Aggravated Felonies

            A “slow plea” is a court trial usually conducted by agreement that the court can decide guilt or innocence, and render a verdict, after a court trial consisting of reading a document, sometimes supplemented by testimony.  This is often done in the nature of a plea bargain, so that the parties agree to submit Count I to the court for decision in this way, upon agreement that the remaining charges would be dismissed and the sentence would be imposed, in the event of conviction, within agreed parameters.   

            The mechanics of a “slow plea” are as follows:

            1.  The parties agree to waive jury trial, to allow the court to decide guilt or innocence in a court trial.

            2.  The defendant waives the right to confront witnesses, and the other rights required for entry of a guilty plea, because it is substantially certain that he will be convicted as a result of this procedure.

            3.  Both parties agree to submit the question of guilt or innocence on an agreed document, such as a police report or transcript of a probable cause hearing, sometimes supplemented by specified testimony, or an agreed statement of facts.

                        a.  If this procedure is employed solely to preserve an unfettered right to appeal, the parties can agree on a statement of facts stipulated to be true, but this may be taken as an admission of sufficient facts to support a conviction, and render the disposition a “conviction” for immigration purposes.[325]  See § 3.32(F)(5), supra.

                        b.  If the defendant seeks to avoid a disposition that will be considered a conviction for immigration purposes, it is necessary not only to avoid a plea and verdict, but also to avoid an admission of sufficient facts to support a conviction.  This can best be done by making the record clear that the defendant does not agree that the prosecution version of the facts is true, and does not admit them, but is merely agreeing that the court can consider the police report (or other agreed source of facts) as evidence presented during trial, which the court can choose to credit or not.  This has a chance of avoiding a conviction if the immigration court is convinced the defendant did not admit the truth of sufficient facts to warrant a conviction.

            4.  The parties agree that other counts than the count(s) submitted will be dismissed, and the sentence that will be imposed in the event of conviction is specified or agreed to fall within certain parameters.

            5.  The court reads the police report or other agreed source of facts.

            6.  The court renders a guilty verdict.  At this point, the disposition becomes a conviction under immigration law when the court imposes a qualifying sentence.  See § 3.32, supra.

            Criminal defense counsel may desire the bargaining advantages of a guilty plea, but also wish to preserve the full right to appeal which may be lost under some states’ procedures if a guilty plea is entered.  This would enable counsel to raise an illegal search, unconstitutionality of a statute, or other legal issues on appeal, and perhaps win the case in that way.  During the appeal, the conviction is not yet final for immigration purposes, and deportation proceedings cannot be initiated until the appeal has been completed.  This may also allow the client successfully to complete probation, so as to obtain state rehabilitative relief, or other post-conviction relief, that would be effective in some cases to eliminate the conviction for immigration purposes.

[325] INA § 101(a)(48)(A)(ii), 8 U.S.C. § 1101(a)(48)(A)(ii). See § 3.32(G)(5), supra.