August 21, 2019

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment under Crim. P. 32(d)

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, April 19, 2018.

Deferred Judgment—Crim. P. 32(d)—Jurisdiction—Immigration Consequences—Ineffective Assistance of Counsel—Withdrawal of Plea.

As relevant to this appeal, defendant pleaded guilty to possession of a schedule II controlled substance. The parties stipulated to a two-year deferred judgment. The court accepted the deferred judgment and sentenced defendant to two years of probation. About five months later, defendant filed a Crim. P. 32(d) motion to withdraw his guilty plea, arguing that his counsel failed to advise him of the clear immigration consequences of the plea and claiming that if he had been properly advised, he would have rejected the offer. After an evidentiary hearing, the district court denied the motion.

On appeal, the People argued that the court of appeals did not have jurisdiction to review the trial court’s order because the motion challenged a non-final judgment. Although a deferred judgment may not be subjected to either Crim. P. 35 or direct review while it is still in effect, a defendant may challenge an unrevoked deferred judgment under Crim. P. 32(d). Further, the Court had jurisdiction to review the district court’s denial of a motion to withdraw a guilty plea because that motion challenged a deferred judgment still in effect.

Defendant argued that his guilty plea was not made knowingly, voluntarily, and intelligently because his counsel never informed him of the clear immigration consequences of the plea. Here, the record supports the district court’s finding that defendant’s criminal attorney and immigration attorney both told defendant on multiple occasions that a guilty plea to a drug felony would result in deportation. Because counsel’s performance was not deficient, the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

Defendant also argued that counsel should have advised him that he would be held in custody during the removal proceeding. The court found no authority that would require counsel to give this advice, and defendant failed to explain how such an advisement would have affected his decision to accept the plea offer.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

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