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State v. Garcia

Supreme Court of South Dakota

June 26, 2013

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
PABLO GARCIA, Defendant and Appellant.

CONSIDERED ON BRIEFS ON NOVEMBER 6, 2012

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA, THE HONORABLE JON R. ERICKSON Judge

MARTY J. JACKLEY Attorney General, DOUGLAS P. BARNETT Assistant Attorney General, Attorneys for plaintiff and appellee.

GINA J. ROGERS, Attorney for defendant and appellant.

WILBUR, Justice

[¶1.] Pablo Garcia appeals from the trial court's denial of his motion to re- open and vacate judgment. In applying the principles set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the trial court determined that the rule announced in the United States Supreme Court's holding in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) was a new rule that does not apply retroactively. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶2.] Garcia was born in Mexico. Prior to his first birthday, Garcia's mother moved with Garcia to the United States. Following this move, Garcia has spent the majority of his life, 35 years, in the United States.

[¶3.] On September 26, 2003, Garcia was indicted for possession with intent to distribute more than one pound of marijuana, a Class 3 felony, in violation of SDCL 22-42-7. In addition, Garcia was indicted for possession of one to ten pounds of marijuana, a Class 4 felony, in violation of SDCL 22-42-6. On October 1, 2003, the State filed a part two information alleging that Garcia had previously been convicted of two felonies, subjecting him to a possible enhanced sentence under SDCL 22-7-7.

[¶4.] Garcia, represented by counsel, [1] pleaded guilty to possession of one to ten pounds of marijuana under SDCL 22-42-6 on January 13, 2004. In exchange for Garcia's guilty plea, the State dismissed the remaining charge and the part two information. Additionally, prior to sentencing, a presentence investigation was conducted and a report was prepared. The report erroneously indicated that Garcia was born in Uvalde, Texas.

[¶5.] Garcia was sentenced to a three-year penitentiary term. A judgment of conviction was filed on February 24, 2004, and a notice of entry of judgment of conviction was filed on February 27, 2004.

[¶6.] In November 2005, the United States commenced removal proceedings against Garcia. The notice to appear in the removal proceedings alleged that Garcia had been admitted to the United States, but because he had been convicted of an aggravated felony, he was subject to removal from the United States. A warrant of removal/deportation was issued on January 3, 2006, resulting in Garcia's deportation.

[¶7.] Following Garcia's removal, a new permanent resident card arrived at Garcia's South Dakota residence, where Garcia's fiancée and children continued to reside. Garcia re-entered the United States in September 2006. On January 18, 2007, the South Dakota Department of Corrections discharged Garcia from its supervision.

[ΒΆ8.] On September 20, 2011, Garcia acknowledged his receipt of a notice of intent/decision to reinstate the prior removal/deportation order. Garcia was then charged by the United States Attorney for the District of South Dakota with illegal re-entry to ...


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