State v. Gutierrez

NOT DESIGNATED FOR PUBLICATION No. 122,585 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. SAUL GUTIERREZ, Appellant. MEMORANDUM OPINION Appeal from Wyandotte District Court; MICHAEL A. RUSSELL, judge. Opinion filed December 3, 2021. Affirmed. Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant. Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee. Before BRUNS, P.J., BUSER, J., and WALKER, S.J. BUSER, J.: This is an appeal by Saul Gutierrez of the district court's denial of his postsentencing motion to withdraw plea. Gutierrez contends his court appointed attorney provided ineffective assistance of counsel by misleading him regarding the immigration consequences of pleading no contest to aggravated battery. Gutierrez, who is facing deportation, claims he was prejudiced as a result. After an evidentiary hearing on the motion, the district court made extensive and detailed findings of fact and conclusions of law. The district court ruled that Gutierrez' 1 attorney had competently represented his legal interests and that Gutierrez was not prejudiced by his attorney's conduct. Accordingly, the district court determined that Gutierrez had not established manifest injustice to justify the postsentence withdrawal of his no contest plea. Finding no abuse of discretion, we affirm the district court. FACTUAL AND PROCEDURAL BACKGROUND On November 7, 2016, the State charged Saul Gutierrez with aggravated indecent liberties with a child and rape. These charges were the result of allegations that while at his residence in February 2016, Gutierrez lewdly fondled two minor girls while their mother and aunt were away. The State subsequently amended the complaint, deleting the rape count and adding a second aggravated indecent liberties with a child charge. In April 2018, Gutierrez' first trial ended in a mistrial when, during voir dire, jurors observed that Gutierrez was wearing a house arrest bracelet. On December 10, 2018, the first day of his second trial, Gutierrez entered into a plea agreement wherein he agreed to plead no contest to a single amended count of aggravated battery, a severity level 5 person felony, in violation of K.S.A. 2015 Supp. 21- 5413(b)(2)(A). In return, the State agreed to dismiss the remaining count and to allow Gutierrez to seek a durational departure and dispositional departure to probation. The plea agreement was memorialized in a petition to enter plea of no contest (plea petition) filed with the court clerk. The plea petition, typewritten in both English and Spanish, included the following paragraph regarding the potential immigration consequences of the plea: "Deportation Consequences. Defendant recognizes that pleading 'No Contest' may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense(s) to which defendant is pleading 'No Contest.' Removal and other immigration 2 consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty …

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