The court must inform the defendant prior to plea of the direct penal consequences of the plea.  When challenging a conviction for lack of advice concerning the consequences of the plea, it is somewhat more difficult to sustain the defense burden of proof because a showing of prejudice is required. 

 

            To prevail, it is necessary to establish:

 

(a) the court failed to advise the defendant of the direct penal consequences of the plea,

 

(b) the client was in fact unaware of these consequences, and

 

(c) the client would have refused to enter the plea if s/he had been properly advised of these consequences.

 

            The California courts have held that the failure to inform a defendant of the direct consequences of the plea is a judicially-declared rule of criminal procedure, not rising to the level of constitutional magnitude.[356]  As a result, any error regarding the direct consequences is subject to a harmless error analysis in state court.  Relief will not be granted unless the petitioner demonstrates a reasonable probability that s/he would have entered a different plea if properly advised.[357]

 

            The defendant must be informed of the following direct consequences:

 

(a) The maximum possible penalty that may be imposed as a result of the plea;[358]

 

(b) absolute or presumptive probation ineligibility;[359]

 

(c) the maximum period of parole defendant might have to serve after completion of any prison term imposed;[360]

 

(d) any mandatory requirement of registration, e.g., as a sex or narcotics offender;[361] and

 

(e) that the defendant cannot withdraw the plea even if the court fails to impose the expected sentence.[362]

 

Some courts have held, improperly, that even government misadvice concerning the deportation consequences of a plea does not justify vacating the conviction.[363]  These decisions are inconsistent with a host of authority.  See § 6.17, supra.[364]

 

The court is not required to advise defendants regarding collateral consequences that do not automatically flow from the conviction.  Thus, the court need not explain the availability of good time or work-time credits as a direct consequence of plea.[365]

[356] Bunnell v. Superior Court, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310 (1975); In re Yurko, 10 Cal.3d 857 (1974).

[357] People v. McMillion, 2 Cal.App.4th 1363 (1992).  This showing of prejudice requires evidence that defendant would not have entered the plea if s/he had been informed of the consequences that were omitted.  In re Ronald E., 19 Cal.3d 315, 137 Cal.Rptr. 781 (1977).  In the immigration context, this might include statements that the defendant would not have entered a guilty plea, or would instead have sought a non-deportable result, a sentence of less than one year, or a plea to an alternative offense that does not exhibit moral turpitude, and the like.  See California Criminal Law and Immigration, § 8.28.

[358] Hart v. Marion Correc. Instn., 927 F.3d 256 (6th Cir. 1991), cert. denied, 502 U.S. 816 (1991) (conditional habeas relief available where defendant was incorrectly informed by trial judge and counsel as to the maximum period of incarceration); Marvel v. United States, 380 U.S. 262 (1965); United States v. Roberts, 5 F.3d 365 (9th Cir. 1993); Chapin v. United States, 341 F.2d 900 (10th Cir. 1965); cf. Lane v. Williams, 455 U.S. 624, 630 and n.9 (1982) (reserving the question whether and under what circumstances a failure to inform a defendant of a mandatory parole term will invalidate a guilty plea); Hill v. Lockhart, 106 S.Ct. 366, 369 (1985) (dictum that failure to inform a defendant that his or her eligibility for parole is restricted because of a prior conviction would not invalidate a guilty plea); In re Birch, 10 Cal.3d 314 (1973).

[359] People v. Caban, 148 Cal.App.3d 706 (1983).

[360] In re Moser, 4 Cal.4th 342 (1993).

[361] The requirement that certain controlled substances offenders must register under California Health and Safety Code § 11590 must be disclosed to the defendant, prior to entry of the plea.  People v. Cotton, 230 Cal.App.3d 1072, 284 Cal.Rptr. 757 (1991).

[362] United States v. Benitez, 310 F.3d 1221 (9th Cir. November 25, 2002) (conviction reversed where district court failed to inform defendant he could not withdraw guilty plea if court did not accept sentencing recommendation set forth in plea agreement, in violation of Fed. R. Crim. P. 11(e)(2)).

[363] El-Nobani v. United States, 287 F.3d 415 (6th Cir. April 4, 2002) (misrepresentation by government regarding deportation consequences prior to plea does not justify habeas claim when plea not first challenged on direct review as deportation is collateral consequence to plea; arguments that IIRAIRA makes deportation mandatory, and thus not collateral, rejected since INS has prosecutorial discretion to bring case, and deportation is beyond control and responsibility of  district court).

[364] Chizen v. Hunter, 809 F.2d 560, 561-563 (9th Cir. Dec. 24, 1986) (plea involuntary where defense attorney misrepresented that court had committed itself to particular sentence and defendant relied on that representation; no prejudice required); Wanatee v. Ault, 101 F.Supp.2d 1189 (N.D. Iowa 2000) (to establish prejudice from trial counsel’s deficiencies in advising petitioner about a plea bargain, petitioner must show: (1) a plea agreement was formally offered by the prosecution; (2) petitioner would have accepted the plea agreement if he had been properly advised by counsel about the applicable law, which is an objective test, i.e., what a reasonable defendant would have done; and (3) petitioner could have performed any conditions attached to the agreement. The district court agrees with respondent that after-the-fact assertions by petitioner that a plea offer would have been accepted are insufficient in and of themselves to meet the prejudice standard. In finding that petitioner’s assertions were corroborated, the district court notes, among other things, that petitioner mounted an intoxication defense at trial rather than a complete denial of liability. This defense would at best have garnered him a conviction for second-degree murder, which was what the plea agreement was for. Finding a reasonable probability that petitioner could have satisfied the terms of the plea agreement, the district court concludes that petitioner is entitled to relief.).

[365] People v. Barella, 20 Cal.4th 248 (1999).

POST CON RELIEF - PLEA - NO CONTEST - MOTION TO WITHDRAW - USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS
The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsels failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial courts failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendants plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), affd, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force.      Applying these principles, the federal courts have consistently voided guilty pleas entered - as this one was - on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the governments attorney and the district judge confirmed that defendants understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.      The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was equipped intelligently to accept the plea offer made to him." Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401.      Thanks to Don Chairez for the suggestion for this argument.

Seventh Circuit

POST CON RELIEF - GROUNDS - COURT OR PROSECUTION AFFIRMATIVE MISADVICE CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding the mandatory parole provision in the plea bargain violated due process. See Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendants due process rights were violated when in the course of making a plea agreement the court misinformed him that he would not have to serve mandatory five-year parole term).

Ninth Circuit

POST CON RELIEF " GROUNDS " COURT'S FAILURE TO ADVISE
United States v. Delgado-Ramos, 635 F.3d 1237 (9th Cir. Apr. 7, 2011) (even after the Supreme Courts decision in Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a federal district courts failure to provide accurate immigration advice is not a violation of Rule 11 of the Federal Rules of Criminal Procedure nor a due process violation), continuing to follow United States v. Amador"Leal, 276 F.3d 511, 517 (9th Cir. 2002) (Rule 11 of the Federal Rules of Criminal Procedure and due process do not require a district court to inform a defendant of the immigration consequences of his plea).

Lower Courts of Ninth Circuit

POST CON RELIEF - GROUNDS - INVALID PLEA
In re Fonseca, 2006 Wash. App. LEXIS 643 (Wash. Ct. App. Apr. 11, 2006) (court vacated plea, because defendant did not enter a knowing, voluntary and intelligent plea because he was not apprised of a direct consequence of the plea that he was ineligible for a sentence under the Drug Offender Sentencing Alternative (DOSA) under RCW 9.94A.660, so it remanded the case for the purpose of allowing Mr. Fonseca the opportunity to elect between plea withdrawal and specific performance).

DC Circuit

POST CON - FEDERAL - PLEA - GROUNDS - INVOLUNTARY
United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2004) (government is not required to inform defendants of collateral immigration consequences of plea, but if prosecutor does have such conversation, the obligation arises not to mislead; plea not voluntary where defendant was confused by government about immigration consequences of taking plea).

POST-CONVICTION RELIEF - INVOLUNTARY PLEA - IMMIGRATION CONSEQUENCES - MISINFORMED BY COURT AND PROSECUTOR
United States v. Singh, __ F.Supp.3d __ (D.C. Feb. 24, 2003) (Plea involuntary where prosecutor and judge informed defendant that deportation was a ‘possibility’, although in fact, deportation was nearly certain as the plea was to an aggravated felony; motion to vacate granted).

Other

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE ABOUT SEX OFFENDER REGISTRATION REQUIREMENTS CONSTITUTES IAC
Taylor v. State, 698 S.E.2d 384 (Ga.App. July 8, 2010) (Padillas ineffective assistance of counsel analysis applies to an attorneys failure to advise a client about sex offender registry requirements; Padilla applies because this case was pending on appeal at the time Padilla was decided).

POST CON RELIEF - GROUNDS - IMMIGRATION CONSEQUENCES -- JUDICIAL MISADVICE THAT THERE WAS A CHANCE THE DEFENDANT COULD BE DEPORTED, WHEN IT WAS IN FACT A CERTAINTY, CONSTITUTED A VIOLATION OF RULE
11 Most cases hold that a courts misadvice regarding the mandatory minimum and statutory maximum sentences is not detrimental to the defendant and therefore, does not constitute a violation of Rule 11. But see, United States v. Singh, 305 F.Supp.2d 109 (U.S.D.C. 2004) (Rule 11 violated where both presiding judge and the prosecutor misinformed a noncitizen defendant facing an aggravated felony conviction that there was a "chance" that the defendant could face deportation from the United States, "when in fact it was an absolute certainty."). See also, U.S. v. Lewis, (5th Cir. 1989) (in addressing the appropriate remedy for Rule 11 violation, the court agreed with the lower court that there was a Rule 11 violation due to misinformation regarding the maximum special parole term); Spradley v. U.S., 421 F.2d 1043 (5th Cir. 1970) (sentencing courts discussion of defendants eligibility for parole where he was not eligible for parole violated Rule 11).

POST CON RELIEF - EFFECTIVE ORDER - GROUNDS -- COLLATERAL CONSEQUENCES - EFFECT ON LICENSE
"Conviction of a crime is a ground for denying a professional license to any professional regulated by the Business and Professions Code. Bus. & P C 475, 480(a)(1)." Peck, Effect of a Criminal Conviction on Professional Licenses, Chap. 47, in California Continuing Education of the Bar, California Criminal Law – Procedure and Practice 47.2, p. 1337 (6th ed. 2002). Conviction of a crime is a ground for suspending or revoking a license of anyone licensed by the various acts covered in the Business and Professions Code. Ibid. This specifically applies to real estate sales people. Bus. & Prof. Code 10177(b).

POST-CONVICTION RELIEF - OREGON
If the court advised the noncitizen defendant only that s/he "may" be deported as a result of the plea, when the truth is that deportation is mandatory, the Oregon courts will vacate the conviction. Case?