The criminal law can change for the worse in the time elapsed between the original disposition of the matter and the time post-conviction relief is sought.  If this is the case, counsel can insist on the use of the definition of the offense and  sentencing law in effect on the date the offense was originally committed, under the ex post facto clauses of the state and federal constitutions.[6]  A statute violates these clauses[7] if it either (a) punishes as a crime an act previously committed that was innocent when done, (b) increases the punishment for a crime after its commission, or (c) deprives an accused of any defense available under the law at the time the act was committed.[8]

 

            For example, if pre-plea drug diversion was available to a defendant as of the date the offense was committed, and the conviction is vacated in its entirety on some ground of legal invalidity, that same preferable form of diversion (which does not involve entry of a guilty plea at any time) still would be legally available under the ex post facto clauses.  This would be true even though that form of relief has since been abolished and replaced by deferred entry of judgment, which does initially require entry of a guilty plea and therefore constitutes a conviction under immigration law.

 

            Unfortunately, the ex post facto clauses have been held not to apply to protect a noncitizen in immigration court against retroactive application of adverse changes in the immigration laws, since removal proceedings are considered “civil” in nature, and the ex post facto doctrine protects only against retroactive application of harsher criminal laws.  An analogous form of analysis of retroactivity of immigration legislation can provide some relief under some circumstances.  For example, the Fourth Circuit stated:

 

The St. Cyr Court stated that the discretionary nature of the relief sought “d[id] not affect” its holding that the statute had an impermissibly retroactive effect, explaining that “[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” 121 S.Ct. at 2293. On the other hand, in reaching this decision, the St. Cyr Court heavily relied on two factors not present here: (1) “aliens like St. Cyr had a significant likelihood of receiving” the relief they sought under the old law and (2) they “almost certainly relied upon that likelihood” to their detriment. Id. These two factors similarly formed the basis for our retroactivity holding in Tasios. 204 F.3d at 551-52.[9] 

 

Therefore, under some circumstances, federal courts will conclude that certain adverse changes in the law were not intended by Congress to be retroactively applied against conduct pre-existing the change in the law, in order to protect against disturbance of settled expectations.

[6] Conversely, when a statute has been amended to mitigate the punishment imposed upon conviction, the client must be resentenced to the lighter punishment if the sentence or conviction has been vacated, and the client is resentenced for the same offense.  People v. Rossi (1976) 18 Cal.3d 295, 299‑300, 134 Cal.Rptr. 64; In re Estrada (1965) 63 Cal.2d 740, 744‑745, 48 Cal.Rptr. 172.

[7] U.S. Const., art. I, sec. 9, clause 3 (Congress may not pass ex post facto law); U.S. Const., art. I, sec. 10, clause 1 (state may not pass ex post facto law).

[8] Collins v. Youngblood, 497 U.S. 37, 111 L.Ed.2d 30 (1990).

[9] Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 104 (4th Cir.2001) (4th Cir. 2001).

Lower Courts of Ninth Circuit

CAL POST CON " EX POST FACTO " REALIGNMENT
People v. Hul, 213 Cal.App.4th 182, 2013 WL 323709 (Jan. 29, 2013) (where an offense occurred before enactment of The Realignment Act of 2011, defendants 16-month sentence should have been served in state prison rather than county jail, and thus, the applicable rate of presentence conduct credit should have been full, day-for-day credit, and not half-time as applied by the trial court).