The grounds on which this type of motion is granted depend on the statute.  Generally speaking, such a statute will provide that the court taking a plea must advise all defendants (not merely noncitizen defendants) of the potential immigration consequences of the plea: deportation, exclusion from admission to the United States, and denial of naturalization pursuant to the laws of the United States.  In the absence of this warning, some statutes provide the conviction must be vacated, to allow the noncitizen an opportunity to renegotiate the case in light of the actual immigration consequences, of which counsel will presumably inform them.  Other statutes provide that the failure to give this warning does not create a ground to vacate the plea.

 

California.  California’s statutory advisal requirement directs a court to vacate the judgment if the court taking the plea fails to advise the defendant of the possibility of (a) deportation, (b) inadmissibility, and (c) denial of naturalization.  The statute requires a mandatory vacation of judgment upon a showing of inadequate advisement by the trial court, regardless of whether the defendant suffered any prejudice.[238]  The California Supreme Court, however, held that a trial court’s violation of the statute required vacation of the conviction only if a non-citizen could show that s/he had been prejudiced by the court’s failure to provide the advisement, i.e., that there was a reasonable probability that the plea would not have been entered if the defendant had been correctly advised and had learned the actual adverse immigration consequences of the conviction.[239] 

 

Florida.  In Florida, if the trial court fails to inform a non-citizen defendant of the potential adverse immigration consequences, as the court rule requires, the defendant can withdraw the guilty plea within two years from the date on which the defendant knew, or should have known, of the threat of deportation based on the plea.[240]  The defendant must also show prejudice from the court’s failure and that s/he would not have entered the plea if properly advised.[241]

 

Massachusetts.  In Massachusetts, the Supreme Judicial Court vacated a conviction in a case in which the court gave a general immigration warning that did not conform to the language of the statute, in violation of state law, and did not warn the defendant of each of the three possible immigration consequences, i.e., deportation, denial of naturalization, and exclusion from admission to the United States.[242]

 

Ohio.  In Ohio, the advisal is required by statute,[243] which provides that, prior to accepting a plea of guilty or no contest, “the court shall address the defendant personally” and provide the following advice to the defendant:

 

If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading guilty (or no contest, when applicable) may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.[244]

 

            If a court fails to give these advisements after the effective date of the section (October 2, 1989), the court “shall” set aside the judgment and permit the defendant to withdraw the plea.  All the defendant need show is that: (1) the court failed to provide the specified advisements; (2) the advisement is required by that division; (3) the defendant is not a citizen of the United States; and (4) the conviction of the offense to which he pleaded guilty or no contest may result in his being subject to deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.[245]  The warnings are not required, however, if the defendant states orally or on a written plea form that he is a citizen of the United States.[246]

 

            One unpublished case held that the court must state the exact words set out in quotation marks in the statute.[247]  However, another states that the advisement is sufficient if there is “substantial compliance” with the statutory requirement, meaning that “under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.”[248]  Yanez held that a warning given on a written plea form is not ‘substantial compliance,’ however.[249]  Rather, the court must engage in a “meaningful dialogue” with the defendant to ensure that the defendant understands the warnings.[250]  While an interpreter may read the warnings to the defendant, the court retains the obligation to ensure that the defendant understood the warnings given by the interpreter.[251]

 

In Yanez, the court asked whether the warnings on the plea form were read to the defendant and whether he understood them, to which the interpreter answered “Yes.”[252]  Since the court did not independently question the defendant or clarify that he understood the rights, the court had not ‘substantially complied’ with the statute.[253]

 

            Section 2943.031 does not contain any time limit for making a motion.[254]  However, one court found that a trial court was within its right to deny a motion where the defendant waited 11 ½ years to file the motion and gave no explanation for the delay.[255]

 

            One other potential issue to be aware of is res judicata.  One of the judges in Tabbaa wrote a concurrence in which she stated that she would have found the motion barred by res judicata, since Tabbaa failed to perfect an appeal of his conviction, and the issues he raised by motion could have been fully litigated on appeal.[256]  There is a split of authority on whether res judicata can bar such a motion.[257]

 

The better analysis is that courts which impose time limitations or find motions barred by res judicata are confusing the requirements of § 2953.21.  This argument finds support in the recent Ohio Supreme Court decision of State v. Bush,[258] which held that Idowu and similar cases had misconstrued its prior precedent by applying a timeliness requirement analysis to motions to set aside a guilty plea.  Bush notes that the timeliness requirement and the res judicata bar are applicable to petitions under § 2953.21, not under Crim.R. § 32.1.    

 

Washington State.  In Washington, an appeals court vacated a conviction where the record did not establish that the petitioner received the advisement required by statute.[259]

 

Other States.  Courts in other states, however, have held that the failure to give the statutory warning concerning the possible immigration effects of a guilty plea does not violate the defendant’s rights under the United States Constitution or the respective state constitution.[260] 

[238] Cal. Penal Code § 1016.5(a).

[239] People v. Superior Court (Zamudio), 999 P.2d 686 (Cal. 2000).

[240] Peart v. State, 756 So.2d 42 (Fla. 2000).

[241] Id. at 47-48; State v. Seraphin, 818 So. 2d 485 (Fla. 2002).

[242] Commonwealth v. Hilaire, 777 N.E.2d 804 (Mass. 2002); but see Commonwealth v. Agbogun, 788 N.E.2d 1007 (Mass. Ct. App. 2003).  The Supreme Judicial Court of Massachusetts has also held that the state advisal applies equally to an “admission to sufficient facts” which leads to a finding of guilty, just as it does to a plea of guilty or nolo contendere.  Commonwealth v. Mahedo, 491 N.E.2d 601 (Mass. 1986).

[243] Ohio Revised Code § 2943.031.  See State v. Weber, 707 N.E.2nd 1178, 1186  (Ohio App. 1997); State v. Yanez, 782 N.E.2d 146, 151 (Ohio App. 2002.)

[244] O.R.C. § 2943.031, subd. (A).

[245] O.R.C. § 2943.031, subd. (D); State v. Weber, 707 N.E.2nd at p. 1184.

[246] O.R.C. § 2943.031, subds. (B)(1) and (2).

[247] State v. Quran, 2002 WL 31087704 (Ohio App. 2002) (unpublished cases are cited as authority by published cases in Ohio).

[248] State v. Yanez, 782 N.E.2d at p. 152, quoting State v. Nero, 56 Ohio St.3d 106, 108 (Ohio 1990).

[249] Id. at p. 154.

[250] Ibid.

[251] Ibid.

[252] Id. at p. 516.

[253] Id. at p. 521.

[254] State v. Yuen, 2002 WL 31124023 (Ohio App. 2002).

[255] State v. Tabbaa, 151 Ohio App.3d  at 147.  Tabbaa had a dissenting opinion, and it was accepted for review by the Ohio Supreme Court.

[256] Ibid.

[257] Compare, e.g., State v. Idowu, 2002 WL 1393653 (Ohio App. 2002) and State v. White, 754 N.E.2d 287, 291 (Ohio App. 2001), with State v. Yuen, 2002 WL 31124023 (Ohio App. 2002) (noting split of authority and finding that defendant was not required to appeal conviction to raise the issue of the court’s failure to give warnings under § 2943.031).

[258] State v. Bush, 773 N.E.2d 522 (Ohio 2002).

[259] State v. Littlefair, 51 P.3d 116 (Wash. App. Ct. 2002).

[260] See People v. Ford, 86 N.Y.2d 397 (1995); Lyons v. Pearce, 694 P.2d 969 (Or. 1985).

Lower Courts of First Circuit

POST CON RELIEF - STATE - MASSACHUSETTS - RECORD OF CONVICTION - STATE ADVISAL STATUTE - EXPUNGEMENT
Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Massachusetts pretrial probation is not considered conviction for state purposes, therefore statutory requirement to warn of immigration consequences under G. L. c. 278, 29D, are not required for such disposition, even if the disposition would be a conviction for federal immigration purposes).