FILED DECEMBER 29, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 37056-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DAVID MERAZ GUTIERREZ, ) ) Appellant. ) PENNELL, C.J. — David Meraz Gutierrez filed a motion for post-conviction relief in the trial court, arguing he was denied effective assistance of counsel because his attorney failed to provide adequate immigration advice prior to entry of a plea to possession of a controlled substance. We agree with Mr. Gutierrez’s claim for relief and reverse the trial court’s order to the contrary. FACTS Mr. Gutierrez is a citizen and national of Mexico. He has lived in the United States since childhood and graduated high school in Kennewick, Washington in 2007. In 2009, Mr. Gutierrez became a lawful permanent resident of the United States. In 2014, Mr. Gutierrez was charged with one count of unlawful possession of a controlled substance, methamphetamine. He was represented by an attorney named Ryan Swinburnson. Originally, Mr. Gutierrez was released from custody pending trial. No. 37056-9-III State v. Gutierrez But after he failed to appear for an omnibus hearing, a bench warrant was issued and he was arrested. Mr. Gutierrez then pleaded guilty as charged on October 9, 2014. His standard sentencing range was 0 to 6 months. The court imposed 30 days’ confinement. Mr. Gutierrez did not appeal. Roughly three years after his plea and conviction, Mr. Gutierrez was deported to Mexico. In January 2019, Mr. Gutierrez filed a motion to vacate his sentence and withdraw his guilty plea. The basis for the motion was that he had not been provided adequate advice about the immigration consequences of his guilty plea. Both Mr. Gutierrez and Mr. Swinburnson provided information relevant to Mr. Gutierrez’s motion; they differ in their accounts. According to Mr. Gutierrez, Mr. Swinburnson never discussed anything about immigration consequences. Mr. Swinburnson disagreed. While he had no specific recollection of the details of Mr. Gutierrez’s case, Mr. Swinburnson claimed his general practice was to ask clients about whether they had any immigration concerns. If so, he would offer to put them in contact with an immigration attorney. Mr. Swinburnson could not find any record that he had contacted an attorney for Mr. Gutierrez. In Mr. Swinburnson’s experience, most of his clients were more concerned about getting out of jail than immigration consequences. Mr. Swinburnson knew that a drug possession conviction could have immigration 2 No. 37056-9-III State v. Gutierrez repercussions. However, Mr. Swinburnson was not able to differentiate the consequences that might be faced by a defendant with “no status at all . . . as opposed to someone who was a legal permanent resident.” Report of Proceedings (Apr. 16, 2019) at 10. At the evidentiary hearing on Mr. Gutierrez’s motion for post-conviction relief, the trial court received testimony from Mr. Swinburnson and credited his account of the interactions with Mr. ...
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