why he decided to impose a no-contact order that was 10 times longer than what was requested by the State. We are unable to discern the court’s likely reasoning from the limited information presented. It is the trial court’s duty to balance the competing interests impacted by a no contact order.”

With that, the WA Court of Appeals remanded the case back to the trial court for further reconsideration – and instructions – on re-creating the no contact order.

“How to Create a No Contact Order.”

This portion of the Court opinion was very instructive to the lower court. For example, it was instructed that the trial court shall first address whether a no-contact order remains reasonably necessary in light of the State’s interests in protecting M.T. from harm. If it is, then the court shall endeavor to narrowly tailor the order, both in terms of scope and duration. When it comes to the order’s scope, the court shall consider less restrictive alternatives, such as supervised visitation, prior to restricting all personal contact between Mr. Torres and his child. In addition, the court’s order should recognize that “what is reasonably necessary to protect the State’s interests may change over time.” Accordingly, the court shall consider whether the scope of the no-contact order should change over time. The court shall also reconsider whether the ultimate length of the no-contact order remains appropriate. Finally, the trial court should keep in mind that a sentencing proceeding is not the ideal forum for addressing parenting issues.

My opinion? This was a great decision. I’m impressed that the Court of Appeals gave specific instructions on creating no contact orders in the future.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Deported After Conviction

Alford Plea, felony, Immigration, Ineffective Assistance, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Manajares, The WA Court of Appeals Division III upheld the defendant’s 2002 conviction because at the time it was unforeseeable that the plea would result in deportation.

In December 2002, defendant Jose Manajares entered an Alford plea to one count of Unlawful Imprisonment, a Class C Felony. Before accepting the plea, the court asked Mr. Manajares if he understood that his “plea of guilty to this count is grounds for deportation from the United States, … exclusion from admission to the United States and denial of naturalization,” and he answered “Yes.” The court accepted the plea and sentenced Mr. Manajares.

Shortly after he entered the plea, Mr. Manajares was removed from the United States by the United States Immigration and Naturalization Service.

Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion to vacate his Alford plea. He argued he received ineffective assistance of counsel because Manjares’s defense attorney failed to advise him that his conviction could result in deportation.

The Court reasoned that when determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.”

PADILLA V. KENTUCKY.

In Padilla, the United States Supreme Court recognized that immigration law can be complex,” and that “some members of the bar who represent clients facing criminal charges … may not be well versed in it.  Because “there will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Court announced the following standard for assessing a criminal defense lawyer’s duty:

“When the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, … the duty to give correct advice is equally clear.”

Therefore, the Court of Appeals reasoned whether Mr. Manajares’s ineffective assistance of counsel claim depended on whether truly clear adverse immigration consequences would follow from his 2002 plea that defense counsel failed to apprehend and explain.

IMMIGRATION & NATIONALITY ACT.

The Court also reviewed the Immigration and Nationality Act, “which holds that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude ( other than a purely political offense) … is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Here, the court reasoned it was unclear to both Mr. Manjares’s immigration attorney and his appellate attorney whether a conviction for unlawful imprisonment was an aggravated felony or a crime of moral turpitude which automatically triggers deportation.

Additionally, the court reasoned it is not automatically deficient performance for a lawyer to permit a client to enter an Alford plea. For all of these reasons, the Court decided there was ultimately no deficient performance on the part of defense counsel.

Mr. De Long’s review with Mr. Manajares of the general statutory deportation warning was therefore competent representation.

My opinion? In 2010, the U.S. Supreme Court’s Padilla v. Kentucky set the “bright line rule” that criminal defense attorneys must warn non-citizen clients of the risk of deportation if the defendant is considering a guilty plea. Employing Strickland v. Washington‘s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States, If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel.

Here, Padilla’s 2010 guidelines rules were not in effect because the defendant entered his plea in 2002. Therefore, defense counsel was no deficient in his performance.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.