Criminal Defense of Immigrants

(C)  As Result of Plea or Admission.  It is implicit in the statutory definition that to constitute a conviction, the punishment must be imposed as a result of the plea, verdict, or admission.  Any other result would lead to absurd results.  For example, the plea might be entered in one case, and the person might previously have been punished in another case.  This cannot possibly constitute a conviction, although both plea and punishment are present.  Congress must have meant that the plea (or verdict, or admission) must have been followed by judicial imposition of punishment, penalty or restraint in the same case and because of or on account of the plea, verdict, or admission.  The Supreme Court has applied the plain meaning rule to the question whether a conviction triggers deportation.[50]

                Pretrial restraint, such as pretrial detention or pretrial probation, therefore cannot constitute the sentence required to constitute a conviction where adjudication has been withheld.  A state court has suggested that pretrial probation cannot constitute a conviction because guilt has not been established prior to the issuance of the pretrial probation order.[51]

[50] Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (Nov. 9, 2004).

[51] Commonwealth v. Rodriguez, 802 N.E.2d 1039 (Mass. Feb. 10, 2004) (Supreme Court of Massachusetts suggests in dictum that Massachusetts pretrial probation would not be a “conviction” for immigration purposes since in granting the pretrial probation, “[g]uilt was not established in any fashion in this case.”).