State v. Mutwale, 2013 VT
61
Some law simply has a limited shelf life.
Today’s hot button issue is tomorrow’s resolved
dispute.
When the SCOV dedicates decision after decision to flushing
out an area of law, one result is that the uncertainties go away and the
challenges become fewer to the point where the succeeding challenges are left
with little ground and quickly dissolve in short and brief decisions.
About eight years ago there was a substantial issue about
plea bargains, collateral consequences, and non-citizens. The federal government had adopted statutes
and regulations that revoked a non-citizen’s immigration or naturalization
status if he or she was convicted of a violent crime.
What constituted a violent crime was somewhat
ambiguous. Murder, certainly, but certain
domestic assaults were also included.
Other crimes, if they demonstrated violent actions, might also bring around
the federales.
In some cases, Defendants were swept into INS custody
minutes after leaving the courthouse, literally packed into a van around the
corner from the front steps. The problem
became that the list of deportable crimes was and is controlled and administered
by the Feds while the criminal processing (arraignment, plea bargaining, and
sentencing) was and is under the direction of the State and County.
The result was a number of plea bargains that purchased the
defendant a real-life version of Crossing Over
minus Harrison Ford.
The problem for the system is that in the beginning most
defendants, defense counsels, prosecutors, and judges were unaware of this substantial
collateral consequence. Most of the early
cases that really dissected the issue dealt with individuals who had plead guilty
to minimize their risk of imprisonment, only to learn that the year in jail
they had avoided had cost them, without warning, their entire lives in this
country.
That violated the purpose of court sentencing in plea
bargains. The trial court’s role in such
instances is to make sure that the Defendant knowingly and voluntarily enters
into the plea deal. Unstated or mutually
unanticipated consequences of a plea are often grounds to setting such a deal
aside or for the court to reject a plea agreement.
In the wake of these cases, the trial courts began
incorporating this warning into their review of plea agreements. The result, as we see today, is that
defendants are put on notice.
This means that no matter how severe the consequence or
deportation, the plea will not be set aside because the defendant has been
warned.
In this case, Defendant was explicitly warned by the trial
court that the plea deal could lead to his deportation or denial of
citizenship. Defendant acknowledged this
risk but chose to go ahead with the plea.
When Defendant was faced with immigration consequence, he sought to
withdraw his plea. The SCOV rejects this
move. Defendant had his warning, and
that is enough to uphold the plea.
So Defendant must live with the bargain he struck, buyer’s
remorse is relegated to a small part of the pantomime. But what is interesting is that the issue at
the heart of this case, collateral consequences to non-citizens, has become self-evident—a
non-issue that barely gives the SCOV pause.
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