2013 VT 61


State v. Mutwale
(2012-363)
 
2013 VT 61
 
[Filed 02-Aug-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 61

 

No. 2012-363

 

State of Vermont 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Mutume
  J. Mutwale


May Term, 2013


 


 


 


 


Brian
  J. Grearson, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Seth Lipschutz, Prisoners’ Rights
Office, Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.  Defendant appeals the trial court’s denial of
his motion to withdraw a guilty plea, arguing that he was not sufficiently
advised of the potential immigration consequences of his conviction.  See
13 V.S.A. § 6565(c)(1)-(2); V.R.Cr.P.
11(c)(7).  We affirm because the language employed during defendant’s plea
colloquy adequately advised defendant that a guilty plea could result in
deportation or denial of U.S. citizenship.
¶ 2.            
Defendant pleaded guilty in August 2012 to three counts of misdemeanor
domestic assault under 13 V.S.A. § 1042 and to an unrelated charge of
driving under the influence.  At the change-of-plea hearing pursuant to
Vermont Rule of Criminal Procedure 11, the court advised defendant:
I
do have to tell you that, if you’re not a U.S. citizen, a conviction on these
offenses—the underlying facts—could have an impact on your ability to become a
citizen, could lead to deportation, or you could be denied reentry into the
country.  Do you understand that?
 
Defendant responded: “Yes, your
honor.”  The court accepted defendant’s change of plea and sentenced him
to eighteen-to-seventy months with no credit for time served, as previously
agreed with the State.  Defendant began to serve his sentence immediately.
¶ 3.            
More than a month later, defendant sent a letter to the trial court’s
criminal division, asking to “take my plea back and re-open my case.”  In
the letter, defendant stated:  “Due to ineffective counsel . . .
I am now a subject of deportation, 8 U.S.C. § 1227(a)(2)(E).  When I took . . . my plea, the court and counsel
fail to advice me that a guilty plea on a crime of domestic violence would
result in an automatic deportation.”[1]
¶ 4.            
The trial court denied defendant’s motion to withdraw his guilty plea.
 It reviewed the recording of the plea colloquy and determined that “the
court explained to the defendant that the convictions could result in
deportation and the defendant agreed he was aware he could be deported.”
 The court then concluded that there was compliance with Rule 11 and 13
V.S.A. § 6565 regarding the consequences of the plea.  In its order,
the trial court also cited Vermont Rule of Criminal Procedure 32(d), ruling
that a motion to withdraw a plea after a sentence has been imposed and while in
custody “is not available to defendant.”[2]
¶ 5.            
Defendant now appeals, arguing that the trial court should have granted
his motion because the warning he received from the trial judge regarding
immigration consequences was insufficient to satisfy the requirements of 13
V.S.A. § 6565(c)(1).[3]  The
State responds that the court’s warning substantially complied with the statute
and corresponding criminal procedure rule, noting the court’s words were
“simply a paraphrase of the statutory language, with no significant difference
between the two.”
¶ 6.            
Section 6565(c)(1) of Title 13 requires that,
before accepting a guilty plea, the court “shall address the defendant
personally in open court, informing the defendant and determining that the
defendant understands that, if he or she is not a citizen of the United
States . . . pleading guilty . . . to a crime may
have the consequences of deportation or denial of United States citizenship.”[4]  Section 6565(c)(2)
permits the defendant to withdraw a plea “at any time” if its two requirements
are met.  First, the court accepting the plea must have “fail[ed] to advise the defendant in accordance with
[§ 6565(c)(1)].”  13 V.S.A. § 6565(c)(2).  Second, the defendant must show “the plea and
conviction may have or has had a negative consequence regarding his or her
immigration status.”  Id.  If these two requirements are met,
the court “shall vacate the judgment and permit the defendant to withdraw the
plea.”  Id.
¶ 7.            
We conclude that the first requirement of 13 V.S.A. § 6565(c)(2) was not met because the trial court adequately informed
defendant of the potential immigration consequences of his conviction. 
Change-of-plea hearings must comply with Rule 11.  To implement 13 V.S.A.
§ 6565(c)(1), Rule 11 includes language that is
indistinguishable from that of the statute.  It mandates: 
 
(c) The court shall not accept a plea of guilty . . .
without first, by addressing the defendant personally in open court, informing
the defendant of and determining that the defendant understands the following:
. . . .
 
(7) if the defendant is not a citizen of the United
States . . . pleading guilty . . . to a crime may
have the consequences of deportation or denial of United States citizenship.
 
V.R.Cr.P.
11(c)(7).
¶ 8.            
The trial judge was not required to recite the language of Rule 11(c)(7) verbatim; substantial compliance with the requirements
of Rule 11 is sufficient to withstand a challenge to the sufficiency of a plea
hearing.  See State v. Riefenstahl, 172 Vt. 597,
599, 779 A.2d 675, 678 (2001) (mem.) (“[W]e require only a practical application of the rule ensuring
fairness, rather than a technical formula to be followed.” (quotation
omitted)).  Indeed, the Legislature considered an earlier draft of 13
V.S.A. § 6565 that would have compelled the court to use precise language
to warn immigrant defendants of possible collateral consequences of a
conviction by placing the language required within quotation marks.  This
version did not pass, however, and the enacted version of the bill includes no
language in quotation marks.  Compare 13 V.S.A. § 6565(c)(1), with S.182, § 1, 2005-2006 Gen. Assem., Bien. Sess. (Vt. 2006) (bill as introduced) (“[T]he
court shall personally address the defendant in open court, advising him or her
of and determining that he or she understands the following: ‘If you are not a
citizen of the United States, you are hereby advised that pleading guilty or nolo contendere to a crime may
affect your immigration status now or in the future.  Admitting guilt may
result in immigration consequences even if the charges are later dismissed.
 Your plea or any admission of guilt that you make in this court may
result in your deportation or removal from the United States, could prevent you
from ever being able to obtain legal status in the United States, or could
prevent you from becoming a U.S. citizen.­’ ”); cf. State v.
Francis, 2004-Ohio-6894, ¶ 20, 820 N.E.2d 355 (when immigration warning was
enclosed within quotations, holding trial court was required to recite language
verbatim).
¶ 9.            
We discern no substantive difference between the phrase
“may have the consequences of” as used in the statute, and the phrases “could
have an impact on” and “could lead to” as spoken by the trial judge.  It
was within the trial judge’s discretion to formulate phrasing that explained to
defendant the possibilities of deportation or denial of U.S. citizenship.
 See V.R.Cr.P. 11(c)(7);
In re Hall, 143 Vt. 590, 594-95, 469 A.2d at 756, 758.
¶ 10.         Here,
the trial judge properly identified these two specific consequences.  V.R.Cr.P. 11(c)(7).  Indeed,
he exceeded the statutory minimum by further informing defendant of the
possibility of exclusion from the country.  This case is therefore unlike
those in other states in which trial courts have erred by not sufficiently
specifying the possible immigration consequence as required by law.  See State
v. Sorino, 118 P.3d 645, 651 (Haw. 2005) (holding
that warning that “this plea may have a bearing on whatever relationship you
have with the Immigration and Naturalization Service” completely failed to
specify consequences of plea as required by statute); Machado v. State,
839 A.2d 509, 510, 513 (R.I. 2003) (per curiam)
(holding that warning that plea might have “some effect upon what happens with
the immigration service” was inadequate because court did not identify specific
consequences required by statute).
¶ 11.         Defendant
also contends that the court should have informed him that he is subject to
automatic denial of citizenship, which he describes as a “direct consequence”
of his plea.  The Rule 11 colloquy requires that the defendant know and
understand the “direct consequences” of his plea in order to ensure that his
waiver of constitutional rights is voluntary.  See In re Parks,
2008 VT 65, ¶ 14, 184 Vt. 110, 956 A.2d 545 (“A trial court’s failure to
satisfy any of the core objectives of Rule 11—ensuring that the guilty plea is
free of coercion, that the defendant understands the nature of the charges
against him, and that the defendant is aware of the direct consequences of
his plea—affects the defendant’s substantial rights.” (emphasis
added)); see also State v. Pilette, 160 Vt.
509, 511, 630 A.2d 1296, 1297 (1993) (“A guilty plea is not voluntary unless
the defendant knows and understands the consequences that attach to the plea”).
¶ 12.         However,
in the context of plea hearings, “direct consequences” include only those which
the court itself can impose.  See State v. Setien, 173 Vt. 576, 579-580, 795 A.2d 1135, 1140
(2002) (mem.) (upholding defendant’s prior
burglary and felony retail theft convictions, even though he did not receive
warnings about the consequences of recidivism); Pilette,
160 Vt. at 510-511, 630 A.2d at 1297 (holding that defendants knew and
understood consequences of their DUI pleas, even though trial court did not
inform them of bill under debate by Legislature that could enhance future
similar convictions to felony level); In re Moulton, 158 Vt. 580, 583,
613 A.2d 705, 708 (1992) (holding that Rule 11 does not require court to ensure
that defendant understands consequences of nolo contendere plea on parole eligibility in sexual assault
case).  Rule 11(c)(7) mandates that the court put a defendant on notice
that federal authorities may impose specified immigration consequences; the
rule does not, however, require the court to predict whether federal
authorities will definitely impose those consequences, nor does the court have
the ability to do so.  See Pilette, 160
Vt. at 510-512, 630 A.2d at 1297 (holding not only that court had no obligation
to predict consequences but also that court could not have predicted
consequences); see also In re Moulton, 158 Vt. at 583, 613 A.2d at 708
(noting that court is not required to predict consequence but not addressing
court’s ability to do so); cf. Setien 173 Vt.
at 580, 795 A.2d at 1140.
¶ 13.         Even
assuming that defendant’s convictions will automatically bar him from gaining
citizenship—which is not necessarily clear from the record or the applicable
federal law[5]—13
V.S.A. § 6565(c)(2) only requires that the court in its Rule 11 colloquy
inform defendants of the potential of deportation or denial of citizenship before
accepting a guilty plea.  See State v. Stewart, 822 A.2d 366, 369
(Conn. App. Ct. 2003) (holding that trial judge’s warning that if defendant was
not citizen that conviction might have consequences of deportation, exclusion,
or denial of naturalization was sufficient, even though judge did not inform
defendant that his conviction would certainly result in deportation).  The
law does not require the court to analyze the hypothetical impact of
defendant’s conviction on his federal immigration status, nor would this task
be appropriate for a Vermont court.  See Pilette,
160 Vt. at 511-512, 630 A.2d at 1297; Stewart,
822 A.2d at 369.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 
 





[1]
 Although defendant made mention of “ineffective counsel” in his letter,
defendant directed the correspondence to the criminal division, and his request
was interpreted as a motion to withdraw his plea, not as a civil complaint for
post-conviction relief based upon ineffective assistance of counsel. 
Accordingly, we confine our review to the sufficiency of the trial court’s Rule
11(c)(7) immigration warning.
 


[2]
 It is not clear from the entry order whether the court intended its
reference to Rule 32(d) as an alternative ground for the denial of plaintiff’s
motion under 13 V.S.A. § 6565(c)(2) or simply an observation that Rule
32(d) would bar other types of motions to withdraw a plea.  See V.R.Cr.P. 32(d) (“A motion to withdraw a plea of guilty or
of nolo contendere may be
made only by a defendant who is not in custody under sentence.”).  In the
event the trial court referenced Rule 32(d) as an alternative ground for
denying defendant’s motion to withdraw based on an inadequate admonition
regarding immigration consequences, we note that the Reporter’s Notes to the
2006 amendments to Rule 11(c)(7) specifically indicate
that the “provision [of § 6565(c)(2)] will take precedence over the
provisions of Rule 32(d) concerning time periods and other limits on motions
for plea withdrawal.”
 


[3]
 Before the trial court ruled on the motion at issue in this appeal,
defendant filed a notice of appeal on an unrelated ground.  The status of
the other appeal is not clear from the record and, in any event, it is not
encompassed by the current appeal.
 


[4]
 For purposes of this appeal, we assume that defendant is not, in fact, a
U.S. citizen although that fact does not appear to be explicitly referenced in
any of the pleadings.


[5]
 Good moral character is a prerequisite for naturalization, and an
“aggravated felony” under federal law bars a finding of good moral
character.  8 U.S.C. § 1101(a)(43)(F). 
An offense that includes the use of physical force against another’s person is
one type of aggravated felony.  See 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(a).  However, even though
defendant maintains that he is automatically ineligible for naturalization,
whether his particular domestic assault conviction under 13 V.S.A. § 1042
constitutes an aggravated felony as defined by federal law appears
speculative.  The record does not indicate any formal notice from federal
immigration authorities to that effect, and it does not appear that the
relevant federal authorities or courts have determined the effect of a Vermont
domestic assault conviction.



