Thursday, March 17, 2016

Unintended Long-Term Vacation: The Consequences of Pleading Guilty and Deportation

State v. Sergio Mendez 

            This case is all about semantics. You say car, I say automobile. You say violin, I say fiddle. You say “may affect your ability to remain in the country,” I say “deportation.” The issue surrounds whether using “clearly equivalent language” is sufficient in lieu of saying outright “deportation.” For the sake of brevity: can you beat around the legal bush with words? I looked at inter-web sites that gave me the following synonyms for “deportation”: displacement, eviction, expulsion, extradition, removal, exile, expatriation, ostracism, and relegation (the winner is expatriation in my book). While I think judicial colloquy could be spiced up a little pizzazz (perhaps a recitation of a defendant’s rights in a Biggie Smalls-esque flow? Or informing them of their “Fif” Amendment right via Chappelle’s Show, but making them stale, sterile, and boring with formalistic language isn’t the answer (and so too agrees the SCOV).

            Defendant was a legal, permanent resident of Massachusetts and is a citizen of the Dominican Republic. He pleaded guilty to felony domestic assault in Rutland, VT in June 2013. He “signed a written plea agreement prior to the change-of-plea hearing that read, in part: ‘I understand that if I am 2 not a citizen of the United States of America, admitting to facts sufficient to warrant a finding of guilt or pleading guilty or nolo contendere (no contest) to a crime may have the consequences of deportation or denial of United States citizenship,’” and (during the colloquy) the judge stated: “Do you understand that if you’re not a United States citizen, this conviction could affect your ability to remain in the country, obtain your U.S. citizenship or reenter the country?” to which the Defendant stated “I understand.” After Defendant was released on probation, the feds “issued a detained to place him into deportation proceedings upon completion of his sentence.” In October 2013, Defendant had two incidents (the first he went back to Massachusetts before the police showed up) that involved domestic assault. In August 2014 Defendant pleaded guilty to both VOP and misdemeanor domestic assault. Again, he “signed a written plea agreement prior to the change-of-plea hearing” and the language was the same as language used in June 2013.
            However, the judicial colloquy went as follows (here comes the wrinkle): “Then, using slightly different language as compared to the prior change-of-plea colloquy, the court orally advised defendant: Now do you understand that if you’re not a United States citizen, that a new conviction and the probation violation may affect your ability to remain in the country, obtain U.S. citizenship or reenter the country?” (emphasis my own). Defendant’s response as “I understand that.” While serving his sentence, Defendant filed motion to withdraw his pleas “on the basis that the court had not properly advised him that deportation was a risk of pleading guilty” and the trial court denied the motion. Defendant appealed to the SCOV.  
            On appeal, Defendant argues that Vermont Rules of Criminal Procedure (V.R.Cr.P.) 11 and a criminal procedure statute don’t allow for judicial frolicking with language as “it is open to multiple interpretations” and “‘deportation’ carries precise weight and meaning for immigrants and would have ‘triggered a gut check’ for defendant.” I can relate: whenever the media reports on Trump inevitable march to the White House, I, too, have a “gut check” about the pros and cons of “deportation.”   
            At the penumbra of this case is the issue of what needs to be stated to a defendant so that they are properly educated and can make a knowing and voluntary plea. We at SCOV Blog seek to help the judiciary out when we can (whether they ask for it or not – usually they don’t) and I have compiled other advisements under V.R.Cr.P. 11 (also called “collateral consequences”) that the court should consider giving if someone wants to plead guilty or change a plea to guilty: (1) Jail food doesn’t taste that good; (2) While you will get to experience that “orange is the new black,” your ability to view Netflix may be limited in prison; (3) Remember how much you didn’t like living with your college roommate? You may not like your new cellmate either; and (4) They may not let you modify state trooper vehicle decals in the print shop The judiciary can thank me later for these great ideas.
            Back to the case: the criminal procedure statute in question (enacted in 2005 and later required by the SCOTUS in Padilla v. Kentucky requires that the court “warn defendants of possible collateral consequences of a conviction on their immigration status.” However, a previous SCOV case noted that “Rule 11 does not require the court to recite this [collateral consequence] language verbatim” and “the [Vermont] Legislature rejected earlier draft of …[criminal procedure statute] that would have compelled the court to use exact language in advisements.” Instead, the court has a dual role here: explain the possibility of deportation and making sure the defendant understands the explanation. The SCOV only goes so far as to say that, in the trial court’s discretion with advisements, the trial court “must substantially comply” with V.R.Cr.P. 11 and “the court is not required to recite its language verbatim.”
            The SCOV looks at the record and sees that the trial court complied with V.R.Cr.P. 11. They view the “phrase ‘affect your ability to remain in the country’” as being “sufficient in and of itself to explain the possibility of deportation.” Finally, the SCOV noted that Defendant “unequivocally stated during the plea colloquies that he understood the court’s advisements” and the Defendant didn’t question the court’s colloquy with him.
            Justice Dooley’s concurrence is…well…all about the standard of review. The basic idea of standard of review can be illustrated by the following analogy: imagine a judge is looking at a paper-version of an opinion on a desk and they are scrutinizing the decision. However, the standard they will use is on a gradient. Less robust review is like having the desk lamp turned down to almost dark, to the point where it is a cursory review because they don’t really see too much. More robust review is the opposite, with the lamp’s lumens cranked up and the judge can really read the decision. Justice Dooley is advocating for a standard of review then was used and Justice Robinson also agrees.

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