Colorado Criminal Law – Immigration Consequences – Deportation Risk Because Of Deferred Judgement and Sentence – Withdrawal Of Plea – In Colorado a deferred judgement and sentence is often considered a “good offer” in cases where the State’s case is strong.
A deferred judgement – is known as an “adjournment” in some states or “diversion” type offer in some states – “stipulated orders of continuance” or “dispositional continuance.” Whatever it is called, the agreement ultimately results in the withdrawal of a guilty plea and dismissal of the case after certain agreed upon conditions are met.
One exception in this area is the impact of a deferred judgement on one’s immigration status for those who are at risk of deportation.
In a recent Colorado case, a Defendant plead guilty to the felony crime of criminal impersonation by way of a typical felony two-year deferred judgment and sentence. She successfully completed her deferred judgement and – in the standard course – her plea of guilty was withdrawn and her case dismissed with prejudice.
If a “non-citizen” accepts and participates in a deferred judgement agreement the non-citizen may be unknowingly pleading to a “deportable conviction” under immigration law.
Your Colorado Criminal Defense Lawyer Must Advise You Of ANY Immigration Consequences
This Defendant, in this recent case, was never informed of the possible federal immigration consequences of pleading guilty in the context of the deferred judgment agreement.
A criminal defense lawyer MUST inform a non-citizen Defendant of the immigration consequences of ANY plea – even to a deferred judgement.
Under the Immigration and Nationality Act (INA) definition of “a conviction” means, with respect to an non citizen:,
“a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where–
(i) a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Under FEDERAL LAW “overt admissions of guilt,”that occur in deferred prosecution or deferred sentencing agreements, satisfy the immigration statute’s “conviction definition,” EVEN IF the plea is later withdrawn and the case dismissed with prejudice (charges can never be re-filed)
The immigration definition of a “conviction” is so broad it applies to ANY finding or admission of guilt in a criminal proceeding. Any such finding or plea is considered a “conviction” in perpetuity for immigration purposes. Even expungements of the criminal case are not given effect under immigration law and do not remove the “conviction” for immigration purposes.
For some strategies as regards rules for accepting plea agreements in Colorado criminal cases if you are a non citizen follow this link to the defensenet organization
One Remedy For Uninformed Pleas – Colorado Rule 32 (d) Ineffective Assistance Of Counsel
In the case discussed – the non-citizen filed a Rule 32(d), alleging ineffective assistance of counsel because her defense counsel did not inform her of the possible federal immigration consequences, despite her successful completion of the deferred judgment.
The district court denied the motion, holding that it lacked jurisdiction because the guiltily plea had already been withdrawn and her case dismissed with prejudice.
The lower court held that since the Defendant did not file the motion within the time limits normally imposed for such a motion (it was filed after the plea was withdrawn and the case dismissed with prejudice), the lower court had no jurisdiction to even hear the case.
Rule 32 (d) reads:
(d) Withdrawal of Plea of Guilty or Nolo Contendere. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.
Under the case of People v. Corrales – Castro, the rule is now that if a Defendant can show that his or her guilty plea has serious legal consequences to their immigration status that Defendant may challenge the constitutionality of that plea under Colorado Rule of Criminal Procedure (32)d) .
“[W]e hold that, when, as here, a defendant shows that his or her guilty plea may have serious legal consequences under federal immigration law notwithstanding its withdrawal pursuant to section 18-1.3-102(2), the defendant may challenge the constitutionality of the plea under Crim. P. 32(d).”
Under Colorado law a non citizen has a right to challenge the “uniformed” entry of a plea under Rule 32(d) – to have that Motion heard and determined by a trial court because:
The “plea” – under federal immigration – remains a conviction and a Defendant has a right to seek withdrawal of or to try to “void” their plea to a deferred judgment and sentence.
Furthermore, even if the Defendant successfully completes the deferred judgment and sentence and the case is dismissed with prejudice – the lower court retains jurisdiction to hear a Defendant’s Motion to Withdraw their plea.
A plea to a deferred judgment and sentence remains a conviction with serious immigration consequences, and therefore it is Rule 32(d) that provides the proper mechanism to seek legal relief for this cognizable injury that is recognized under Colorado law.
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