IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA … · 2015. 8. 7. · (Supp. R- 52). Mr. Torroella testified that he is a licensed Florida attorney, that Ms. Vergara-Castaño

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

STATE OF FLORIDA,Appellee

v. CASE NO. 5D15-691

CLAUDIA VERGARA-CASTAÑO,Appellant,

/

ON APPEAL FROM THE CIRCUIT COURTOF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDATHE HONORABLE TIM R. SHEA, CIRCUIT JUDGE

INITIAL BRIEF OF THE APPELLANT

H. MANUEL HERNÁNDEZ, P.A.

H. MANUEL HERNÁNDEZFlorida Bar No. 0775843P.O. Box 916692Longwood, FL 32791Telephone: 407-682-5553FAX: 407-682-5543E-mail: [email protected]

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ii

TABLE OF AUTHORITIES

CASES

Cano v. State, 112 S.3d 648 (Fla. 4th DCA 2013). . . . . . . . . . . . . . . . . . . . 14, 21, 23

Castaño v. State, 106 So.3d 28 (Fla. 5th DCA 2011). . . . . . . . . . . . . . . . . . . 3, 10, 18

Castaño v. State, 119 So.3d 1208 (Fla. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Castaño v. State, 81 So.3d 413 (Fla. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006).. . . . . . . . . . . . . . . . . . . 16

Fla. Dep't of Transp. v. Juliano, 801 So.2d 101 (Fla.2001). . . . . . . . . 16, 17, 19, 20

Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).. . . . . . . . . . . . . . . . . . . . . . . . . 8

Florida Diversified Films, Inc. v. Simon Roofing and Sheet Metal, Corp., 118 So.3d 240 (3d DCA 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Greene v. Massey, 384 So.2d 24 (Fla.1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hernández v. State, 61 So.3d1144 (Fla. 3d DCA 2011). . . . . . . . . . . . . . . . . . . . . . 8

Ibarra v. Holder, 736 F.3d 903 (10th Cir 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jackson v. State, 64 So.3d 90 (Fla. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Lafler v. Cooper, U.S. , 132 S.Ct. 1376, 183 L.Ed.2d 398 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Martínez v. U.S. Attorney General, 413 Fed. Appx. 163 (11th Cir. 2011). . . . 22, 23

Matter of Soram, 25 I&N Dec. 503, 381-82 (BIA 2008). . . . . . . . . . . . . . . . . . . . 23

Missouri v. Frye, U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11

Phillip Morris USA, Inc. v. Douglas, 119 So.3d 419, 427 n.6 (Fla. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Spectrum Interiors, Inc. v. Exterior Walls, Inc. 65 So.3d 542, (Fla. 5th DCA 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-21

State v. Owen, 696 So.2d 715 (Fla.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Thornton v. State, 963 So.2d 804 (Fla. 3d DCA 2007). . . . . . . . . . . . . . . . . . . 17, 21

Trotter v. State, 690 So.2d 1234 (Fla.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATUTES

8 U.S.C. § 1227(a)(2)(E)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Fla. Stat. § 827.03(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULES

Fla. R. App. P. 9.030(a)(2)(A)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fla. R. App. P. 9.030(a)(2)(iv).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fla. R. Crim. P. 3.172(c)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

OTHER AUTHORITIES

U.S. Const. Amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

STATEMENT OF THE CASE AND FACTS

The Original Proceedings in the Circuit Court

On December 12, 2010, the Petitioner, Claudia Vergara-Castaño (hereinafter,

Ms. Vergara-Castaño), was charged in a one count information with neglect of a child,

in violation of Fla. Stat. § 827.03(3)(c) and § 827.03(3)(a).9. (R-14).1 The charges

resulted from an incident that occurred on September 3, 2008, when a 2 ½ year old

child, wondered away unnoticed from a day care center Ms. Vergara-Castaño was

running out of her home. (R-15-25). The child was found unharmed a short distance

away by a neighbor who called the police, who then arrested Ms. Vergara-Castaño.

(Id.).

In spite of a very weak case, and a total lack of any evidence of willfulness or

culpable negligence, on March 4, 2009, Ms. Vergara-Castaño entered a guilty plea to

the single charge in the information based on the advice of her privately retained trial

counsel. (Supp. R- 19-24). She was sentenced to 1 day in the Orange County Jail with

credit for one day served, three years of supervised probation, and court costs. (R-51;

Supp. R- 1-2).

1The Record in this appeal consists of three volumes titled “Record on Appeal(pages 1-214), Supplemental Record on Appeal 1 (pages 1-130), and Exhibits.References to the Record will be made as follows: R-page#; Supp. R-page # and StateExhibit 1(The Spanish Plea Form).

1

The Motion to Vacate Judgment and Sentenceand/or Petition for A Writ of Error Coram Nobis

A Motion to Vacate Judgment and Sentence and/or Petition for A Writ of Error

Coram Nobis (hereinafter “Motion to Vacate”) was filed by Ms. Vergara-Castaño

through new privately retained counsel on November 30, 2009. (R-26-27). The

Motion to Vacate raised nine grounds in support of Ms. Vergara-Castaño’s request to

set aside her plea and vacate her conviction and sentence. (Id.). Ground Four and

Ground Eight are the only grounds relevant to this appeal, and for the most part, to

Ms. Vergara-Castaño’s original appeal, and can be summarized as follows:

Ms. Vergara-Castaño is not a United States citizen, was in the process oftrying to obtain her permanent residency, and eventually become anaturalized United States citizen. Ms. Vergara-Castaño’s trial counselwas ineffective for failing to inform her that entry of the plea to thecharge of felony child neglect would subject her to mandatorydeportation. Instead her original trial counsel lead her to believe that allshe would have to do after her plea was to pay her court costs and reportto probation for a period of time, and that nothing further would happen.As a result of he trial counsel’s negligent advice, Ms. Vergara-Castañoentered an unknowing plea, and if Ms. Vergara-Castaño had known ofthe mandatory consequences her plea would have on her legal status inthe United States and subject her to mandatory deportation, Ms. Vergara-Castaño would not have agreed to enter a plea.

(R-28-30, Paragraphs 13-19 [Fourth Ground]; R-33, paragraph 27 [Eighth Ground]).

2

The First Hearing on the Motion to Vacate - December 11, 2009

The first hearing on Ms. Vergara-Castaño’s Motion to Vacate was held on

December 11, 2009. (R- 99; Supp. R- 10-98). The first hearing is reviewed in some

detail here only so that this Court can see that the evidence presented at the second

hearing on the Motion to Vacate after remand was essentially the same, with the same

preordained result, notwithstanding the decision of the Florida Supreme Court,

Castaño v. State, 119 So.3d 1208 (Fla. 2012)(Supp.R- 118-125)(App. 3-6), and the

decision of this Court on remand from the Florida Supreme Court, Castaño v. State,

106 So.3d 28 (Fla. 5th DCA 2011. (Supp. R-126-129) (App. 7-8).

At the hearing, Ms. Vergara-Castaño testified that prior to entering her plea, she

was unable to reach her trial counsel to discuss her case, that at her first meeting with

him she tried to tell him about possible witnesses who would testify in her defense,

including the parents of the alleged child victim who wondered away from her

daycare. (Supp. R-16-18, 32-37, 39-42). Ms. Vergara-Castaño went on to testify that

after her first meeting with her trial counsel she tried to call him “four or five times,”

and eventually just went to his office “two or three, four times” to try and meet with

him, but was unable to ever see him and only spoke to his secretary (Supp. R-33-34),

and that her attorney never sent her or discussed the evidence against her, possible

3

witnesses in her defense, taking depositions of the state’s witnesses, possible motions

to suppress evidence or other defense motions. (Supp. R- 34-35, 37, 39).

Eventually, Ms. Vergara-Castaño was told to be in court on March 4, 2009,

without being told the purpose of the hearing. (Supp. R- 18-19). Although she arrived

at the courtroom early, Ms. Vergara-Castaño testified that her attorney arrived late,

that she was first told about the planned plea hearing and shown the plea agreement

in court, “two or three minutes” before entering the courtroom (Supp. R- 19-20,

43,53), she was surprised when her attorney told her the reason for the hearing, and

that she had no idea what she was pleading to, what the terms of her plea agreement

were, or what the consequences of her plea were. (Supp. R- 20-21). Ms. Vergara-

Castaño went on to testify that when her trial counsel began discussing the terms of

the written plea agreement with her, she told him that she had not done anything, and

her attorney told her that “[i]t is all the same. . . [t]he child left the home.” (Supp. R-

22). According to Ms. Vergara-Castaño’s testimony, she objected to pleading to a

crime she did not believe she committed without looking at other possibilities, and her

attorney told her that she “shouldn’t worry,” and that the only thing she would have

to do was pay some money and “everything was going to be all right.” (Supp. R- 22-

23, 24). Ms. Vergara-Castaño also testified that her trial counsel never explained the

consequences of her plea agreement to her, either with regards to her immigration

4

status or her daycare license with the Florida Department of Children and Families

(DCF)(Supp. R-24-25, 26), and that although she was shown the written plea

agreement and signed it, her trial counsel did not explain it to her, because he was late

and they had to rush into court, she never had an opportunity to read it (Supp. R- 25-

26, 50, 53), and she did not understand either the terms of her plea or the collateral

consequences her plea on her immigration status and her DCF license. (Supp. R- 26-

27).

As a result of her plea, Ms. Vergara-Castaño testified that she was now subject

to deportation and that she lost her DCF license to run her daycare business, her main

source of income. (Supp. R- 26, 27, 28-29). Ms. Vergara-Castaño testified further,

and was adamant in her testimony, that she did not agree, and would never have

agreed to enter any plea agreement that would have affected her ability to stay in the

United States and her DCF license. (Supp. R- 31-32). She testified that she signed

the written plea agreement without knowing the consequences of her plea because of

the last minute rush occasioned by her attorney arriving late to the court hearing and

not fully explaining what the consequences of her plea were (Id), and telling her that

she shouldn’t worry and would only have to pay some money. (Supp. R- 22-23, 24).

5

The state then called Ms. Vergara-Castaño’s trial counsel, Mr. José Torroella.

(Supp. R- 52). Mr. Torroella testified that he is a licensed Florida attorney, that Ms.

Vergara-Castaño hired him at the beginning of January of 2009 to represent her in a

civil injunction hearing, and that Ms. Vergara-Castaño subsequently retained him for

her criminal case. (Supp. R- 61-62). According to Mr. Torroella’s testimony, he

purportedly spoke to Ms. Vergara-Castaño during the time they were supposedly

waiting in court for the injunction hearing, although he could not explain exactly what

they spoke about, the civil injunction hearing they were waiting for, or the criminal

case, and according to Mr. Torroella, he met with Ms. Vergara-Castaño a total of three

times (as opposed to the two times Ms. Vergara-Castaño testified to) to discuss her

criminal case, and he reviewed the police reports with her during one of those

supposed meetings. (Supp. R- 63-64). He also testified that he is fluent in the Spanish

language, and that he discussed the immigration consequences of a plea with Ms.

Vergara-Castaño. (Supp. R- 64-66).

Although Mr. Torroella testified that he reviewed the written plea agreement

with Ms. Vergara-Castaño, he admitted that he did not read the form to her, and failed

to testify about how much time he spent reviewing the plea agreement with Ms.

Vergara-Castaño, whether he discussed the plea with her prior to the day of the plea

hearing, and whether he allowed her to read the form on her own. (Supp. R- 68, 86).

6

Rather, he testified that he was confident, based on his 18 years of practicing law, that

Ms. Vergara-Castaño, who had never been in a criminal case before, understood the

lengthy plea form from his explanation, although he also admitted that other than

discussing the maximum sentence she could receive if she went to trial, he never

discussed the sentencing guidelines and her probable sentence under the guidelines

with her. (Supp. R- 68, 86, 91-92).

On cross-examination Mr. Torroella admitted that while he had in fact reviewed

the state’s discovery with Ms. Vergara-Castaño, he did not recall if he ever provided

her with a copy of the discovery, that he never took any depositions, contacted any

witnesses, or even considered filing a motion to suppress Ms. Vergara-Castaño’s

statement to the police. (Supp. R- 76-77, 80, 81). Mr. Torroella also admitted that

although “he could not recall,” Ms. Vergara-Castaño “may have” told him that the

mother of the purported victim child wanted to cooperate with the defense and did not

want to have Ms. Vergara-Castaño prosecuted, but he never spoke to the alleged

victim’s child’s mother, nor did he try to get a declination affidavit from her to give

to the state. (Supp. R- 83).

On May 10, 2010, the first trial court entered its written order denying Ms.

Vergara-Castaño’s Motion to Vacate (R-39-53), relying primarily on the statements

made by Ms. Vergara-Castaño during the plea colloquy. (R-41-42).

7

Ms. Vergara-Castaño’s First Appeal - To The Fifth District Court of Appeals -Vergara-Castaño I

In her first appeal, Ms. Vergara-Castaño argued, inter alia, that her trial counsel

had provided her ineffective assistance of counsel by not informing her that her plea

and conviction would result in certain deportation, relying on the United States

Supreme Court’s then recent decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.

1473, 176 L.Ed.2d 284 (2010). On June 17, 2011, this Court rejected the Ms.

Vergara-Castaño’s Padilla argument and affirmed the lower court’s denial of Ms.

Vergara-Castaño’s Motion to Vacate, See, Castaño v. State, 65 So. 3d 546 (Fla. 5th

DCA 2011)(Supp. R- 115-17)(App. 1-2) (Vergara-Castaño I). The Court relied on

and adopted the Fourth District Court of Appeal’s holding in Flores v. State, 57 So.3d

218 (Fla. 4th DCA 2010), and concluded that first, the general advisement of potential

immigration consequences required by Fla. R. Crim. P. 3.172(c)(8) and given to Ms.

Vergara-Castaño were enough to satisfy the requirements of Padilla, and second, that

Padilla should not be applied retroactively. Vergara-Castaño I, at 547-48. In so

holding, the Court recognized that its decision in Vergara-Castaño I was in direct

conflict with the Third District Court of Appeal’s then recent decision on the same

points of law in Hernández v. State, 61 So.3d1144 (Fla. 3d DCA 2011), which held

that when the immigration consequences of a defendant’s plea are “truly clear,” the

general Rule 3.172(c)(8) warnings would not be sufficient under Padilla. Hernández,

8

61So.3d at 1148. and certified the conflict between Vergara-Castaño I and Hernández

pursuant to Fla. R. App. P. 9.030(a)(2)(iv). See, Vergara-Castaño I at 548. The Court

also noted its agreement with the Third District Court of Appeal’s conclusion in

Hernández that the question of whether Padilla should be applied retroactively to

cases that were not on direct appeal when Padilla was decided was a question of great

public importance, and certified that question pursuant to Fla. R. App. P.

9.030(a)(2)(A)(v). Id.

Ms. Vergara-Castaño’s Second Appeal - To The Florida Supreme Court -Vergara-Castaño II

The Florida Supreme Court accepted jurisdiction, Castaño v. State, 81 So.3d

413 (Fla. 2012), and ultimately quashed this Court’s decision denying Ms. Vergara-

Castaño’s Motion to Vacate, Castaño v. State, 119 So.3d 1208 (Fla. 2012)(Supp. R-

118-125)(App. 3-5) (Vergara-Castaño II), holding that the U.S. Supreme Court’s

decision in Padilla v. Kentucky, supra, 559 U.S. 356, 130 S.Ct. 1473, applied to Ms.

Vergara-Castaño’s Motion to Vacate, and remanded her case to this Court “for further

proceedings.” Vergara-Castaño II. 119 So.3d at 1208.

9

Third Appeal on Remand - To The Fifth District Court of Appeals (Vergara-Castaño III)

On remand, this Court held that:

The offense committed by Castaño is an offense which clearly subjectsher to deportation. See 8 U.S.C. § 1227(a)(2)(E)(I) (“Any alien who atany time after admission is convicted of a crime of ... child neglect ... isdeportable.”); 8 U.S.C. § 1229b(b)(1) (providing that attorney generalcan cancel removal under certain circumstances, but not if alien had beenconvicted under 8 U.S.C. § 1227(a)(2)). Because the deportationconsequences were clear, we agree with Castaño that the standarddeportation warning she was given during the plea colloquy fails tosatisfy Padilla's requirement that she be given clear advice regardingthe deportation consequence. 130 S.Ct. at 1483. The deportationwarning during the plea colloquy was also insufficient to cure theprejudice arising from her counsel's failure to comply with therequirements of Padilla. Hernandez v. State, ––– So.3d –––– (Fla.2012);Oropesa v. State, 104 So.3d 1183 (Fla. 2d DCA 2012). Thus, we reverseand remand with instructions to reconsider Castaño's motion.

Castaño v. State, 106 So.3d 28, 28-29 (Fla. 5th DCA 2011)(Vergara-Castaño III)(App.

6-8)(emphasis added).

“Back to the Future”The Second Hearing on the Motion to Vacate After Remand - January 28, 2015

On January 28, 2015, a second hearing on Ms. Vergara-Castaño’s Motion to

Vacate was held. (R-99, 119-213). This second hearing was held over two years after

the Supreme Court quashed Vergara-Castaño I and remanded Ms. Vergara-Castaño’s

case to this Court “for further proceedings,” Vergara-Castaño II, 119 So.3d at 1208,

and just two weeks short of two full years after this Court’s decision on remand from

10

the Supreme Court. Vergara-Castaño III, 106 So.3d at 28. In that decision, this Court

held that the offense Vergara-Castaño entered her plea to did clearly subject her to

deportation, and that the deportation warning given during the plea colloquy was not

enough to cure the prejudice arising from her original trial counsel's failure to comply

with the requirements of Padilla that a defendant be given clear advice regarding

deportation consequences. Id. at 28-29.

This being the case, and this Court’s decision in Vergara-Castaño III being the

law of the case, at the beginning of the hearing Ms. Vergara-Castaño’s attorney

objected to holding the hearing. (R-129-31, 103). He argued that this Court’s decision

in Vergara-Castaño III addressed all the necessary issues raised by Ms. Vergara-

Castaño’s Padilla claim, that this Court’s decision in Vergara-Castaño III was the law

of the case, and as such, there was no need to hold another hearing to allow the state

another bite at the Padilla apple, essentially rehashing the same evidence already

presented in the first hearing on Vergara-Castaño’s Motion to vacate. Id. The Circuit

Court Judge overruled Ms. Vergara-Castaño’s attorney’s objection, concluding that

this Court remanded with instructions to reconsider, that this Court could have just

decided the Padilla claim without remanding, and although the Circuit Court Judge

acknowledged that he was “a little baffled,” “[t]hats what it [Vergara-Castaño III]

11

says to do, and that’s what I’m going to do. . . [w]e’re here to take testimony, and

we’re here to reconsider.” (R- 132).

. . . But here-- here it is. But for the fact that an entire food chain ofjudges who've never been trial judges, and never taken a plea, by theway, have made the determination that a plea must be taken in a certainway concerning deportation, we're here only on that issue. Because therewasn't any other decision. It would -- it wouldn't have been bouncedback here if it hadn't been. . . So even though they're saying, remand --. . . , really, we're just here on Padilla.

(R-139)

“It’s like Deja Vu All Over Again.” Yogi Berra

As at the first hearing, there were two witnesses presented, Ms. Vergara-

Castaño testified first again (R-135), and then her former attorney, Jose Torroella

testified for the state (R-132). Ms Vergara-Castaño again reviewed how she hired Mr.

Torroella, was unable to speak to him after she hired him even though she called his

office on numerous occasions and even went to his office to try and speak to him, all

to no avail. (R-135-137). Ms. Vergara-Castaño also testified again that she was never

shown or provided with a copy of the discovery in her case (R-138), and that

eventually she was told to go to court, and it was in the courthouse, just minutes

before she appeared before the judge, that her attorney first told her about the plea

agreement, showed her the written plea form, which she did not have time to read, and

did not understand, and that her attorney told her to sign the plea agreement and

12

nothing would happen to her, she would just have to make some payments to the

Court. (R- 141-44). According to Ms. Vergara-Castaño’s testimony at the second

hearing, her attorney did not explain the potential immigration consequences to her

before the court hearing, or in court, and everything happened so quickly in court, she

had no time to read the plea form, so the first time she heard anything about any

potential immigration consequences was in court, and she did understand what the

judge was saying. (R-146-47, 148, 149-50; State Exhibit 1). However, she pled

anyway based on her attorney’s advice. (R-150). Mr. Torroella then testified for the

state, ironically, corroborating much of Ms. Vergara-Castaño’s testimony. According

to Mr. Torroella, he only met with Ms. Vergara-Castaño three times before having her

go to court for the plea hearing, her main concern was that she not go to jail, and while

he claimed to have reviewed the discovery with Ms. Vergara-Castaño, he did not

recall if he provided her with a copy. (R-173-74, 182, 187-89). With regards to the

potential immigration consequences of a plea, Mr. Torroella testified that he told Ms.

Vergara-Cataño a felony conviction could cause her immigration problems, but that

he was not an immigration lawyer, and after first testifying that he generally does not

refer his clients to any particular immigration attorney, he change his testimony and

claimed to have referred her to a former immigration judge to get immigration advice.

(R-177, 181, 199). Significantly, Mr. Torroella corroborated Ms. Vergara-Castaño’s

13

testimony regarding the last minute discussions about the plea agreement in the hall

outside the courtroom minutes before going before the judge to enter the plea. (R-

192-93, 194-95).

On February 3, 2015, the Circuit Court denied Ms. Vergara-Castaño’s Motion

to Vacate (R- 101-06). In doing so the Circuit Court ignored the law of the case

doctrine, which bound the Circuit Court to follow the findings and holdings of the

Florida Supreme Court and this Court, improperly relied on a legal decision, Cano v.

State, 112 S.3d 648 (Fla. 4th DCA 2013), that was not issued until after the Florida

Supreme Court and this Court entered their respective decisions over two years earlier,

and misapplied and misinterpreted both the Cano decision and federal case law

regarding the deportation consequences of a conviction for the crime Ms. Vergara-

Castaño’s attorney allowed her to enter a plead of guilty to, child neglect. (R-14).

14

SUMMARY OF THE ARGUMENT

The “law of the case doctrine” mandates that all questions of law actually

decided on appeal must govern the case in the same appellate court and the trial court,

through all subsequent stages of the proceedings. The Circuit Court trial judge

violated the law of the case doctrine, ignored the facts, and ignored the applicable law

regarding criminal defense counsel’s obligations during plea bargaining and plea

proceedings, and improperly and illegally relitigated and redecided all that had already

been litigated and decided. This Court must now reverse and remand with clear

instruction that the trial judge must set aside Ms. Vergara-Castaño’s plea, conviction

and sentence, and allow her to plead anew with new counsel.

15

ARGUMENT

THE CIRCUIT COURT IGNORED THE LAW OF THE CASE DOCTRINE,WHICH BOUND THE CIRCUIT COURT TO FOLLOW THE PRIORHOLDINGS AND FINDINGS OF THE FLORIDA SUPREME COURT INVERGARA-CASTAÑO II AND THIS COURT IN VERGARA-CASTAÑO III,IMPROPERLY RELIED ON A STATE LEGAL DECISION THAT WAS NOTISSUED UNTIL AFTER THE FLORIDA SUPREME COURT AND THISCOURT ENTERED THEIR RESPECTIVE DECISIONS OVER TWO YEARSEARLIER, AND MISAPPLIED AND MISINTERPRETED BOTH THE STATEDECISION, AND FEDERAL CASE LAW REGARDING THE DEPORTATIONCONSEQUENCES OF A CONVICTION FOR THE CRIME MS. VERGARA-CASTAÑO’S ATTORNEY ALLOWED HER TO PLEAD OF GUILTY TO

Standard on Review - De Novo

The proper application of a decision of the United States Supreme, the Florida

Supreme Court, and this Court, under the law of the case doctrine is a pure question

of law, and as such is subject to de novo review on appeal. Phillip Morris USA, Inc.

v. Douglas, 119 So.3d 419, 427 n.6 (Fla. 2013); Engle v. Liggett Group, Inc., 945

So.2d 1246, 1259 (Fla. 2006); Jackson v. State, 64 So.3d 90, 92 (Fla. 2011).

The Law of the Case Doctrine

The “law of the case doctrine” mandates that all questions of law actually

decided on appeal must govern the case in the same appellate court and the trial court,

through all subsequent stages of the proceedings. See Fla. Dep't of Transp. v. Juliano,

801 So.2d 101, 105 (Fla.2001); Spectrum Interiors, Inc. v. Exterior Walls, Inc. 65

So.3d 542, 544 (Fla. 5th DCA 2011). The law of the case doctrine may also foreclose

16

subsequent consideration of issues implicitly addressed or necessarily considered by

the appellate court's decision. Id.

Under the law of the case doctrine, a trial court lacks the discretion to change

the law of the case and is bound to follow prior rulings of the appellate court as long

as the facts on which such decision are based continue to be the facts of the case. Id.;

Thornton v. State, 963 So.2d 804, 809 (Fla. 3d DCA 2007). “As such, these prior

rulings are no longer open for discussion or consideration in subsequent proceedings

in the case.” Thornton, citing, Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). There

are exceptions to the law of the case doctrine. For example, a trial court is not bound

to follow the prior ruling if the facts upon which the prior ruling was made are no

longer the facts of the case, and an appellate court may reconsider and correct an

erroneous ruling that has become the law of the case where a manifest injustice would

result. Juliano, 801 So.2d at 106; Spectrum Interiors, Inc. 65 So.3d at 544 n.1. Also,

intervening legislative action, or an intervening decision by a higher court that

changes the relevant law may bar application of the law of the case doctrine. Spectum

Interiors, Inc., 65 So.3d at 544 n.1, citing, State v. Owen, 696 So.2d 715 (Fla.1997);

Trotter v. State, 690 So.2d 1234 (Fla.1996).

Here, it is clear, as to be beyond any serious per adventure, that the law of the

case doctrine applied, none of the limited exceptions to this well established legal

17

doctrine of judicial estoppel applied, and that the Circuit Court trial judge who

handled Ms. Vergara-Castaño’s Motion to Vacate on remand was not free to ignore

the prior rulings of this Court and the Florida Supreme Court. Spectrum Interiors, Inc.

Specifically, the Circuit Court trial judge did not have the authority or discretion to

ignore this Court’s decision on remand from the Florida Supreme Court that “[t]he

offense committed by Castaño is an offense which clearly subjects her to

deportation” Vergara-Castaño III, 106 So.3d at 28 (emphasis added), and that “[t]he

deportation warning during the plea colloquy was . . . insufficient to cure the

prejudice arising from her counsel's failure to comply with the requirements of

Padilla” that is “Padilla’s requirement that [a defendant] be given clear advice

regarding deportation consequences.” Vergara-Castaño III, 106 So.3d at 28-29. Put

another way, the case was remanded to the Circuit Court after this Court found,

concluded, decided, ruled, and held, first, that Ms. Vergara-Castaño’s was facing

mandatory deportation as a result of her conviction for the charges in this case;

second, that the standard immigration warnings given pursuant to Fla. R. Crim. P.

3.172(c)(8) were generally insufficient to warn a non-citizen defendant of the

consequences of his or her plea in cases such as Vergara-Castaño’s that involved

charges that required mandatory deportation; and third, that those same Rule

3.172(c)(8) warnings were specifically also insufficient in Vergara-Castaño’s case to

18

avoid or undue the damage done as a result of properly advise her about the potential

immigration consequences of her plea. Id. That was the law of the case, binding both

any panel of judges on this Court, and any Circuit Court trial judge on remand

reconsidering Vergara-Castaño’s Motion to Vacate. Juliano, 801 So.2d at 105;

Spectrum Interiors, Inc., 65 So.3d at 544. However, this Court’s decision in Vergara-

Castaño III, the Florida Supreme Court’s ruling in Vergara-Castaño II, and the law

of the case set out in those binding appellate opinions notwithstanding, the Circuit

Court trial judge studiously ignored the law of the case on remand.

Specifically, the facts of the case as they relate to Ms. Vergara-Castaño’s

Motion to Vacate are the same. The same two witnesses, Ms. Vergara-Castaño and

her original defense counsel, Mr. Torroella, were the only two witnesses to testify at

both hearings, and their testimony was essentially the same at both hearings, right

down to the objections and arguments by counsel. Juliano; Spectrum Interiors, Inc.

See and compare, Testimony of Ms. Vergara-Castaño at both hearings(R-16-47; Supp.

R- 14-59) and Testimony of Original Defense Counsel Jose Torroella at both hearings.

(R-166-201; Supp. R- 60- 93). To the extent there may have been anything different

presented, it was insignificant and implicitly and, or necessarily considered by this

Court in Castano III. See, Spectrum Interiors, Inc. v. Exterior Walls, Inc. 65 So.3d

542, 544 (Fla. 5th DCA 2011)(The law of the case doctrine may also foreclose

19

subsequent consideration of issues implicitly addressed or necessarily considered by

the appellate court's decision).

Nor is there any erroneous ruling that has become the law of the case requiring

appellate action by this Court to avoid a manifest injustice, Juliano, 801 So.2d at 106;

Spectrum Interiors, Inc. 65 So.3d at 544 n.1, nor any intervening legislative action,

nor an intervening decision by a higher court that changes the relevant law mitigating

against application of the law of the case doctrine. Spectum Interiors, Inc.65 So.3d at

544 n.1. In fact, with regards to the law, the contrary is true. The United States

Supreme Court has subsequently raised the bar significantly, or at least made clear

how high the bar is set, when it comes to criminal defense counsel’s responsibilities

with regards to plea bargaining, plea agreements, and plea proceedings. See e.g.,

Lafler v. Cooper, U.S. , 132 S.Ct. 1376, 1384, 183 L.Ed.2d 398 (2012)(“The

constitutional guarantee of effective assistance of counsel applies to pretrial critical

stages [such as plea bargaining and plea proceedings] that are part of the whole course

of a criminal proceeding, a proceeding in which defendants cannot be presumed to

make critical decisions without counsel's advice.”); Missouri v. Frye, U.S. ,

132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012)(“The reality is that plea bargains have

become so central to the administration of the criminal justice system that defense

counsel have responsibilities in the plea bargain process, responsibilities that must be

20

met to render the adequate assistance of counsel that the Sixth Amendment requires

in the criminal process at critical stages.’). Put bluntly, the days of criminal defense

counsel arriving at the courthouse at the eleventh hour, with a plea offer and a multi-

page single spaced written plea agreement in hand, to be presented to the client for the

first time, just mere moments before appearing before the court to enter the plea, as

happened here, are over, if they ever existed at all. Lafler; Frye; Padilla. Good

riddance. As such, this Court’s decision in Castano III was not only correct, it was

prescient, and it is still the law.

As for the Circuit Court trial judge’s reliance on Cano v. State, 112 S.3d 648

(Fla. 4th DCA 2013). See Order Denying Motion to Vacate (R-104-05), little need be

said. Cano is a legal decision that was not issued until after the Florida Supreme

Court and this Court entered their respective decisions here, over two years before the

trial judge ignored the law of the case doctrine, held the unnecessary and improper

second hearing, and relitigated the same issues that the Florida Supreme Court and

this Court had already decided. Cano does not apply to this case on remand. Spectum

Interiors, Inc., 65 So.3d at 544 (Under the law of the case doctrine, a trial court lacks

the discretion to change the law of the case and is bound to follow prior rulings of the

appellate court). Thornton v. State, 963 So.2d at 809 (Under law of the case doctrine,

prior rulings are no longer open for discussion or consideration in subsequent

21

proceedings in the case); see also and compare, Florida Diversified Films, Inc. v.

Simon Roofing and Sheet Metal, Corp., 118 So.3d 240, 242 (3d DCA 2013)(Where

successive appeals are taken in the same case the doctrine of the law of the case

applies and “requires that questions of law actually decided on appeal must govern the

case in the same court and the trial court, through all subsequent stages of the

proceedings.”)(citations omitted).

The same is true of the trial judges erroneous legal findings about whether Ms.

Vergara-Castaño was subject to certain deportation. See Order Denying Motion to

Vacate (R-105)(“. . . Ms. Vergara entered a plea to neglect of a child, which is a

deportable. offense but not an “aggravated felony” that would subject her to automatic

deportation.”)(citations omitted). Again, this issue was already decided by this Court

in Vergara-Castaño III, 106 So.3d at 28 (“The offense committed by Vergara-Castaño

is an offense which clearly subjects her to deportation”). See also and compare

generally, 8 U.S.C. § 1227(a)(2)(E)(I)(“Any alien who at any time after admission is

convicted of a crime of . . . child neglect, or child abandonment is

deportable.”)(emphasis added); see also, Martínez v. U.S. Attorney General, 413 Fed.

Appx. 163, 164 (11th Cir. 2011)(Eleventh Circuit United States Court of Appeals

reviewing deportation in case involving alien with an identical conviction under same

Florida child neglect statute Ms. Vergara-Castaño pled guilty to on the advice of her

22

trial counsel, finding that an alien convicted of felony child neglect under Fla. Stat.

§ 827.03(3)(c) is not eligible for cancellation of removal pursuant to 8 U.S.C. §

1227(a)(2)(E)(i), and thus subject to certain deportation); Matter of Soram, 25 I&N

Dec. 503, 381-82 (BIA 2008)(Finding that “child neglect” is included in the list of

child abuse offenses that subject aliens who have been convicted of committing to

deportation under 8 U.S.C. §1227(a)(2)(E)(i) and finding alien appellant convicted of

child abuse is subject to mandatory deportation).

Ibarra v. Holder, 736 F.3d 903, 915-16, 918 (10th Cir 2013), the decision cited

by the Circuit Court trial judge in support of the erroneous conclusion that Ms.

Vergara-Castaño was not subject to mandatory deportation as a result of her

convictionin this case, see Order Denying Motion to Vacate (R-105 n.1), is inapposite.

First, like Cano, Ibarra was decided after the Florida Supreme Court and this Court

issued the decisions in Vergara-Castaño II and Vergara-Castaño III. second, Ibarra

is a Tenth Circuit decision and therefore is arguably trumped by the Martinez decision

of the Eleventh Circuit Court of Appeals which has jurisdiction over Florida, and is

still the law applicable to Florida cases. Finally, and more importantly, third, the very

holding in Ibarra, reversing a finding of mandatory deportation in a child neglect case

based on the underlying facts, Ibarra, at 916-18, confirms the fact that when Ms.

Vergara-Castaño entered her plea, as was the case with the defendant in Ibarra, a

23

conviction for child neglect subjected the pleading immigrant-defendant to mandatory

deportation.

In fine, the Circuit Court trial judge violated the law of the case doctrine,

ignored the facts, and ignored the applicable law regarding criminal defense counsel’s

obligations during plea bargaining and plea proceedings, and improperly relitigated

and redecided all that had already been litigated and decided by superior appellate

court’s previously. This Court must now reverse and remand with clear instructions

that the trial judge must set aside Ms. Vergara-Castaño’s plea, conviction and

sentence, and allow her to plead anew with new counsel.

CONCLUSION

CLAUDIA VERGARA-CASTAÑO respectfully requests that this Court

reverse the Circuit Court’s order denying the Motion to Vacate, and remand with clear

and specific instructions that Ms. Vergara-Castaño’s conviction and sentence be set

aside and that Ms. Vergara-Castaño be allowed to withdraw her guilty plea, and plead

anew with new counsel.

24

RESPECTFULLY SUBMITTED, this August 7, 2015


/s/ H. Manuel HernándezH. MANUEL HERNÁNDEZFlorida Bar No. 0775843P.O. Box 916692Longwood, FL 32791Telephone: 407-682-5553Fax: 407-682-5543e-mail: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on this August 7, 2015, a copy of this Brief of Appellant

has been furnished by mail and e-mail to, Assistant Attorney General Bonnie Parrish,

Department of Legal Affairs, Office of the Attorney General, 444 Sea Breeze

Boulevard, 5th Floor, Daytona Beach, FL 32118.

/s/ H. Manuel HernándezH. MANUEL HERNÁNDEZ

CERTIFICATE OF COMPLIANCE

This is to certify that the undersigned has complied with Fla. R. App. P.

9.210(a)(2), including the font and margin requirements. The size and style of the type

used in this brief is proportionally spaced 14 point Times New Roman.

/s/ H. Manuel HernándezH. MANUEL HERNÁNDEZ

25

APPENDIX

Castaño v. State, 65 So. 3d 546 (Fla. 5th DCA 2011) (Vergara-Castaño I).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1-3

Castaño v. State, 119 So.3d 1208 (Fla. 2012) (Vergara-Castaño II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 3-5

Castaño v. State, 106 So.3d 28, 28-29 (Fla. 5th DCA 2011) (Vergara-Castaño III). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 6-8

26

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

STATE OF FLORIDA,Appellee

v. CASE NO. 5D15-691

CLAUDIA VERGARA-CASTAÑO,Appellant,

/

ON APPEAL FROM THE CIRCUIT COURTOF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDATHE HONORABLE TIM R. SHEA, CIRCUIT JUDGE

APPENDIX


H. MANUEL HERNÁNDEZFlorida Bar No. 0775843P.O. Box 916692Longwood, FL 32791Telephone: 407-682-5553FAX: 407-682-5543E-mail: [email protected]

TABLE OF CONTENTS

Castaño v. State, 65 So. 3d 546 (Fla. 5th DCA 2011) (Vergara-Castaño I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1-3

Castaño v. State, 119 So.3d 1208 (Fla. 2012) (Vergara-Castaño II). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 3-5

Castaño v. State, 106 So.3d 28, 28-29 (Fla. 5th DCA 2011) (Vergara-Castaño III). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 6-8

-ii-

Castano v. State, 65 So.3d 546 (2011)

36 Fla. L. Weekly D1285

65 So.3d 546District Court of Appeal of Florida,

Fifth District.

Claudia Vergara CASTANO, Appellant,v.

STATE of Florida, Appellee.No. 5D10–2032. | June 17, 2011. | Rehearing Denied

July 19, 2011.

SynopsisBackground: Defendant filed postconviction motion allegingineffective assistance of counsel. The Circuit Court, OrangeCounty, Jenifer Davis, J., denied motion. Defendant appealed.

Holdings: The District Court of Appeal, Jacobus, J., held that:

[1] any failure of counsel to inform noncitizen defendant ofthe immigration consequences of plea was cured by trialcourt's deportation warning at plea hearing, and

[2] United States Supreme Court decision in Padilla v.Kentucky should not be applied retroactively. Affirmed; question certified; conflict certified.

Attorneys and Law Firms

*547 H. Manuel Hernandez of H. Manuel Hernandez, P.A.,Longwood, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and BonnieJean Parrish, Assistant Attorney General, Daytona Beach, forAppellee.

Opinion

JACOBUS, J.

The appellant, Claudia Vergara Castano, timely appeals thedenial of her rule 3.850 motion1 alleging ineffective assistanceof counsel. Although she raises several points on appeal, onlyone merits discussion. That is, Castano contends her lawyer

was ineffective for failing to apprise her of the immigrationconsequences of her plea.

[1] Castano, who owned and operated a day care center out ofher home, was charged with child neglect, a third-degreefelony, when a child under her care was found wandering inher neighborhood. Castano was represented by counsel andultimately entered a plea to the charge of child neglect.According to her attorney, her main concern was avoiding ajail sentence. Her attorney also stated that he and Castanodiscussed the immigration consequences of her plea. Becauseher attorney was unsure whether she could be deported as aresult of pleading to the charge, he suggested Castano consultwith an immigration attorney. At the time of her plea, the trialjudge informed Castano that “if you're not a U.S. citizen youcan be deported as a result of this plea.” Castano indicatedshe understood, and answered “Yes.”

In oral argument, Castano's attorney argued that a plea tochild neglect may be a crime which requires mandatorydeportation. Thus, Castano contends that in light of Padilla v.Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284(2010), her attorney was obligated to advise her thatmandatory deportation could be a consequence of her plea.

[2] This court has previously aligned itself with the FourthDistrict Court of *548 Appeal in Flores v. State, 57 So.3d218 (Fla. 4th DCA 2010), which held that any prejudicearising from counsel's misadvice regarding the immigrationconsequences of a plea is cured when the trial court gives thedeportation warning in Florida Rule of Criminal Procedure3.172(c)(8) during the plea colloquy. The instant warninggiven by the trial judge is sufficient to cure any inadequateadvice given by Castano's attorney. We recognize that thisdirectly conflicts with Hernandez v. State, 61 So.3d 1144(Fla. 3d DCA 2011).

[3] Another aspect of this case is that Castano entered herplea on March 4, 2009, and Padilla was decided March 31,2010. We have previously held that Padilla should not beapplied retroactively. See State v. Shaikh, 65 So.3d 539 (Fla.5th DCA 2011). We agree with the Third District Court ofAppeal that the question whether Padilla should be appliedretroactively is one of great public importance and we certifyto the Florida Supreme Court that question pursuant toFlorida Rule of Appellate Procedure 9.030(a)(2)(A)(v). Wecertify conflict with the Third District Court of Appeal inHernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011),

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

App. 1



under Florida Rule of Appellate Procedure9.030(a)(2)(A)(iv). Consistent with our holding in Chin v.State, 51 So.3d 472 (Fla. 5th DCA 2010), we affirm.

AFFIRMED, QUESTION CERTIFIED; CONFLICTCERTIFIED.

MONACO, C.J. and LAWSON, J., concur.

All Citations

65 So.3d 546, 36 Fla. L. Weekly D1285

Footnotes

1 Fla. R.Crim. P. 3.850.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.


App. 2


37 Fla. L. Weekly Supp. 740

119 So.3d 1208Supreme Court of Florida.

Claudia Vergara CASTANO, Petitioner,v.

STATE of Florida, Respondent.No. SC11–1571. | Nov. 21, 2012.

SynopsisBackground: Movant sought postconviction relief, allegingineffective assistance of counsel. The Circuit Court, OrangeCounty, Jenifer Davis, J., denied motion. Movant appealed.The District Court of Appeal, 65 So.3d 546, affirmed andcertified question.

Holding: The Supreme Court held that United States SupremeCourt's Padilla decision applied to movant's postconvictionrelief proceeding. Quashed and remanded.

Pariente, J., filed concurring opinion, in which Quince andPerry, JJ., concurred.

West Headnotes (1)

[1] CourtsIn general; retroactive or prospective

operation

United States Supreme Court's Padilla decision,which held that defense counsel providedineffective assistance when counsel failed toadvise client of mandatory deportationconsequences for pleading guilty and which didnot apply retroactively, applied to movant'spostconviction relief proceeding, whereproceeding was pending when United StatesSupreme Court issued decision. U.S.C.A.Const.Amend. 6.

7 Cases that cite this headnote


*1208 H. Manuel Hernandez of H. Manuel Hernandez, P.A.,Longwood, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; andKristen Lynn Davenport and Wesley Harold Heidt, AssistantAttorneys General, Daytona Beach, FL, for Respondent.

Rebecca A. Sharpless, University of Miami School of Law,Immigration Clinic, Coral Gables, FL, for Amicus Curiae,Lawyers Association American Immigration.

Opinion

PER CURIAM.

In Castano v. State, 65 So.3d 546 (Fla. 5th DCA 2011), theFifth District Court of Appeal affirmed the denial of ClaudiaVergara Castano's postconviction motion. We havejurisdiction. See art. V, § 3(b)(4), Fla. Const. In this timelyfiled initial postconviction motion, Castano raised the sameclaim raised in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.1473, 176 L.Ed.2d 284 (2010), which held that defensecounsel was deficient for failing to advise his client ofmandatory deportation consequences for pleading guilty.Castano's postconviction proceeding was pending when theUnited States Supreme Court issued Padilla. Therefore,although we held that Padilla does not apply retroactively inHernandez v. State, ––– So.3d –––– (Fla.2012), Padilla doesapply to Castano's pending case. On that basis, we quash theFifth District's decision and remand for further proceedings.


App. 3



It is so ordered.

POLSTON, C.J., and LEWIS, QUINCE, CANADY,LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion, in which QUINCEand PERRY, JJ., concur.

PARIENTE, J., concurring.

I concur with the majority that Padilla v. Kentucky, 559 U.S.356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is notretroactive, but does apply to this case. I write to explain why.Here, Castano timely filed *1209 an initial postconvictionmotion months after her plea, raising the same claim as raisedin Padilla. The United States Supreme Court then issued itsdecision in Padilla while Castano's postconviction motion wasstill pending in the trial court. This is therefore not a casewhere the defendant waited for years after the conviction andinitial postconviction motion were final to bring a Padillaclaim. Specifically, this case stands in contrast to Hernandezv. State, ––– So.3d –––– (Fla.2012), where the defendantwaited nine years after his 2001 plea to move forpostconviction relief. Fundamental fairness demands thatCastano receive the benefit of Padilla.

The underlying facts of this case are as follows. Castano hasstated that although she was not a United States citizen, shewas lawfully residing in this country and was in the process oftrying to obtain her permanent residency. She also has statedthat she intended to ultimately apply for United Statescitizenship, and her youngest child was an American citizen.At the time of the criminal charges, Castano owned andoperated a day care center out of her home. She was chargedwith child neglect, a third-degree felony, when a child underher care was found wandering in her neighborhood. SeeCastano v. State, 65 So.3d 546, 547 (Fla. 5th DCA 2011). Thechild was found unharmed a short distance away by a neighborwho called the police. Castano entered her plea on March 4,2009, and was sentenced to one day in jail, with credit for oneday served, three years of supervised probation, and courtcosts. In November 2009, only eight months after the plea,Castano filed a postconviction motion alleging, among othergrounds for relief, that her counsel had failed to advise her thather plea would subject her to mandatory deportation.

There was dispute about the specific advice Castano's defensecounsel gave her regarding the immigration consequences ofher plea. According to her defense attorney, he had toldCastano she needed to consult with an immigration attorney.On the other hand, Castano testified that she did not know shewould be entering a plea until just minutes before entering thecourtroom. She stated that her counsel told her that there wasno alternative because she “would be found guilty anyway.”She further testified that counsel told her that the plea wouldrequire only a payment from her and that “everything wasgoing to be all right.” She testified, however, that as a result ofher plea, she was now subject to deportation and has lost thelicense to run her day care business, her main source ofincome.

At the time of the evidentiary hearing in December 2009, thelaw in Florida was governed by State v. Ginebra, 511 So.2d960, 962 (Fla.1987), which held “that counsel's failure toadvise his client of the collateral consequence of deportationdoes not constitute ineffective assistance of counsel.”However, before the trial court entered an order denying reliefin this case, the United States Supreme Court issued itsopinion in Padilla, a postconviction case involving a similarclaim of ineffective assistance of counsel for failure to adviseof the deportation consequences of a plea. The Supreme Courtheld that Padilla's defense counsel was deficient under the firstprong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984), for failing to advise Padilla thata guilty plea would subject him to automatic deportation.Padilla, 130 S.Ct. at 1478.

In this case, the postconviction court denied Castano's motionby finding that the record refuted her claims of an involuntaryplea, attaching a transcript of the *1210 2009 plea colloquy.The postconviction court did not make any findingsconcerning whether counsel had advised Castano of a risk ofdeportation or had referred her to an immigration attorney.

On appeal to the Fifth District, Castano advanced theargument that, under Padilla, her attorney “was ineffective forfailing to apprise her of the immigration consequences of herplea.” Castano, 65 So.3d at 547. The Fifth District affirmedthe denial of relief, holding that the plea colloquy cured anyprejudice and that Padilla was not retroactive. Id. at 548.

This Court in Hernandez, ––– So.3d –––– (Fla.2012), heldthat Hernandez's counsel was deficient for failing to advisehim that his plea subjected him to presumptively mandatorydeportation, but that Padilla did not apply retroactively to his


App. 4



case. This Court also rejected the argument that the pleacolloquy cured any claim of prejudice arising out of deficientadvice regarding the plea consequences. Further, in light ofPadilla, this Court receded from Ginebra, the controlling caselaw at the time of Castano's plea. See Hernandez v. State, –––So.3d at –––– n. 5.

I agreed in Hernandez that Padilla should not be appliedretroactively to cases where initial postconviction proceedingswere final before Padilla was decided. Here, however,Castano timely raised her claim of ineffective assistance ofcounsel and sought to withdraw her plea only eight monthsafter the plea was entered. The facts of this case stand in starkcontrast to the facts of Hernandez, where Hernandez waiteduntil 2010 to assert ineffective assistance of counsel withrespect to his 2001 plea, filing a postconviction motion onlyafter Padilla was decided.

Moreover, this case is distinguishable from those cases inwhich we have restricted the benefit of new law to “pipeline”cases—that is, cases in which an appellate court mandate hasnot yet issued on direct appeal. Those cases typically involvednew law on issues that would be raised during directappeal—not postconviction. See Hughes v. State, 901 So.2d837, 838 (Fla.2005)(sentencing issue—application ofApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147L.Ed.2d 435 (2000), which held that “[o]ther than the fact ofa prior conviction, any fact that increases the penalty for acrime beyond the prescribed statutory maximum must besubmitted to a jury and proved beyond a reasonable doubt”);Johnson v. State, 904 So.2d 400, 405, 407(Fla.2005)(sentencing issue—application of “Ring v. Arizona,536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), whichheld that a jury, not a judge, must find every fact upon whicheligibility for the death penalty depends”); Smith v. State, 598So.2d 1063, 1064 (Fla.1992)(sentencing issue—“when anappellate court reverses a departure sentence because therewere no written reasons, the court must remand forresentencing with no possibility of departure from theguidelines”).

In contrast to the above “pipeline” cases, Padilla created newlaw that would apply to a claim raised in postconviction, noton direct appeal. Given the procedural posture of thiscase—where the defendant timely raised the samepostconviction claim as the defendant in Padilla and theresolution of her claim was still pending at the time Padillawas decided—it is in effect a “pipeline” case for purposes ofwhether Padilla applies. Cf. Barthel v. State, 882 So.2d 1054,1055 (Fla. 2d DCA 2004)(applying this Court's decision in

Nelson v. State, 875 So.2d 579 (Fla.2004)—which establishednew law regarding the requirements for an ineffectiveassistance of counsel claim for failing to call a witness—to theappeal from the denial of a postconviction motion, because the“appeal was in the ‘pipeline’ at the time Nelson *1211 becamefinal,” and therefore the defendant “is entitled to the benefit ofthe controlling law in Nelson in effect at the time of appeal”).

In sum, Castano was in the exact same position as Padilla,having filed a postconviction motion claiming that counselwas ineffective for failing to advise of the deportationconsequences of a plea. Unlike the defendant in Hernandez,this is not a case where the defendant waited years after theconviction was final to bring a Padilla claim. Rather, Castanotimely filed a postconviction motion just months before theUnited States Supreme Court's decision in Padilla, and theresolution of Castano's claim was still pending when Padillawas decided. Under the facts of this case, it would beinequitable and illogical to hold that only one of two similarlysituated defendants—Padilla and not Castano—should receivethe benefit of the United States Supreme Court's decision.Accordingly, I concur with the majority opinion.

QUINCE and PERRY, JJ., concur.

All Citations

119 So.3d 1208, 37 Fla. L. Weekly Supp. 740


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App. 6



106 So.3d 28 (Mem)District Court of Appeal of Florida,

Fifth District.

Claudia Vergara CASTANO, Appellant,v.

STATE of Florida, Appellee.No. 5D10–2032. | Jan. 25, 2013. | Rehearing Denied

Jul. 19, 2011.

3.850 Appeal from the Circuit Court for Orange County,Jenifer Davis, Judge.


H. Manuel Hernandez of H. Manuel Hernandez, P.A.,Longwood, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and BonnieJean Parrish, Assistant Attorney General, Daytona Beach, forAppellee.

Prior report: ––– So.3d ––––.

ON REMAND

JACOBUS, J.

We reconsider this matter on remand from the FloridaSupreme Court following its decision in Castano v. State, –––So.3d –––– (Fla.2012), which quashed our decision inCastano v. State, 65 So.3d 546 (Fla. 5th DCA 2011). TheFlorida Supreme Court has now confirmed that Padilla v.Kentucky, 559 U.S. 356, ––––, 130 S.Ct. 1473, 1483, 176L.Ed.2d 284 (2010), is not retroactive, but has nonethelessheld that this is a case to which Padilla applies.

The offense committed by Castano is an offense which clearlysubjects her to deportation. See 8 U.S.C. § 1227(a)(2)(E)(i)

(“Any alien who at any time after admission is convicted ofa crime of ... child neglect ... is deportable.”); 8 U.S.C. §1229b(b)(1) (providing that attorney general can cancelremoval under certain circumstances, but not if alien had been*29 convicted under 8 U.S.C. § 1227(a)(2)). Because thedeportation consequences were clear, we agree with Castanothat the standard deportation warning she was given duringthe plea colloquy fails to satisfy Padilla's requirement that shebe given clear advice regarding the deportation consequence.130 S.Ct. at 1483. The deportation warning during the pleacolloquy was also insufficient to cure the prejudice arisingfrom her counsel's failure to comply with the requirements ofPadilla. Hernandez v. State, ––– So.3d –––– (Fla.2012);Oropesa v. State, 104 So.3d 1183 (Fla. 2d DCA 2012). Thus,we reverse and remand with instructions to reconsiderCastano's motion.

REVERSED and REMANDED WITH INSTRUCTIONS.

LAWSON and BERGER, JJ., concur.

All Citations

106 So.3d 28 (Mem), 38 Fla. L. Weekly D214


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App. 8

Documents

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA … · 2015. 8. 7. · (Supp. R- 52). Mr. Torroella testified that he is a licensed Florida attorney, that Ms. Vergara-Castaño