September 22, 2018

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.

Colorado Court of Appeals: Defendant May Challenge Unrevoked Deferred Judgment, and Court Has Jurisdiction to Review District Court’s Denial

The Colorado Court of Appeals issued its opinion in People v. Figueroa-Lemus on Thursday, January 25, 2018.

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

Defendant pleaded guilty to possession of a schedule II controlled substance and driving under the influence (DUI). The parties stipulated to a two-year deferred judgment on the possession count and probation on the DUI count. 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 to the possession count, arguing that his defense and immigration counsel were ineffective for failing to advise him of the clear immigration consequences of the plea. After an evidentiary hearing, the district court denied the motion.

The People filed a motion to dismiss the appeal, arguing that there was no jurisdiction to review the order denying the Crim. P. 32(d) motion. They contended that the order was not final and appealable because defendant’s motion challenged a deferred judgment (a non-final judgment) that had not been revoked when the court entered the order or when defendant filed the notice of appeal. Under Crim. P. 32(d), a defendant may challenge a guilty plea involving a deferred judgment that is still in effect. The court of appeals concluded it could review the district court’s order denying the Crim. P. 32(d) motion.

Defendant argued on appeal 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. The record supports the district court’s finding that defendant’s counsel advised him on multiple occasions that a guilty plea to a drug felony would result in deportation. The court also rejected defendant’s argument that counsel should have advised him that he would be held in custody during the removal proceeding, because counsel was not required to give this advice. Therefore, counsel’s performance was not deficient, and the district court did not abuse its discretion when it denied the Crim. P. 32(d) motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Juvenile Court Magistrate Has Jurisdiction to Consider Motion to Withdraw Previous Guilty Plea

The Colorado Court of Appeals issued its opinion in People in Interest of J.D. on Thursday, December 14, 2017.

Juvenile Delinquency—Plea Agreement—Ineffective Assistance of Counsel—Withdrawal of Plea—Magistrate—Jurisdiction.

J.D. appeared before a magistrate in a delinquency case. He was represented by counsel and signed an “advisement of rights in a juvenile delinquency proceeding” and pleaded guilty to acts that if committed by an adult would have constituted second degree criminal trespass. The magistrate accepted the plea and entered a one-year deferred adjudication. After the prosecution sought restitution and J.D. failed to file an objection within the deadline, the magistrate ordered restitution. Four months later and through new counsel, J.D. moved to withdraw his guilty plea under Crim. P. 32(d) based on ineffective assistance of plea counsel for improperly advising J.D. as to the likely restitution amount and the bankruptcy consequences of restitution, as well as failing to formally withdraw as J.D.’s counsel. The magistrate granted the motion and vacated the plea. On review, the district court judge held that the magistrate lacked jurisdiction to hear J.D.’s motion and vacated the order.

On appeal, J.D. argued that the magistrate had authority to enter the order withdrawing his guilty plea and the district court erred in vacating that order. Because the issue of which judicial officers have authority in particular cases is substantive, not procedural, the Children’s Code prevails over any conflicting provisions in the Colorado Rules for Magistrates. The Children’s Code authorizes the juvenile court to appoint magistrates “to hear any case or matter under the court’s jurisdiction, except where a jury trial has been requested . . . .” The magistrate had jurisdiction to consider J.D.’s Crim. P. 32(d) motion.

The district court’s order was reversed and the magistrate’s order vacating the plea was reinstated. The case was remanded to the district court to address the merits of the People’s petition to review the magistrate’s order under C.R.S. § 19-1-108(5.5).

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Crim. P. 32 Does Not Authorize Withdrawal of Guilty Plea After Completion of Deferred Judgment

The Colorado Supreme Court issued its opinion in People v. Corrales-Castro on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Osvaldo Corrales-Castro pleaded guilty to criminal impersonation and received a one-year deferred judgment. He successfully complied with the terms of the deferred judgment, and in May 2010, the court withdrew his guilty plea and the charge was dismissed with prejudice pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment],” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2013, Corrales-Castro filed a motion to withdraw his guilty plea pursuant to Crim. P. 32(d), which authorizes “a motion to withdraw a plea of guilty . . . before sentence is imposed or imposition of sentence is suspended.” The district court denied the motion and the court of appeals reversed, holding that Crim. P. 32(d) authorizes the withdrawal of an already withdrawn plea. The supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Corrales-Castro’s plea. Accordingly, the supreme court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Completion of Deferred Judgment Withdraws Guilty Plea as Matter of Law

The Colorado Supreme Court issued its opinion in Espino-Paez v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jose Espino-Paez pleaded guilty to the use of a schedule II controlled substance and received a deferred judgment. When he successfully completed the terms of the deferred judgment, his guilty plea was withdrawn and the charge was dismissed with prejudice. In 2012, Espino-Paez filed a motion to withdraw his plea pursuant to Crim. P. 32(d). The district court denied the motion, and the court of appeals affirmed, holding that the district court had no authority to withdraw the plea because it had already been withdrawn. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Espino-Paez’s plea. Accordingly, the supreme court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Motion to Withdraw Guilty Plea Properly Denied After Completion of Deferred Judgment

The Colorado Supreme Court issued its opinion in Zafiro-Guillen v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Edgar Zafiro-Guillen pleaded guilty to possession of one gram or less of a schedule II controlled substance in exchange for a two-year deferred judgment. In 2009, upon successful completion of the terms of the deferred judgment, the district court withdrew Zafiro-Guillen’s guilty plea and dismissed the case with prejudice. In 2013, Zafiro-Guillen filed a motion to withdraw his guilty plea pursuant to Crim. P. 32(d). The district court denied the motion, holding it lacked jurisdiction. The court of appeals affirmed. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Zafiro-Guillen’s plea. Accordingly, the court affirmed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Guilty Plea Cannot be Withdrawn Once Deferred Judgment Completed

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Eloisa Roman pleaded guilty to criminal impersonation and received a two-year deferred judgment. She successfully completed her deferred judgment, and her plea was withdrawn and the case was dismissed. In 2013, she filed a motion under Crim. P. 32(d) seeking to withdraw her plea. The trial court denied her motion, and the court of appeals reversed, holding that Rule 32(d) authorized the district court to withdraw Roman’s previously withdrawn plea. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Roman’s plea. Accordingly, the court reversed the court of appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Successful Completion of Terms of Deferred Judgment Automatically Withdraws Guilty Plea by Operation of Law

The Colorado Supreme Court issued its opinion in Flores-Heredia v. People on Monday, June 5, 2017.

Criminal Law—Withdrawal of Guilty Plea—Crim. P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jesus Flores-Heredia pleaded guilty to inducement and conspiracy to sell and possess with intent to sell a schedule II controlled substance, and he received a one-year deferred judgment in 1990. Although he successfully completed the deferred judgment in 1991, no court ever ordered his plea withdrawn or the action against him dismissed pursuant to C.R.S. § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment]” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2014, Flores-Heredia filed a motion to withdraw his plea pursuant to Crim. P. 32(d). The district court concluded that because no order had been entered withdrawing Flores-Heredia’s plea and dismissing the charge under C.R.S. § 18-1.3-102(2), it would enter such an order. The court then denied the Rule 32(d) motion, concluding that it could not withdraw the plea because the plea had already been withdrawn.

The supreme court held that C.R.S. § 18-1.3-102(2) requires that a plea be deemed withdrawn and the charge dismissed once the deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law as mandated by C.R.S. § 18-1.3-102(2). Therefore, Flores-Heredia’s plea was withdrawn by operation of law when he successfully completed the deferred judgment in 1991. Further, for the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the supreme court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Flores-Heredia’s plea. Accordingly, the Court affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Entry of Guilty Plea Equates to “Found Guilty” for School Board Vacancy Statute

The Colorado Court of Appeals issued its opinion in Esquibel v. Board of Education Centennial School District on Thursday, January 14, 2016.

Augustine Esquibel was a director on the Centennial School Board. In 2011, while he was on the board, he pleaded guilty to resisting arrest and felony cocaine possession and received a deferred judgment. Approximately two weeks after he entered his plea, the Board declared his seat vacant based on a director vacancy statute that provides a seat shall be deemed vacant if a director is found guilty of a felony. Esquibel sought a preliminary injunction to prevent enforcement of the Board’s declaration, arguing that he would only be “found guilty of a felony” if he failed to comply with his plea agreement. The district court disagreed and ruled Esquibel was not likely to prevail on the merits. On appeal, the court of appeals analyzed the statutory language and determined that Esquibel was “found guilty” when he entered his guilty plea.

The court of appeals affirmed the district court. Judge Hawthorne dissented; he would have excluded a plea of guilty from the meaning of “found guilty of a felony” in the director vacancy statute.

 

Tenth Circuit: District Court Lacked Jurisdiction to Take Any Action After Sentencing on Guilty Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Spaulding on Tuesday, September 1, 2015.

In May 2011, ATF agents learned that A.J. Aldridge was willing to sell firearms and methamphetamine. An undercover agent arranged to purchase a gun and some meth from Aldridge, and met with Aldridge and his supplier, Robert Blankenship. Blankenship declined to sell the agent a gun because he was concerned the agent was an undercover officer, but he sold some meth. A short time later, the agent again contacted Blankenship and arranged to buy more meth. Blankenship said he would send a relative to deliver the meth. When the agent arrived at the pickup location, Michael Spaulding pulled into the parking lot and the agent completed the transaction. Spaulding, Blankenship, and Aldridge were subsequently arrested and charged with distribution of methamphetamine and conspiracy to distribute methamphetamine. Spaulding entered into a plea deal with the government, agreeing to plead guilty to distribution and to cooperate in the prosecution of his co-defendants. In exchange, the government agreed to recommend a three-level decrease in Spaulding’s offense level and move for a downward departure for substantial assistance, creating an advisory sentencing range of 77 to 96 months.

Spaulding entered his guilty plea and the district court judge requested the preparation of a presentence report (PSR). The PSR computed Spaulding’s guidelines range as 110 to 137 months. At the sentencing hearing in December 2012, the government moved for a downward departure, which the district court nominally granted. The district court denied Spaulding’s motions for downward departure and adjustment for acceptance of responsibility. The district court sentenced Spaulding to 137 months, the top of the guidelines range, because of his extensive criminal history. When the government asked the district court to consider its § 5K1.1 motion, the district court said it had considered it and was not following the government’s recommendation. Spaulding then moved to correct the sentence or to alternatively allow him to withdraw his guilty plea. The district court granted his motion to withdraw his guilty plea, and Spaulding entered into another plea agreement with the government, again with the goal of reaching a guidelines range of 77 to 96 months. At the subsequent sentencing hearing, the district court entered two sentences of 137 months each to run concurrently. Spaulding appealed to the Tenth Circuit, contending the district court erred in rejecting his second plea agreement and refusing to consider the guidelines in sentencing.

On appeal, the Tenth Circuit noticed a jurisdictional defect and requested that the parties brief the issue of whether the district court had jurisdiction under Rule 11(e) to take any action after entering sentence on the first guilty plea. The government argued that the district court had lost jurisdiction after entering Spaulding’s sentence, and that the proper remedy would be to remand to the district court to vacate all orders entered after the December 2012 sentencing hearing. Spaulding argued that since the district court had entered its order allowing him to withdraw his guilty plea nunc pro tunc it had retained jurisdiction over subsequent actions, and also that his motion to withdraw was a collateral attack on his conviction and collateral attacks do not implicate Rule 11(e).

The Tenth Circuit evaluated Rule 11(e) and determined it is jurisdictional. Rule 11(e) advises “After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.” Because the court had imposed its sentence in December 2012, it lacked jurisdiction to allow Spaulding to withdraw his guilty plea. The Tenth Circuit found it was of no consequence that the district court’s sentence was entered orally. The Tenth Circuit addressed Spaulding’s argument that Rule 11(e) was not implicated in this case and disagreed. The Circuit found that although the district court’s order allowing Spaulding to withdraw his guilty plea was issued nunc pro tunc, it did not have jurisdiction to consider the motion because of Rule 11(e)’s bar. The Tenth Circuit found that the appropriate remedy was to remand to the district court to vacate all actions taken after the December 2012 sentence was entered. At that time, Spaulding would be able to file a direct appeal.

The Tenth Circuit remanded to the district court to reinstate its December 2012 sentence and vacate all other orders issued after that date. Judge Gorsuch wrote a thoughtful dissent, noting that some circumstances justify allowing case-by-case evaluation of jurisdiction.

Tenth Circuit: Plaintiff Cannot Bring § 1983 Claim for Damages if it Renders Conviction Invalid

The Tenth Circuit Court of Appeals issued its opinion in Havens v. Johnson on Wednesday, April 15, 2015.

In January 2007, the Denver Metro Auto Theft Team Task Force planned a sting to arrest Darrell Havens, who had arranged to sell a stolen Audi in an alcove behind a Target store. Havens drove the Audi into the icy alcove, where officers surrounded him in other vehicles and on foot. Several vehicles rammed into the Audi from many directions. At one point, Officer Johnson, who was not in a vehicle, was directly in front of the Audi and fired shots at the driver, leaving him a paraplegic. Havens testified at deposition that he did not have control of the Audi after it was hit the first time and did not make any other maneuvers, but other officers testified the Audi was accelerating toward Officer Johnson and about to pin him against another vehicle when he fired the shots. Officer Johnson testified that he thought he was about to be crushed by the Audi, which was accelerating toward him, and fired into the windshield to stop the driver. Havens was left a quadriplegic after the shooting.

After the incident Havens was charged with multiple crimes. He pleaded guilty to attempted first-degree assault of Johnson, among other charges. At the plea hearing, the court insisted on a record that Havens admitted committing the crimes and was pleading guilty to them. His attorney said he had no recollection of the incident because of the serious injuries he suffered that night. The court then asked Havens if he knew what he was pleading guilty to and he said yes. Havens filed a motion for postconviction relief in state court, arguing that his plea was not knowing, intelligent, or voluntary. The state court denied the motion and the court of appeals affirmed. The Colorado Supreme Court denied certiorari. Havens then filed a § 1983 action against Johnson in federal district court, denying any wrongdoing by Havens and asserting the criminal prosecution was bogus. The district court granted summary judgment to Johnson, finding Havens failed to establish a prima facie case of excessive force and Johnson was entitled to qualified immunity. Johnson argued in the alternative that Havens’ guilty plea supported summary judgment on grounds of issue preclusion, judicial estoppel, and Heck, but the district court denied the other grounds.

The Tenth Circuit affirmed summary judgment on a different ground, finding that Heck required judgment for Johnson and that the Heck defense was properly before the Tenth Circuit because it had been raised and fully briefed below and he raised it again on appeal. Heck was a Supreme Court case where the Court ruled a plaintiff could not bring a § 1983 claim for damages if it rendered a criminal conviction invalid. In this case, Havens’ § 1983 claim asserted no wrongdoing on the part of Havens, instead attributing all fault to the officers. Havens’ version of the events could not sustain a conviction for attempted first-degree assault, and his theory of innocence is barred by Heck.

The Tenth Circuit acknowledged that Havens’ plea was a nolo contedere plea, not a typical guilty plea, but found the Heck doctrine survived by the existence of a valid conviction, not the mechanism by which that conviction was obtained. In a lengthy footnote, Judge Hartz related his concerns with the effect the nolo contendere plea would have on Johnson’s issue preclusion and judicial estoppel arguments, but this footnote was not joined by the rest of the panel.

The Tenth Circuit affirmed the district court’s summary judgment.

Colorado Court of Appeals: Defendant Has Right to Withdraw Plea as Void Ab Initio Even When Deferred Judgment Completed

The Colorado Court of Appeals issued its opinion in People v. Corrales-Castro on Thursday, March 26, 2015.

Deferred Judgment—Successful Completion of Sentence—Withdrawal of Guilty Plea—Jurisdiction—Immigration Consequences—Voluntary—Unconstitutional—Ineffective Assistance of Counsel.

In 2009, defendant pleaded guilty to criminal impersonation and DUI. The district court imposed a one-year deferred judgment and sentence on the criminal impersonation count, and one year of probation on the DUI count. In 2010, defendant successfully completed the conditions of the deferred judgment and probation. The district court withdrew the guilty plea on the criminal impersonation count, dismissed that count, and closed the case. In 2013, defendant filed a Crim.P. 32(d) motion to withdraw his guilty plea to criminal impersonation, alleging ineffective assistance of counsel. The district court denied the motion, holding that it lacked jurisdiction to consider defendant’s motion to withdraw his guilty plea.

On appeal, defendant argued that the district court erred when it held it did not retain jurisdiction to consider his motion. When a guilty plea that is withdrawn after the successful completion of a deferred judgment may nevertheless result in the removal of a defendant from the United States (or the defendant’s inability to re-enter the country), Crim.P. 32(d) authorizes the defendant to challenge the constitutionality of the plea, regardless of its prior withdrawal. Here, defendant claimed that ineffective assistance of counsel rendered his guilty plea involuntary and thus unconstitutional because his defense counsel had failed to inform him that his guilty plea to criminal impersonation could have negative federal immigration consequences, even if he successfully completed the conditions of the deferred judgment. Furthermore, under the circumstances presented here, a Crim.P. 32(d) motion is not subject to the time limits of CRS § 16-5-402(1), and defendant’s motion is not time barred by that statute. Accordingly, the district court retained jurisdiction to decide defendant’s motion, the order denying defendant’s motion to withdraw his guilty plea under Crim.P. 32(d) was reversed, and the case was remanded for a determination of defendant’s Crim.P. 32(d) motion.

Summary and full case available here, courtesy of The Colorado Lawyer.