Stuck

Barbados

In re Reco Jones, 2020 VT 9

By Elizabeth Kruska

Practicing law is hard. Predicting what the federal government will do is also hard. Putting these things together can make situations that started as difficult even harder. That’s what happened here.

Mr. Jones is a citizen of Barbados. He came to the United States in 1976 when he was 16 years old. In 2012 he was charged with various allegations of sexual assault for assaulting his stepdaughter. He confessed to the actions.

Very early in the case the State told Mr. Jones’s attorney that if Mr. Jones were convicted that Immigration and Customs Enforcement (ICE) would take Mr. Jones into custody and begin deportation proceedings. Initially Mr. Jones wanted to be deported. Then he decided he wanted a trial in the case. There was some strategizing about whether or not Mr. Jones ought to plead guilty or go to trial.

Meanwhile, Mr. Jones’s attorney also made some inquires to ICE to determine if and when Mr. Jones would be deported if convicted. She got some information that ICE would wait 30 days after sentencing (to allow his appeal period to expire), and then he’d be removed from the country. However, the ICE attorney or authority didn’t give a timeline about when removal would actually happen. She didn’t also consult with an immigration attorney, although she did consult with a published guide about criminal charges and immigration consequences.

Mr. Jones pled to the charge and then was sentenced after a pre-sentence investigation was done. The State sought a sentence of twelve years to life. Mr. Jones’s counsel tried to get a lower sentence, but the state’s attorney was firm on twelve years, reasoning that Mr. Jones was likely soon going to be deported anyway.

The court sentenced Mr. Jones to 12 years to life. The pre-sentence investigation report called for him to do sex-offender treatment, and indicated he would be at a high risk to reoffend if he didn’t do the treatment. Nevertheless, the parties indicated on the record, as well, that it seemed very likely Mr. Jones would be deported, and if taken into ICE custody any state-level issues (treatment, etc.) would be out of their control.

The problem here turns out to be Mr. Jones’s ICE detainer. A detainer is communication from Jurisdiction A to Jurisdiction B asking Jurisdiction B to hold a prisoner on behalf of Jurisdiction A to address a legal issue there. In other words, A says, “Hey, friend, we see you’ve got Mr. Jones in your custody. We also have some business with Mr. Jones. Don’t let him out until we have a chance to connect with him and possibly take him to our jurisdiction.” We see this a lot, especially in the Upper Valley, where I live and have worked for a long time. For example, say someone gets in trouble in Vermont and then it turns out New Hampshire also wants them. If New Hampshire wants to extradite the person to face charges there, they may start by filing a detainer against the person if the person is already in a Vermont jail. That makes it so Vermont can’t let the person out of jail until New Hampshire has formally come to get them to address their charges there. This works the same with federal detainers, either in the criminal court system or with ICE.

Enter the Vermont Department of Corrections (DOC). DOC told Mr. Jones he wasn’t eligible for programming because ICE had an active detainer lodged against him. DOC has a policy that people with active ICE detainers are ineligible to participate in Vermont DOC programs.

And that’s how Mr. Jones got stuck. DOC isn’t going to provide programming to a person who is likely to be deported because the person isn’t going to be eligible to be paroled back into the community. And the sentence of 12 years to life made it likely that ICE was never going to deport Mr. Jones because his sentence would never be finished during his lifetime.

Mr. Jones filed a petition for post-conviction relief, alleging ineffective assistance of counsel. A hearing was held, and the PCR court found that even if the attorney had gotten other information from an immigration attorney, it wasn’t certain this information would have had a different impact on the outcome. It’s never certain if or when ICE will take someone into custody.

The PCR court did send the case back for a continuation of the sentencing hearing, though, because the part about DOC’s policy of not providing programming to people with ICE detainers would likely have been important for the sentencing judge to know. It seems, given the statement in the PSI report that without programming Mr. Jones would be at risk to reoffend, that the availability of programming was probably an important consideration.

Mr. Jones appeals, and argues that because he didn’t have all the information at the time of his plea that his plea wasn’t voluntary. SCOV agrees, and vacates his plea.

The standard of review in a PCR is clear error. If there are findings and sufficient evidence to support the findings, the reviewing court will uphold the lower court unless the trial court made a clear error. This is a pretty big hurdle. SCOV indicates it doesn’t think the findings were supported by the evidence, and that compels vacating the conviction.

First, SCOV finds that the plea wasn’t voluntary. The information about whether or not he would be deported became confusing. During the change of plea hearing it was represented that Mr. Jones “most likely” would be deported. However, earlier in the case, the information was that ICE would take Mr. Jones immediately into custody following a change of plea. The timing of his deportation—if it would happen at all—was unclear. SCOV concludes that not knowing that outcome rendered the plea involuntary.

Second, Mr. Jones would have believed if he wasn’t deported that he would be afforded programming within the Department of Corrections, likely sometime around his minimum sentence (so, just shy of 12 years in). He would also have had every reason to believe if he was not deported he would be eligible for treatment or parole.

When a PCR petitioner raises a claim that he or she relied on information regarding release eligibility as a basis for the petition, and it turns out the information is wrong he or she has the burden of proving the plea was entered while (a) relying on that material misunderstanding and (b) that the material misunderstanding worked to his or her prejudice. The misunderstanding can’t just be “Oh, I didn’t get it” it has to be objectively incorrect information. It doesn’t have to go so far as to be a promise, so much as it has to be incorrect.

Here, the problem was that Mr. Jones relied on the fact if he was not deported he would be eligible for programming (and potentially parole). But DOC clearly has a policy indicating people with ICE detainers are not eligible for the program. And if someone does not complete his or her prescribed programming, that person is generally not eligible for parole at their minimum. Because it’s in a policy, it’s an objective impediment to Mr. Jones’s release. (In addition to the federal detainer that would prevent release, of course). So, Mr. Jones went in to his sentencing hearing believing he would serve 12 years to life, but what really emerged was an effective sentence of life without the possibility of parole.

The question then turns to whether or not this worked to prejudice Mr. Jones. The PCR court said it did not. If he had received different legal advice, and had tried his case, rather than pled to it, there’s no evidence that the outcome would have been different or that he would have gotten a better sentence.

SCOV rejects this rationale. First of all, it was clear from the outset this case was going to involve questions of deportation. It was a very substantive part of the case and plea discussions from the beginning. The mistaken belief that Mr. Jones could be eligible for release at his minimum if not deported had an impact on the entire bargaining process.

Second, the State didn’t argue for a sentence of life imprisonment without parole, and the court didn’t mean to impose that sentence. The court wanted Mr. Jones to engage in treatment, and encouraged him to do so. However, there wasn’t any information before the court that Mr. Jones would be unable to do the treatment because of the possibility of deportation, nor was there information that ICE would not deport him because of the length of the sentence.

So, SCOV reverses the PCR court here and vacates Mr. Jones’s conviction. The case goes back to the civil division (where the PCR happened) to be referred to the criminal division for further proceedings.