State of Arizona v. Nunez-Diaz

IN THE SUPREME COURT OF THE STATE OF ARIZONA STATE OF ARIZONA, Petitioner, v. HECTOR SEBASTION NUNEZ-DIAZ, Respondent. No. CR-18-0514-PR Filed July 16, 2019 Appeal from the Superior Court in Maricopa County The Honorable Phemonia L. Miller, Judge Pro Tempore No. CR2013-430489-001 AFFIRMED Memorandum Decision of the Court of Appeals Division One 1 CA-CR 16-0793 PRPC Filed Sept. 18, 2018 AFFIRMED COUNSEL: Ray A. Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for Hector Sebastian Nunez-Diaz William G. Montgomery, Maricopa County Attorney, Karen Kemper, Deputy County Attorney (argued), Phoenix, Attorneys for State of Arizona Mark Brnovich, Arizona Attorney General, Drew C. Ensign (argued), Deputy Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General John Walters, Office of the Pima County Public Defender, Tucson; Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant Federal Public Defender, Phoenix; Grant D. Wille, Ralls & Reidy, P.C., Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice, STATE V. NUNEZ-DIAZ Opinion of the Court Pima County Public Defender, and the Federal Public Defender for the District of Arizona CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICES TIMMER, BOLICK and PELANDER (RETIRED) joined. JUSTICE BOLICK, joined by JUSTICE PELANDER, filed a concurring opinion. JUSTICE LOPEZ, joined by VICE CHIEF BRUTINEL and JUSTICE GOULD, filed an opinion concurring in the result. CHIEF JUSTICE BALES, opinion of the Court: ¶1 In this case involving post-conviction relief, the State argues that the lower courts erred in concluding that Hector Sebastion Nunez- Diaz, an undocumented immigrant, received ineffective assistance of counsel when he entered a guilty plea resulting in his mandatory deportation. The State contends that because Nunez-Diaz was deportable without regard to his plea, he cannot establish a claim of ineffective assistance or, alternatively, that any constitutional violation was harmless. Because Nunez-Diaz suffered severe and mandatory consequences (including a permanent bar from reentry) as a result of the plea he entered due to counsel’s deficient advice, we agree with the trial court and the court of appeals that he received ineffective assistance of counsel justifying post- conviction relief. I. ¶2 We defer to a trial court’s findings of fact unless clearly erroneous. State v. Hulsey, 243 Ariz. 367, 377 ¶ 17 (2018). Nunez-Diaz was stopped for speeding and found in possession of small amounts of methamphetamine and cocaine. He was subsequently charged with possession or use of a dangerous drug and possession or use of a narcotic drug, each a class 4 felony. See A.R.S. §§ 13-3407(A)(1), -3408(A)(1). The record does not reflect that Nunez-Diaz had any prior criminal history. ¶3 Upon his arrest, Nunez-Diaz’s family began searching for an attorney. Their chief concern was avoiding Nunez-Diaz’s deportation. They met with an attorney from a Phoenix law firm experienced in criminal defense and immigration law, who informed them that although Nunez- Diaz had a difficult case, it was possible to avoid deportation. Reassured by this meeting, Nunez-Diaz’s family chose to retain that firm, ...

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