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Colorado Criminal Law – Withdrawing A Guilty Plea – Two recent cases (2010 – 2013) have greatly impacted Colorado law regarding the withdrawal of a plea and a conviction in the face of what are called collateral consequences – here I address the deportation of the individual who -after pleading guilty to a crime – may not understand that it could lead to serious immigration consequences.
The two cases are Padilla v. Kentucky and Chaidez v. United States.
In Padilla v. Kentucky (2010), the Supreme Court held that it is ineffective assistance of counsel under the Sixth Amendment to fail to inform a client – a criminal defendant – of the immigration consequences of a criminal conviction before entering into a criminal plea agreement.
This year – 2013 in Chaidez v. United States - unfortunately the Supreme Court held that the Padilla holding will not apply retroactively to criminal convictions entered before March 2010. That decision – that Padilla will not apply retroactively – will impact thousands of individuals seeking to withdraw from plea deals for cases where the convictions entered before March 2010.
The Obama administration’s crackdown on so called “criminal aliens” has led to many removal actions. Now even lawful permanent residents facing removal will be directly affected by Chaidez and will suffer significant hardships.
Certain rules apply in Colorado before attempting to withdraw from a plea. They are reviewed now.
Withdrawing from a plea in Colorado holds out the promise of a resolution of certain immigration issues – but it is not a perfect solution. Before getting there – we have to look at how a plea is withdrawn in Colorado.
In some cases, withdrawing your guilty plea may resolve your immigration issues.
Once a plea is entered – especially if a conviction has entered, you have no “right” to withdraw from your plea agreement – other rules apply after the plea is entered which include establishing reasons or “grounds” for withdrawing your guilty plea.
Different rules – laws – apply for attempting to withdraw from a Colorado guilty plea depending on the timing of the attempt. If you file a motion to withdraw your plea before sentencing,
you must establish a much lower standard for the judge than AFTER you have been sentenced. The standard is “a fair and just reason for withdrawing your guilty plea.”
Examples of “fair and just reasons” are plentiful. Obviously not advising you of the immigration consequences of your plea is now – after the Padilla case – a denial of your constitutional right to effective assistance of counsel. That is a lawyer has fallen below the minimum requirements to perform his or her job – if the lawyer failed to properly advise you of the immigration consequences of pleading guilty.
The defendant has the burden to demonstrate a “fair and just reason” for the change.
Some examples of circumstances which will possibly justify the withdrawal of guilty plea are where a “plea was entered through fear, fraud, or official misrepresentation; or where it was made involuntarily”
BUT a defendant may not withdraw plea merely because he or she discovers the prosecution’s case is weaker than it once appeared. Or they have changed their mind.
The procedures the Court will follow in addressing whether to allow you to withdraw from a Colorado guilty plea are governed by Colorado Rule of Criminal Procedure Rule 32(d) (Crim. P. 32(d).)
Here is the rule reprinted for you to read:
(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.
To be successful – you should retain a lawyer to file the necessary petition and to subpoena witnesses and to conduct the hearing on your behalf – do not delay.
In this scenario – you have changed your mind AFTER you were sentenced but BEFORE the time bar (below) has run . This is considered a post – conviction proceeding. The judge that will hear your motion to withdraw your plea is the SAME JUDGE who accepted your plea and who sentenced you.
After you have filed your post conviction pursuant to Crim. P. 35 ( c ), the judge will conduct an “evidentiary hearing” where he or she will permit you to prove the claims in your petition.
(1) If, prior to filing for relief pursuant to this paragraph (1), a person has sought appeal of a conviction within the time prescribed therefor and if judgment on that conviction has not then been affirmed upon appeal, that person may file an application for post conviction review upon the ground that there has been a significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.
(2) Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make application for postconviction review upon the grounds hereinafter set forth. Such an application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon:
(I) That the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state;
(II) That the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;
(III) That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
(V) That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice;
(VI) Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or
(VII) That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release.
If the basis for your petition is the fact that your lawyer never advised you of the immigration consequences of your plea deal – this is when you assert that claim. As reviewed above – the basis for the claim is a denial of your constitutional right to effective assistance of counsel under the 6th amendment.
You will also have to establish that you suffered prejudice because of the lawyer’s error
Prejudice is established here by asserting – then proving to the judge – that you would not have pleaded guilty if your lawyer had made you aware of the devastating immigration consequences of the conviction.
In this situation – Colorado law throws up tow additional impediments to the withdrawal of your plea if you raise the issue AFTER you have been sentenced.
They are the:
(1) The TIME BAR
and – or
(2) The “SUCCESSIVE PETITIONS” bar.
In most felony cases, you have three years to file your motion to withdraw your guilty plea. For a misdemeanor, you have eighteen months, and, for a petty offense, you have six months.
The statutory time period BEGINS on the exact date you were sentenced, or – if there is a delay in the court order entering the sentence – the date of the court order also known as the issuance of the “mandate” – (this is usually only delayed if there is a direct appeal of the conviction or of the sentence.)
Here Is The Law In This Area:
(1) Except as otherwise provided in subsection (2) of this section, no person who has been convicted as an adult or who has been adjudicated as a juvenile under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction or adjudication unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction, or for purposes of juvenile adjudication the applicable time period will begin at the time of the juvenile’s eighteenth birthday:
All class 1 felonies: No limit
All other felonies: Three years
Misdemeanors: Eighteen months
Petty offenses: Six months
(1.5) If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in subsection (1) of this section, the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court.
(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:
(a) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the subject matter of the alleged offense;
(b) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the person of the defendant or juvenile;
(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant or juvenile to an institution for treatment as a person with a mental illness; or
(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.
If you miss the above deadline you now have to go further than either of the scenarios above ( ore-sentencing and post sentencing but before the time deadline). Now – to succeed – the grounds to establish on of the exceptions as a way around the time bar are:
(1) the court did not have jurisdiction over the subject matter of the offense;
(2) the court did not have personal jurisdiction over you;
(3) you were adjudicated incompetent or committed to an institution for treatment of mental illness;
(4) the failure to timely file the motion was a result of justifiable excuse or excusable neglect.
You also have to persuade the court – in addition to the statutory time bar above – a reason why – if (1) you raised the issue in your direct appeal (if one was filed – and lost) – you did not raise the issue
(2) you could have raised this issue in a prior appeal or post-conviction proceeding, why you DID NOT raise the issue then.
In my line of work there is something we call a Pyrrhic victory – that is winning the battle but losing the war. You must be aware that if you withdraw from your plea agreement – the original charges are fully reinstated and there are no agreements to lessen the impact of a conviction if the case goes to trial and you lose. Beware then – the consequences of withdrawing from the plea agreement. They may actually be more severe than the original guilty plea itself.
Upon the dissolution of the plea agreement – all dismissed charges are reinstated. In some cases those charges may be much more serious than the charge you to which you agreed to plead guilty.
Furthermore – since all of the original charges are reinstated – if you are then convicted of those charges, the consequences may also have a more serious impact on your immigration status than the original plea agreement. A nightmare scenario is you are convicted of all the charges – are sentenced to a long prison sentence and THEN you are deported after you have served that sentence.
While a criminal defense lawyer has what is considered to be broad authority to determine what strategy to employ in the defense of a case, the most ” fundamental constitutional rights” are reserved to a defendant personally. The decision to enter a guilty plea is among those “fundamental choices that must be decided by the defendant alone.” Others include whether to testify, whether to waive jury trial, or whether to take an appeal.
The rules of ethics that bind all lawyers in Colorado – Colo. RPC 1.2(a) provides – that a lawyer in a criminal case shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered.
If the trial or lower court judge refuses to grant a Motion to Withdraw, it is unlikely to be overturned on appeal. Thus you will probably have only “one good bite at the apple.”
We know that to warrant a change of plea before entry of a sentence, there must be some showing that denial of the request will subvert justice and that the burden of demonstrating a “fair and just reason” for the change rests on the defendant.
What you also need to know is that a motion to withdraw a plea of guilty is addressed to “the sound discretion of the court.” With that – you need to know that “absent an abuse of that discretion, a reviewing court – a higher court – will not overturn the denial of a motion to withdraw a guilty plea. This is a very tough standard – to constitute an abuse of discretion, a court’s ruling must be “manifestly arbitrary, unreasonable, or unfair.”
It is nearly impossible for a reviewing court to find that – based on the record – a trial court’s order was “manifestly arbitrary, unreasonable or unfair.”
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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.
In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277.
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