Opinion by JUDGE NAVARRO
¶ 1 Defendant, Hector Toby Sifuentes, appeals the district courts order denying his petition for postconviction relief under Crim. P. 35(c). Sifuentes claims that the court erred by concluding that he did not show prejudice from his counsels erroneous advice about the immigration consequences of his guilty plea. To address his claim, we identify factors pertinent to the prejudice analysis in this context. Considering those factors, we agree with Sifuentes, reverse the order, and remand with directions.
I. Factual and Procedural History
A. Defendants Background, the Criminal Charges, and the Ensuing Plea Agreement
¶ 2 Defendant was born in Mexico in 1970. He moved to the United States when he was two years of age and became a lawful permanent resident in 1988. He also has significant other ties to the United States, including four United States-citizen children, several siblings living lawfully in the country, and a disabled mother (also a lawful permanent resident) for whom he had been acting as caretaker while sharing a home in Denver. He has committed several traffic offenses and misdemeanors but no felonies prior to the charges in this case. None of his prior convictions involved distribution of drugs. Defendant has been receiving medical treatment for sclerosis of the liver, kidney stones, and class one diabetes, which has rendered him insulin dependent. He has no ties-familial or otherwise-to Mexico.
¶ 3 In 2011, the prosecution charged defendant with distributing and conspiring to distribute a controlled substance, class three felonies. He allegedly sold the substance to a confidential informant in a transaction that was audio- and video-recorded by police. Defendant later pleaded guilty to an added count of distribution of a schedule III controlled substance as a class four felony, in exchange for dismissal of the original charges. The plea agreement did not include sentencing concessions.
¶ 4 After conducting a providency hearing and accepting the guilty plea, the trial court sentenced defendant to Community Corrections (Comcor) for five years. Comcor, however, rejected defendant when Immigration and Customs Enforcement (ICE) placed him on an immigration detainer following his conviction. The trial court therefore resentenced defendant to forty-two months in prison followed by three years of mandatory parole. Unbeknownst to defendant and defense counsel, the conviction triggered automatic mandatory deportation (known as removal) under federal law, along with mandatory detention throughout the ensuing deportation proceedings. See 8 U.S.C. § 1226(c)(1)(B) (2012).
B. Postconviction Proceedings
¶ 5 Defendant filed a Crim. P. 35(c) petition for postconviction relief seeking to withdraw his guilty plea on the ground of ineffective assistance of his plea counsel. Defendant claimed that his plea counsel failed to advise him of a clear and unavoidable immigration consequence flowing directly from his guilty plea-he would be deported automatically. Instead, his plea counsel advised him that, in light of his strong ties to this country, he might be able to remain here even after he pleaded guilty. Defendant maintained that, if he had been properly advised, he would have rejected the plea agreement and insisted on proceeding to trial.
¶ 6 The postconviction court held a two-day evidentiary hearing. Defendants plea counsel testified that the risk of deportation played a central motivating role in defendants plea deliberations. Defendant emphasized his concern over removal from the country the first time he spoke with plea counsel, and he repeated that concern every time thereafter. But the prosecution offered only a guilty plea to distribution of a schedule III controlled substance, which carried a lower sentencing range than the original charges but did not avoid the risk of deportation altogether.
¶ 7 Thus, before the providency hearing, plea counsel advised defendant that a guilty plea to the reduced charge created a risk of deportation but deportation would not be automatic and he would still be eligible for a sentence to probation or Comcor. At the resentencing hearing, plea counsel continued to inform defendant that, even though he had been placed on an immigration detainer after his conviction, he still had a chance of staying in the United States based on his long residential history in the country and his complicated health issues. As the postconviction court found, all of this advice was erroneous.
¶ 8 The postconviction court also heard testimony from defendant and his sister. His sister testified that defendants family resides in the United States and that he lacks any ties to Mexico. She also explained that defendants medical condition likely rendered a longer prison sentence in the United States preferable to faster deportation to Mexico, where his access to medical treatment would be uncertain. Defendant reiterated his misunderstanding of the immigration consequences arising from his guilty plea (i.e., he thought he would still have a chance to remain in this country). He explained that he probably would never see his ailing mother again if he were deported. He also confirmed his sisters concerns about his own medical treatment, and he told the court: Ill probably die out there [in Mexico], because I have no one out there, absolutely nobody. Everybody I have is right here in this courtroom today.
¶ 9 Finally, an immigration attorney-whom defendants plea counsel had consulted before his plea-testified at the postconviction hearing. The immigration attorney explained that defendants plea counsel had consulted her about immigration issues generally, but she did not offer advice to plea counsel about defendants specific situation. The immigration attorney also testified that defendant had retained her after his guilty plea and after ICE had placed him on an immigration detainer. Although she explained that defendant had retained her shortly before his resentencing hearing, she did not testify that she advised him of the automatic deportation consequences of his conviction prior to the resentencing hearing. And the immigration attorney did not represent him at the resentencing hearing.
¶ 10 The postconviction court denied the petition in a written order. The court first agreed with defendant that his plea counsel had failed to properly advise him of the automatic immigration consequences of his plea: [I]t is clear that the plea was to an aggravated felony which made the Defendant automatically deportable. Further, the plea to an aggravated felony meant that factors such as the Defendants time living in this country, his health or his family situation would not protect him from deportation. Therefore, the court concluded that plea counsels advice constituted deficient representation.
¶ 11 According to the court, however, defendant did not suffer prejudice because [d]ue to audio and video recordings [of the offense] there was no rational basis to believe that [he] would not be convicted at trial. As a result, the court held that, even if defendant had known of the correct immigration consequences of the guilty plea, it would not have been rational for him to reject the plea offer.
¶ 12 The postconviction court further concluded that, even if defendant had established prejudice from his counsels advice, he was not entitled to relief due to the circumstances of his providency hearing. Specifically, he had signed a written Crim. P. 11 advisement indicating, among many other points, that his guilty plea would result in deportation. And, during the colloquy with the plea court at the providency hearing, defendant indicated generally that he understood the terms of the written advisement and asked no questions.
II. Ineffective Assistance of Counsel
¶ 13 Defendant contends that the district court erred in determining that his plea counsels deficient performance did not prejudice him. We agree.
A. General Law and Standard of Review
¶ 14 Criminal defendants have a right to counsel, see U.S. Const. amends. VI, XIV ; see also Colo. Const. art. II, § 16, and the right to counsel is the right to the effective assistance of counsel, McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). This right extends to plea bargaining. People v. Corson , 2016 CO 33, ¶ 32, 379 P.3d 288 (citing Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) ).
¶ 15 Ineffective assistance of counsel during plea bargaining may constitute an adequate ground for postconviction relief under Crim. P. 35(c). See People v. Hunt , 2016 COA 93, ¶ 12, 412 P.3d 838. To prevail on such a claim, a defendant must establish that (1) counsels performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; accord Dunlap v. People , 173 P.3d 1054, 1062-63 (Colo. 2007).
¶ 16 A conclusion on either Strickland prong presents a mixed question of law and fact. Carmichael v. People , 206 P.3d 800, 807 (Colo. 2009). While we review a district courts factual findings with deference, we review the application of law to those findings de novo. Id. at 808. That is, we independently review the ultimate determinations on Strickland s performance and prejudice prongs. People v. Brown , 250 P.3d 679, 681 (Colo. App. 2010) ; see also People v. Newmiller , 2014 COA 84, ¶ 18, 338 P.3d 459.
B. Analysis
1. Deficient Performance
¶ 17 Although neither party challenges the postconviction courts conclusion that defendant satisfied the first Strickland prong, we explain that the law and the record support the courts decision.
¶ 18 The offense to which defendant pleaded guilty qualified as an aggravated felony under federal immigration law. See 8 U.S.C. § 1101(a)(43)(B) (2012) (The term aggravated felony [includes] illicit trafficking in a controlled substance.). As such, the conviction not only subjected defendant to mandatory deportation (preceded by an immigration detainer) but also precluded the opportunity for him to defend against his removal through an immigration proceeding. See 8 U.S.C. § 1229b(a)(3) (2012). A lawful permanent resident may ordinarily offer a defense to deportation through a proceeding known as cancellation of removal. Id. This proceeding, however, is not available where the defendant is convicted, as here, of an aggravated felony. Id.
¶ 19 Yet plea counsel advised defendant that remaining in this country would still be possible even after his guilty plea. Because counsels advice ran counter to succinct, clear, and explicit requirements of immigration law, counsels advice was deficient. See Padilla v. Kentucky , 559 U.S. 356, 368-69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ; see also United States v. Rodriguez-Vega , 797 F.3d 781, 785-88 (9th Cir. 2015) (holding that, where deportation is virtually certain as a consequence of the guilty plea, advising the defendant of the mere potential for deportation is deficient performance); Hernandez v. United States , 778 F.3d 1230, 1233-34 (11th Cir. 2015) (same). We move, therefore, to the second Strickland prong-prejudice from the deficient performance.
2. Prejudice
¶ 20 In the context of a guilty plea, the prejudice prong requires the defendant to show that there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; see also Corson , ¶ 34. Reasonable probability means a probability sufficient to undermine confidence in the outcome and is a standard somewhat lower than a preponderance of the evidence. Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ; see also Carmichael , 206 P.3d at 806-07. The standard presents an objective inquiry that asks not whether the defendant likely would have been acquitted at trial but whether counsels conduct affected the outcome of the plea process. Corson , ¶ 35 ; People v. Pozo , 746 P.2d 523, 529 n.8 (Colo. 1987). Some objective evidence must corroborate the defendants testimony that he would have made a different decision about the plea if he had been properly advised. Carmichael , 206 P.3d at 807. In the end, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. Padilla , 559 U.S. at 372, 130 S.Ct. 1473.
¶ 21 Various factors should inform a courts analysis of whether a decision to reject the guilty plea would have been rational. First, a court should consider the strength of the prosecutions case. See, e.g. , People v. Morones-Quinonez , 2015 COA 161, ¶ 13, 363 P.3d 807 ; State v. Tejeiro , 345 P.3d 1074, 1083 (N.M. Ct. App. 2014). Second, the attractiveness of the plea deal and the risks of going to trial should be analyzed. See Carmichael , 206 P.3d at 806 (recognizing that the comparative sentencing exposure between standing trial and accepting a plea offer may be important to the decision whether to plead guilty).
¶ 22 Third-in the case of a noncitizen defendant who wishes to remain in the United States-a court must take into account the
defendants ties to this country as judged against the defendants ties to another country. See Morones-Quinonez , ¶ 13 ; People v. Kazadi , 284 P.3d 70, 74 (Colo. App. 2011), affd , 2012 CO 73, 291 P.3d 16 ; see also Lee v. United States , 825 F.3d 311, 316 (6th Cir.), cert. granted 580 U.S. ----, 137 S.Ct. 614, 196 L.Ed.2d 490 (2016) ; DeBartolo v. United States , 790 F.3d 775, 779-80 (7th Cir. 2015) ; United States v. Orocio , 645 F.3d 630, 644-45 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) ; Sasonov v. United States , 575 F.Supp.2d 626, 636-38 (D. N.J. 2008) ; Sial v. State , 862 N.E.2d 702, 706 (Ind. Ct. App. 2007) ; Padilla v. Commonwealth , 381 S.W.3d 322, 329-30 (Ky. Ct. App. 2012) ; People v. Picca , 97 A.D.3d 170, 947 N.Y.S.2d 120, 129-31 (2012) ; State v. Sandoval , 171 Wash.2d 163, 249 P.3d 1015, 1021-22 (2011) ; cf. Padilla , 559 U.S. at 368, 130 S.Ct. 1473 (recognizing that preserving a noncitizens right to remain in this country may be more important than any potential jail sentence).
a. The Postconviction Courts Reasoning
¶ 23 We address initially the postconviction courts view that defendant was not entitled to relief even if [he] had established both prongs of the Strickland test because he was properly advised by the written Rule 11 advisement. We disagree because, where a defendant meets the two-prong test set forth in Strickland , the defendant succeeds on a claim of ineffective assistance of counsel and must be allowed to withdraw his plea. See, e.g. , Carmichael , 206 P.3d at 807 ; Pozo , 746 P.2d at 527 n.5.
¶ 24 The postconviction court believed that People v. DiGuglielmo , 33 P.3d 1248 (Colo. App. 2001), dictates a different result. But the DiGuglielmo division recognized that Strickland governed the defendants claim that his plea counsel had provided ineffective assistance by advising him that he would receive a deferred judgment (he was later sentenced to probation instead). Id. at 1251. The division concluded that because both the written Crim. P. 11 advisement form and the trial court at the providency hearing specifically addressed the issue of a deferred judgment, and the defendant did not ask clarifying questions, he could not succeed on his ineffective assistance claim. Id.
¶ 25 As we understand the case, the DiGuglielmo division decided that the defendant could not show prejudice from his counsels advice because the plea court had correctly advised him of the specific plea consequence that his counsel had allegedly failed to mention. See also United States v. Kayode , 777 F.3d 719, 728-29 (5th Cir. 2014) (recognizing that, while judicial admonishments during a plea colloquy have no bearing on the first Strickland prong, they may be relevant under the second prong to assess prejudice). In other words, the defendant could not show prejudice because he actually knew of the true consequences of his plea.
¶ 26 Those are not the facts of this case. Although the written Rule 11 advisement mentioned deportation as a consequence of the guilty plea, the plea court did not. (Nor did the court recognize on the record that defendant was not a citizen.) Indeed, the DiGuglielmo division distinguished its decision from another case on that very basis. See 33 P.3d at 1252 ( Rael is distinguishable because there is no indication in that opinion whether the trial court had advised the defendant there about the issue that was the focus of his claim of misrepresentation.). Furthermore, the supreme courts subsequent Carmichael decision illustrates that a proper advisement by the district court does not preclude, as a matter of law, a finding of prejudice based on counsels specific, erroneous advice. Morones-Quinonez , ¶ 21 (discussing Carmichael , 206 P.3d at 807-09 ). This principle is particularly apt in the immigration context, where a general advisement about the possibility of adverse immigration consequences may not be sufficient to dispel a specific promise or misrepresentation by counsel. Id. at ¶ 22 ; State v. Favela , 311 P.3d 1213, 1222 (N.M. Ct. App. 2013) (recognizing that even a courts unequivocal warning may be insufficient to cure prejudice from counsels deficient performance because that warning alone does not ensure that the defendant received effective assistance in evaluating such an advisement). And defendant here does not contend that [ ]he had questions or concerns, or that [ ]he was confused at the providency hearing, based on irreconcilable advisements from [his] counsel and the court, which is the situation addressed in DiGuglielmo . Morones-Quinonez , ¶ 24. Instead, he contends that he relied on his counsels specific, erroneous advice when he pleaded guilty. Id.
¶ 27 Finally, unlike in DiGuglielmo , the premise of the postconviction courts analysis here was that defendant did not know of the automatic deportation consequence of his plea, regardless of the written advisement. Hence, the postconviction court focused on what he would have done if he had known.
¶ 28 The postconviction court also cited People v. Chavez , 7 P.3d 1047 (Colo. App. 1999), to support its view that defendant could not obtain relief even if he satisfied both prongs of Strickland . Because Chavez does not concern an ineffective assistance of counsel claim, however, it sheds no light here. Consistent with our conclusion that Chavez and DiGuglielmo are inapposite, the People do not rely on those cases (or the written Rule 11 advisement) on appeal.
¶ 29 We turn therefore to the postconviction courts discussion of what defendant would have done if he had known of the automatic deportation consequence of his guilty plea. Defendant claimed that he would have rejected the plea deal and gone to trial if he had been properly advised. The postconviction court deemed his contention not to be credible. Although framed as a credibility finding, the courts conclusion mirrors the ultimate determination of whether defendant showed Strickland prejudice in the guilty-plea context. As explained, such a determination is a legal conclusion that we review de novo. See Carmichael , 206 P.3d at 807 ; Brown , 250 P.3d at 681 ; see also Chhabra v. United States , 720 F.3d 395, 406 (2d Cir. 2013) (The district courts findings as to basic, primary, or historical fact are subject to the clearly erroneous standard of review; the courts ultimate rulings as to Strickland s components, and its ultimate decision as to whether counsels performance violated the defendants Sixth Amendment rights, are reviewed de novo.) (citations omitted).
¶ 30 Of course, where a district courts prejudice determination depends heavily on the courts credibility findings or its resolution of factual disputes, we would give the courts findings substantial deference. Here, however, the postconviction court did not base its denial of defendants claim on conflicting testimony, defendants demeanor, a reputation for mendacity, or any other traditional credibility factor. On the contrary, the court credited defendants testimony as to the historical facts-e.g., what he told his plea counsel (he wanted to avoid deportation if possible) and what counsel told him (deportation was not automatic under the plea deal). In denying defendants prejudice claim nonetheless, the court relied entirely on its view that rejecting the plea would not have been rational even accepting defendants account of the facts. Because this conclusion is intertwined with the ultimate question of prejudice, we naturally review it de novo.
¶ 31 The postconviction court concluded that defendants rejecting the plea agreement and going to trial would not have been a rational decision because acquittal at trial was very unlikely given the recordings of the alleged drug transaction, his failure to identify a viable defense, and the prosecutions refusal to offer an immigrant-friendly plea deal. The court thus assumed that defendant would be convicted and deported in any event and, therefore, he faced only a decision between two to eight years in prison (under the plea deal) and four to sixteen years in prison (if convicted at trial).
¶ 32 The postconviction court weighed some of the factors relevant to the prejudice inquiry. But the courts analysis did not go far enough.
¶ 33 Neither the strength of the prosecutions case nor the difference in the sentencing ranges between the plea deal and a conviction at trial are necessarily dispositive when a defendant faces immigration consequences. Morones-Quinonez , ¶ 13 ; see Orocio , 645 F.3d at 643 (noting that likely acquittal at trial is not the sine qua non of prejudice). As explained, a court must consider all relevant factors-especially the defendants ties to the United States and the resulting severity of deportation-before reaching a conclusion about prejudice. See Morones-Quinonez , ¶ 13 ; see also Lee , 825 F.3d at 316 ([A] claimants ties to the United States should be taken into account in evaluating, alongside the legal merits , whether counsels bad advice caused prejudice.); Gonzalez v. United States , 722 F.3d 118, 132 (2d Cir. 2013) ([T]he court should, before reaching a conclusion as to prejudice, take into account all relevant factors.). Although the strength of the States case may be considered as part of a larger analysis of prejudice, the postconviction courts almost exclusive reliance on the strength of the States case and the benefits of the plea was improper[.] Tejeiro , 345 P.3d at 1083.
¶ 34 We thus discern error in the postconviction courts legal analysis, and we now consider defendants claim in light of all relevant factors.
b. Balancing All Relevant Factors
¶ 35 We first take heed of the Colorado Supreme Courts recognition that when an alien defendant enters a guilty plea based on erroneous representations as to deportation consequences, he or she will in most cases be permitted to withdraw the plea. Pozo , 746 P.2d at 527 n.5. We also recognize that, in compliance with Carmichael , defendant here presented some objective corroborating evidence of his prejudice claim (e.g., his plea counsels testimony confirming defendants concerns about deportation and her erroneous advice about deportation). See 206 P.3d at 807 ; see also Hernandez , 778 F.3d at 1233-34 (recognizing that plea counsels statement corroborated defendants allegations of ineffective assistance).
¶ 36 Next, we agree with the postconviction court that the prosecutions case against defendant appeared to be strong. How strong, however, is not clear. The confidential informant who allegedly bought the drugs from defendant did not testify at the postconviction hearing. Nor did any other prosecution witness testify. Although the record indicates that audio and video recordings of the alleged sale exist, neither recording was admitted into evidence or described in detail through the testimony at the postconviction hearing. Hence, the admitted evidence does not reveal precisely how incriminating (or ambiguous) the recordings may be. Other documents in the record briefly describe the recordings, but they were not admitted into evidence at the hearing either. Even if we may consider such documents, they suggest that, while the audio recording contains some statements implicating defendant, the video recording does not actually depict a drug sale.
¶ 37 Because we recognize, however, that the prosecution did not bear the burden of proof at the hearing, we accept for our analysis that the prosecutions case was formidable. But we cannot conclude on this record that a conviction would have been the sure thing that the government claims. DeBartolo , 790 F.3d at 779. Moreover, while the apparent existence of a likely trial defense may strengthen a defendants prejudice showing, establishing such a defense is not absolutely required in cases involving counsels failure to accurately advise the defendant of the immigration consequences of a guilty plea. People v. Deltoro , 391 Ill.Dec. 713, 31 N.E.3d 389, 394 (2015) ; see Zemene v. Clarke , 289 Va. 303, 768 S.E.2d 684, 691 (2015) (holding that, in advancing a claim of prejudice due to defense counsels failure to advise of the immigration consequences when entering a plea agreement, the defendant need not demonstrate a likelihood of acquittal at trial). In sum, the strength of the evidence against defendant is not as probative of rationality as it would be in a nonimmigration case. Morones-Quinonez , ¶ 15.
¶ 38 Turning to the attractiveness of the plea deal, we first observe that the deal did not give defendant what he repeatedly said he wanted-a chance to stay in this country. Instead, the guilty plea guaranteed his automatic deportation. Thus, although the evidence against defendant was compelling, [t]he threat of removal provide[d] [a] powerful incentive to go to trial [where] a plea would result in removal anyway. Id. at ¶ 13 (quoting Orocio , 645 F.3d at 645 ); see Keserovic v. State , 158 Idaho 234, 345 P.3d 1024, 1030 (Idaho Ct. App. 2015) (Given the defendants asserted desire to avoid deportation and the virtual certainty of deportation if he pleaded guilty, it may well have been in [his] better interests to take his chances at trial even accepting as true the States assertion that the evidence of [his] guilt was overwhelming.); see also Sasonov , 575 F.Supp.2d at 637 ; United States v. Purpura , No. 1:CR-94-171-01, 2012 WL 716149, at *2-3 (M.D. Pa. Mar. 5, 2012) (unpublished opinion); Padilla , 381 S.W.3d at 329 ; Picca , 947 N.Y.S.2d at 130-31 ; Sandoval , 249 P.3d at 1022.
¶ 39 Moreover, the downside of going to trial was not immense, which is to say that the upside of the plea deal was hardly irresistible even assuming defendant probably would have been convicted at trial. True, the plea deal offered a more favorable sentencing range, two to eight years in prison versus four to sixteen years if he were convicted at trial. But this difference is modest when compared to the large disparities analyzed in other cases. See, e.g. , Orocio , 645 F.3d at 634 (comparing a plea deal offering credit for time served and two years of supervised release with a trial conviction carrying a minimum ten-year prison sentence); Sandoval , 249 P.3d at 1021-22 (considering a plea deal of 6 to 12 months as opposed to a trial conviction carrying a minimum sentence of 61//2 to 81//2 years and a maximum of life in prison); cf. Carmichael , 206 P.3d at 807 (considering the large disparity between the sentence exposure as represented to Carmichael by [defense counsel] and the actual exposure Carmichael faced by going to trial).
¶ 40 In addition, mitigating factors (such as the absence of prior felonies and his serious health problems) could lead defendant to reasonably believe that a sentence at the higher end of the sentencing range and consecutive sentences were not likely if he went to trial. (Recall that defendant originally received a Comcor sentence and then a lower-range prison sentence after he pleaded guilty.) In fact, the postconviction court-which had also been the sentencing court-never mentioned consecutive sentences as a realistic possibility at trial, nor did the prosecutor. Because consecutive sentences were not mandatory, and because the sentencing ranges overlapped, defendant could possibly have received the same sentence after conviction at trial as he would have received after pleading guilty.
¶ 41 In any event, preserving the right to stay in the United States may be more important to the [defendant] than any potential jail sentence. Padilla , 559 U.S. at 368, 130 S.Ct. 1473. This is especially true where, as here, the defendant is a lawful permanent resident facing permanent banishment from a country he has lived in since he was a toddler. See Orocio , 645 F.3d at 645 ([Defendant] rationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of a single decade in prison.). In addition, unrebutted evidence at the postconviction hearing revealed that defendants serious health problems (which require daily insulin treatment) might make a longer prison sentence, where some medical treatment would likely be available, preferable to earlier deportation to a place where his ability to secure treatment is uncertain. Cf. DeBartolo , 790 F.3d at 779-80 (The defendant might even have preferred a lengthy prison term in the United States to a shorter prison term that would lead more quickly to deportation, because the lengthy prison term would at least keep him in the same country as his family, facilitating frequent visits by family members, which is important to prisoners.).
¶ 42 Finally, the unrebutted evidence established defendants tight connection to the United States. He has lived here for over forty years, virtually his entire life. Defendants family, including his children and ailing mother, live here too. He has no apparent ties to Mexico. Therefore, removal from the United States would be the equivalent of banishment or exile from his family and long-time home.
Delgadillo v. Carmichael , 332 U.S. 388, 391, 68 S.Ct. 10, 92 L.Ed. 17 (1947) ; Sandoval , 249 P.3d at 1022.
¶ 43 With all this in mind, we must decide not whether a decision to reject a plea of guilty was the best choice, but only whether it [was] a rational one. Picca , 947 N.Y.S.2d at 130 (discussing Padilla standard). For the reasons discussed above, we conclude that rejecting the guilty plea offer and going to trial would have been a rational decision for defendant here. Id. (recognizing that the relevant question is whether taking a chance, however slim, of being acquitted after trial would have been rational); see People v. Chavez-Torres , 2016 COA 169M, ¶ 32, 410 P.3d 690 (Chavez-Torres alleged in his postconviction motion that rejecting the plea offer would have been rational under the circumstances because his entire immediate family lived in the United States and he had no family in, or connections to, Mexico. These unrebutted allegations sufficiently assert Strickland prejudice.).
¶ 44 Although the People rely on People v. Campos-Corona , 2013 COA 23, 343 P.3d 983, the facts of that case were quite different. There, the district court found that the defendant had desired only to avoid prison time under the plea agreement, not to avoid deportation. Id. at ¶ 15. Because his plea advanced that goal, the court found that he would not have changed his plea even if he had known he would be deported. Id. In contrast, the postconviction court here recognized that securing a chance to stay in this country was important to defendant. And, to the extent a chance to receive a Comcor sentence was also important to him, the guilty plea did not advance that goal either. Contrary to his counsels advice, his plea subjected him to an immigration detainer that caused Comcor to reject him and resulted in his resentencing to prison.
¶ 45 Because defendant has established a reasonable probability that his plea counsels deficient performance affected the outcome of the plea process, he must be allowed to withdraw his guilty plea. See Hill , 474 U.S. at 59, 106 S.Ct. 366 ; Pozo , 746 P.2d at 529 n.8.
III. Conclusion and Remand Directions
¶ 46 We reverse the order denying defendant relief under Crim. P. 35(c), and we remand to the district court with directions to grant defendants petition. In conjunction with that relief, the court shall vacate defendants conviction, permit him to withdraw his guilty plea, and reinstate the original charges against him.
Taubman, J., concurs
Graham, J., dissents
Based on plea counsels testimony, the postconviction court found that, during plea negotiations, counsel had advised defendant that immigration authorities would consider his lawful permanent resident status, his length of time in this country, and his family and health concerns when deciding whether to deport him.
The dissent takes a different view, concluding that defendant actually knew of the true consequences of his plea. The dissent cites defendants prior criminal acts. Because those prior acts did not result in immigration consequences, however, they could not have made him aware of the immigration consequence of the guilty plea here. On the contrary, those earlier experiences gave him reason to believe his plea counsels erroneous advice that his new conviction would not guarantee deportation either. Further, while defendant retained an immigration attorney after his plea and before his resentencing, neither that attorney nor defendant testified that she had advised him of the automatic deportation consequence of his plea before the resentencing hearing. And the record shows that both his plea counsel and the sentencing court (on whom defendant could be expected to rely) seemed to believe that avoiding deportation was still possible. It is not surprising, therefore, that he did not move to withdraw his plea before or at the resentencing hearing. Regardless, the relevant question is what defendant knew at the time of his plea, not at the resentencing hearing. For that reason, any advisements contained in the presentence investigation report (PSIR) are also irrelevant because the PSIR was prepared after defendant had pleaded guilty.
The record does not reveal, however, whether defendant was advised of the sentences he faced if convicted of the original charges at trial.
Defendants plea counsel testified that, according to her memory, the recordings captured the incident and persuaded her that this case would be difficult to defend. She did not, however, provide any details of what the recordings depicted. And, although defendant initially agreed with the postconviction courts statement that the recordings showed him committing the crime, he later clarified that his belief was based solely on what others had told him about the recordings. He had never seen them. Beyond this brief exchange, he did not admit his guilt.
Defendants plea counsel admitted that she did little to investigate possible defenses at trial. She did not, for instance, seek to learn the identity of the confidential informant. Cf. People v. McKeel , 246 P.3d 638, 642 (Colo. 2010) (recognizing that work as a confidential informant and prior drug use are among the potentially unsavory details about a witness that a jury may be entitled to hear). These circumstances further complicate the analysis of the strength of the prosecutions case.