Post-Conviction Relief for Immigrants

 

In both state and federal court, the trial court is required to state the terms of the Plea Agreement on the record, and thereby ensure that the plea is voluntary.  Rule 11(e)(2) provides that “the court shall, on the record, require the disclosure of the agreement in open court . . . .”[389]  The sufficiency of compliance with Rule 11(e), and the voluntariness of a plea, are reviewed de novo. [390] 

 

            In United States v. Kennell,[391] the court reversed a conviction on account of a Rule 11(e)(2) violation, stating:

 

that Rule 11(e)(2) is to be taken seriously, and that the error is rarely harmless.

 

            Because there is a marked difference between being warned in open court by a district judge and reading some boiler‑plate language during the frequently hurried and hectic moments before court is opened for the taking of pleas and arraignments, the [silent] reading of the [written] plea agreement is no substitute for rigid observance of Rule 11.[392]

 

The court continued:

 

In this case, it is impossible to know with certainty what this defendant would have done.  To avoid having to speculate and engage in retrograde mind reading was one reason for the adoption of Rule 11(e)(2).[393]

 

            Because of the sometimes hurried and hectic nature of the brief conferences between court‑appointed counsel and their clients, who may have met only once or twice before, courtroom recitals that the defendant has read the agreement simply do not take the place of the judge’s telling the defendant what it means to enter a type (B) guilty plea.[394]

 

            In order to prove the Rule 11 error harmless, the record must demonstrate the defendant was actually aware of the contents of the plea agreement at the time s/he entered the plea.  As the court held in United States v. Kendall, supra, “we are limited to the contents of the record of the plea proceeding.”[395]

 

            In Kendall, the record did not leave the court with a sense that the defendant was fully aware of the information required to enter a knowing, intelligent, voluntary plea.  The court could not be sure that the defendant’s substantial rights were not affected by the district court’s failure to disclose the contents of the plea agreement on the record.[396]

 

            In United States v. Graibe, the court also failed to find a Rule 11(e)(2) violation harmless whenever “there is a reasonable possibility that [defendant] was confused in a way that compliance with Rule 11 could have remedied.”[397]  “The purpose of the Rule 11(e)(2) warning is to provide essential information to the defendant so that he will fully understand the implications of his plea.  If a defendant is not given that warning, there will necessarily be a ‘reasonable possibility’ that he will not comprehend those implications fully — unless the record of the plea proceeding contains facts warranting a contrary conclusion.”[398]  The court reversed since the record of the plea proceeding failed to demonstrate the defendant had the knowledge contained in the missing advisement.

 

            In California, every aspect of a plea agreement must appear on the record in some form or another: the terms can be stated orally and taken down by the court reporter; the clerk could set forth the agreement in the court minutes; the parties could file a written stipulation as to the terms; or the information could be recorded on a court form.[399]  While the courts have expressed great concern when there is a failure to record the basis for prosecutorial action via the terms of the plea agreement, it appears that the remedy is to simply remand for the terms to be placed in the record.[400]  Where some tangible prejudice has occurred from either a misunderstanding or breach of the bargained for agreement, resentencing should be ordered and the plea agreement specifically enforced, or the defendant be allowed to withdraw his or her plea.  See § 7.97, infra.

[389] Emphasis supplied.

[390] See United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984).

[391] United States v. Kennell, 15 F.3d 134 (9th Cir. 1994).

[392] Id. at p. 135-136 [emphasis supplied].

[393] Id. at p. 136-137.

[394] Id. at p. 137.

[395] Id., citing Graibe, 946 F.2d at 1434.

[396] See United States v. Caro, 997 F.2d 657 (9th Cir. 1993) (failure to disclose contents of plea agreement on record failed to alert district judge to the nature of the agreement as a “package deal”).

[397] United States v. Graibe, 946 F.2d 1428, 1435 (9th Cir. 1990), quoting United States v. Theron, 849 F.2d 477, 481 (10th Cir. 1988).

[398] Ibid.

[399] People v. West, 3 Cal.3d 595 (1970).

[400] People v. Cardoza, 161 Cal.App.3d 40 (1984).