Post-Conviction Relief for Immigrants

In some jurisdictions, a motion to withdraw a guilty plea may be made in the trial court prior to sentence.  The motion may be discretionary,[215] for example, when mistake or excusable neglect causes entry of the plea.  This motion may also be made and granted on some mandatory ground of legal invalidity of the plea or conviction, for example, when the plea is involuntary or when jurisdictional or constitutional defects are present.

            A defendant’s ignorance of the immigration consequences of the plea may properly be considered “good cause” to allow the withdrawal of the plea in the discretion of the trial court.[216]  This is in keeping with the general rule that “mistake, ignorance or inadvertence” will support withdrawal of a plea.  In a proper case, evidence that the plea was entered under duress will also support granting this motion.[217]  Since this relief is discretionary, it is especially important to argue the equities.  If the defendant was unrepresented by counsel at the time a plea to certain felony offenses was entered, however, the granting of the motion is mandatory under the terms of some state statutes.[218]

[215] E.g., New York Criminal Procedure Law § 220.60(3) provides “at any time before the imposition of sentence, the court in its discretion may permit a defendant who has entered a plea of guilty to the entire indictment or to part of the indictment … to withdraw such plea.”

[216] People v. Superior Court (Giron), 11 Cal.3d 793, 797-98 (1974).

[217] In People v. Huricks, 32 Cal.App.4th 407, 29 Cal.Rptr.2d 592 (1995), the Second District Court of Appeal held the trial court properly denied a motion under California Penal Code § 1018 based on the claim that defendant’s family pressured him into the plea.  The court held that he was under no greater pressure than any criminal defendant.

[218] E.g., California Penal Code § 1018.