NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Petitioner, v. HECTOR SEBASTION NUNEZ-DIAZ, Respondent. No. 1 CA-CR 16-0793 PRPC FILED 9-18-2018 Petition for Review from the Superior Court in Maricopa County No. CR2013-430489-001 The Honorable Phemonia L. Miller, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Karen B. Kemper Counsel for Petitioner Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix By Ray A. Ybarra Maldonado Counsel for Respondent MEMORANDUM DECISION Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Kent E. Cattani joined. Presiding Judge James B. Morse Jr. dissented. STATE v. NUNEZ-DIAZ Decision of the Court W I N T H R O P, Judge: ¶1 The State of Arizona petitions this court for review of the superior court’s order granting the petition for post-conviction relief filed by Hector Sebastion Nunez-Diaz. We have considered the petition for review and, for the reasons stated, grant review but deny relief. ¶2 Nunez-Diaz was charged with possession or use of a dangerous drug (methamphetamine) and possession or use of a narcotic drug (cocaine), each a class 4 felony. The record does not reflect that Nunez- Diaz had a prior criminal history. He pled guilty to possession of drug paraphernalia, a class 6 undesignated felony, and pursuant to the plea agreement, the court suspended sentencing and placed him on eighteen months’ unsupervised probation. Shortly afterward, Immigration and Customs Enforcement officials took him into custody, subject to being deported, and he agreed to a “voluntary departure” in lieu thereof, while represented by a different attorney for his immigration proceedings. ¶3 Nunez-Diaz filed a petition for post-conviction relief, claiming his plea counsel was ineffective for failing to secure a plea or disposition of his charges that would have protected his ability to remain in the United States, and not advising him that his plea would result in his being subject to mandatory deportation. The superior court ordered an evidentiary hearing. ¶4 Nunez-Diaz appeared via Skype and telephone at the evidentiary hearing, and the superior court took testimony from him, his sister, and his plea counsel. Nunez-Diaz testified that his plea counsel told him there would be no problems with the plea and with his immigration status if he entered the plea. He testified that he would not have signed the plea agreement had he been advised of the specific immigration consequences of the plea and that he was subject to mandatory deportation. His sister testified to meeting with an immigration lawyer from the same firm to which plea counsel belonged, and she was told the firm would help Nunez-Diaz with his immigration issues after his plea. Based on this meeting, they hired the firm to represent Nunez-Diaz. Representation was then assigned to a different attorney in the firm. ¶5 Plea counsel testified she had ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals