Judicial Advisement , Plea of Guilty, (725 ILCS 5/113-8 new)
Starting January 1, 2004, a plea of guilty will now
only be "intelligent and informed" when the judge has admonished the non-citizen
defendant that his plea may have an adverse consequence on his non-citizen
status in the United States (P.A. 93-0373).
This may turn into a right without a remedy because the new Section 113-8
does not require the judge to vacate the plea for failure to admonish. (see
Wisconsin Supreme Court case below, where statute requires judge to admonish
and failure to do so means absolute right to vacate plea)
Illinois
Senate
Amendment No.
1
deleted the requirement that, after the court
fails to make the advisement to the alien, and the alien shows that conviction
of the offense may have immigration consequences for the defendant, the court
shall, on the defendant's motion, vacate the plea of guilty.
In Illinois many criminal judges will apply
the collateral consequence doctrine, find the failure to admonish "harmless
error", and deny post-conviction relief. The
State's Attorney's office will argue that this amendment does not supercede
common law or otherwise mandate the vacating of the plea, and that the court
must look to the totality of the circumstances surrounding the plea in
determining whether it was "knowing and voluntary." That the failure to admonish
is only one factor, and if the outcome would be the same with the admonishment,
the judicial error is "harmless"; that the Senate amendment deleted the
automatic ground for granting relief evinces an intent to preserve the common
law approach in post-conviction petitions based on allegations of "involuntary
plea."
The Strickland "ineffective assistance of counsel" (misleading or incorrect advice) basis should be alleged whenever possible to augment this new statutory basis to vacate a plea.
The "better" argument is that 725 ILCS 5/113-8 (new) is not retroactive. If the defendant is arraigned before the effective date of this Act, 1/1/2004, a court's failure to provide this advisement does not require the vacation of judgment and withdrawal of the plea or constitute grounds for invalidating a prior conviction; but the court has the discretion to vacate a judgment and permit a defendant to withdraw a plea.
Several states already require that a trial court advise an alien defendant pleading guilty or nolo contendre of possible immigration consequences of the plea.
States which have enacted such laws include California, Connecticut, District of Columbia, Florida, Hawaii, Massachusetts, New Mexico, New York, North Carolina, Ohio, Oregon, Texas, Washington and Wisconsin. See, e.g., CAL. PENAL CODE § 1016.5; Conn. Gen. Stat. § 54-1j (2001); D.C. CODE ANN. § 16-713; FLORIDA R. C. P. 3.172(c)(8)(viii). In Re Amendments to Florida Rules, 536 So. 2d 992 (Fla. 1988); Ga. Code Ann. § 17-7-93 (1997); HAW. REV. STAT. § 802E-2; MD. RULE 4-242 (2001); MASS. GEN. L. ch. 278, § 29D; Minn. Rule Crim. Pro. 15.01 (2000); Mont. Code Ann. § 46-12-1210 (1997); New Mexico RA, Rule 5-303(E)(5)and Form 9-406; N.Y. CRIM. PROC. LAW § 220.50(7); N.C. GEN. STAT. § 15A-1022(7); OHIO REV. CODE ANN. § 2943.031; ORE.REV. STAT. § 135.385(2)(d); R. I. Gen. Laws § 12-12-22 (2000); TEX. CODE CRIM. PROC. ANN., art. 26.13(a)(4); WASH. REV. CODE § 10.40.200 (1990); WIS. STAT. § 971.08(1)(c); Marriott v. State, 605 So. 2d 985, 987 (Fla. Dist. Ct. App. 1992) (per curiam) (en banc).The American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982).
_____________________________________________________
The Criminal Code has been amended to state as follows:
* * *
(725 ILCS 5/113-8 new). Advisement concerning status as an alien.
Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to defendant in open court:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States."
http://www.legis.state.il.us/legislation/publicacts/fulltext.asp?name=093-0373
Short Description: CRIM PRO-ALIENS;CONVICTION
Status: P.A. 93-0373 , eff. 1/1/04
Summary:
Amends the Code of Criminal Procedure of 1963. Provides that before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall advise the defendant in open court that if the defendant is not a citizen of the United States
conviction of the offense for which the defendant has been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States. See P v. Huante, 143 Ill.2d 61, 1991 (don't ask; don't tell by attorney). Also see: People v. Pequeno No. 2- 01-0747 (March 21, 2003) Kane County; Defendant failed to establish, in hearing on post conviction petition, that he was denied effective assistance of counsel which rendered his guilty plea involuntary when his defense attorney responded to his question about impact that guilty plea would have on his immigration status, that he did not know; and that defendant would have to ask an immigration attorney. Further, despite box on guilty plea form that defendant acknowledges that it might affect immigration status, there was no constitutional requirement that court advise defendant that guilty plea would result in his automatic deportation
Senate Committee Amendment No. 1
Deletes the requirement that, before accepting an alien defendant's plea of guilty, mentally ill, or nolo contendere, to a misdemeanor or felony offense, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the defendant's advisement by the court that conviction of the charged offense may have immigration consequences for the defendant; and that, if the defendant is arraigned on or after the effective date of the Act, and the court fails to make that advisement to the alien, and the alien shows that conviction of the offense the defendant pleaded guilty to may have the immigration consequences for the defendant, the court shall, on the defendant's motion, vacate the plea of guilty, guilty but mentally ill, or nolo contendere, and enter the plea of not guilty. Deletes the requirement that, in the absence of a record of that advisement by the court, the defendant shall be presumed not to have received the required advisement. Deletes the language providing that, if the defendant is arraigned before the effective date of this Act, a court's failure to provide this advisement does not require the vacation of judgment and withdrawal of the plea or constitute grounds for invalidating a prior conviction; but the court has the discretion to vacate a judgment and permit a defendant to withdraw a plea; and that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.
Wis. Stat. § 971.08 (2001)
971.08. Pleas of guilty and no contest; withdrawal thereof.
(1) Before the court accepts a plea of guilty or no contest, it shall do
all of the following:
(a) Address the defendant personally and determine that the plea is made
voluntarily with understanding of the nature of the charge and the
potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact
committed the crime charged.
(c) Address the defendant personally and advise the defendant as
follows: "If you are not a citizen of the United States of America, you
are advised that a plea of guilty or no contest for the offense with
which you are charged may result in deportation, the exclusion from
admission to this country or the denial of naturalization, under federal
law."
(d) Inquire of the district attorney whether he or she has complied with
s. 971.095
(2) If a court fails to advise a defendant as required by sub. (1) (c)
and a defendant later shows that the plea is likely to result in the
defendants deportation, exclusion from admission to this country or
denial of naturalization, the court on the defendants motion shall
vacate any applicable judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea. This subsection
does not limit the ability to withdraw a plea of guilty or no contest on
any other grounds.
(3) Any plea of guilty which is not accepted by the court or which is
subsequently permitted to be withdrawn shall not be used against the
defendant in a subsequent action.
2002 WI 62; 253 Wis. 2d 173, *; 646 N.W.2d 1, **; 2002 Wisc. LEXIS 452,
State of Wisconsin, Plaintiff-Respondent, v. Sisakhone S. Douangmala,
Defendant-Appellant-Petitioner. No. 00-3292-CR SUPREME COURT OF
WISCONSIN 2002 WI 62; 253 Wis. 2d 173; 646 N.W.2d 1; 2002 Wisc. LEXIS
452
April 10, 2002, Oral Argument June 19, 2002, Opinion Filed
PRIOR HISTORY: REVIEW OF A DECISION OF THE COURT OF APPEALS. (L.C. No.
98 CF 221). Reported at: 247 Wis. 2d 498, 633 N.W.2d 278 (Ct. App.
2001-Unpublished). Judge: Donald R. Zuidmulder.
DISPOSITION: Reversed and remanded. CASE SUMMARY
PROCEDURAL POSTURE: After defendant pleaded no contest to several
crimes, the Court of Appeals (Wisconsin) remanded the case to the
circuit court to determine his understanding of the possibility of
deportation at the time he entered his no contest plea. The circuit
court denied defendant's motion to withdraw his plea. The appellate
court affirmed that order, as defendant knew of the deportation
consequences at the time he entered his plea. Defendant appealed.
OVERVIEW: Defendant was not a United States citizen. Defendant stated
that he was having difficulty understanding his attorney and the
proceeding. His attorney stated that defendant understood the English
language at about 20 percent and then with help. Additionally, the
circuit court failed to comply with the statutory mandate when it did
not address defendant personally to advise him in the words set forth in
Wis. Stat. § 971.08(1)(c) (1999-2000) of the deportation consequences of
his no contest plea. Subsequently, defendant was ordered deported
because of the conviction resulting from his no contest plea. Because
the circuit court failed to give the statutorily mandated advice and
defendant moved the circuit court and demonstrated that the plea was
likely to result in his deportation, Wis. Stat. § 971.08(2) (1999-2000)
required the circuit court to vacate defendant's conviction and to
permit him to withdraw his no contest plea. The appellate court held
that the harmless-error interpretation of § 971.08(2) was objectively
wrong under the language of the statute, and it overruled the cases that
applied the harmless error analysis to § 971.08(2).
OUTCOME: The supreme court reversed the appellate court's judgment and
remanded the cause to the circuit court with a direction to vacate the
judgment of conviction and to permit defendant to withdraw his plea and
enter another plea.
++++++++++++++++++++++++++++++++++++++++++++++
The Strickland "ineffective assistance of counsel" (misleading or incorrect advice) basis should be alleged whenever possible to augment this new statutory basis to vacate a plea.
The "better" argument is that 725 ILCS 5/113-8 (new) is not retroactive. If the defendant is arraigned before the effective date of this Act, 1/1/2004, a court's failure to provide this advisement does not require the vacation of judgment and withdrawal of the plea or constitute grounds for invalidating a prior conviction; but the court has the discretion to vacate a judgment and permit a defendant to withdraw a plea.
Several states already require that a trial court advise an alien defendant pleading guilty or nolo contendre of possible immigration consequences of the plea.
States which have enacted such laws include California, Connecticut, District of Columbia, Florida, Hawaii, Massachusetts, New Mexico, New York, North Carolina, Ohio, Oregon, Texas, Washington and Wisconsin. See, e.g., CAL. PENAL CODE § 1016.5; Conn. Gen. Stat. § 54-1j (2001); D.C. CODE ANN. § 16-713; FLORIDA R. C. P. 3.172(c)(8)(viii). In Re Amendments to Florida Rules, 536 So. 2d 992 (Fla. 1988); Ga. Code Ann. § 17-7-93 (1997); HAW. REV. STAT. § 802E-2; MD. RULE 4-242 (2001); MASS. GEN. L. ch. 278, § 29D; Minn. Rule Crim. Pro. 15.01 (2000); Mont. Code Ann. § 46-12-1210 (1997); New Mexico RA, Rule 5-303(E)(5)and Form 9-406; N.Y. CRIM. PROC. LAW § 220.50(7); N.C. GEN. STAT. § 15A-1022(7); OHIO REV. CODE ANN. § 2943.031; ORE.REV. STAT. § 135.385(2)(d); R. I. Gen. Laws § 12-12-22 (2000); TEX. CODE CRIM. PROC. ANN., art. 26.13(a)(4); WASH. REV. CODE § 10.40.200 (1990); WIS. STAT. § 971.08(1)(c); Marriott v. State, 605 So. 2d 985, 987 (Fla. Dist. Ct. App. 1992) (per curiam) (en banc).The American Bar Association's Standards for Criminal Justice provide that, if a defendant will face deportation as a result of a conviction, defense counsel "should fully advise the defendant of these consequences." ABA Standards for Criminal Justice, 14-3.2 Comment, 75 (2d ed. 1982).
_____________________________________________________
The Criminal Code has been amended to state as follows:
* * *
(725 ILCS 5/113-8 new). Advisement concerning status as an alien.
Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to defendant in open court:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States."
http://www.legis.state.il.us/legislation/publicacts/fulltext.asp?name=093-0373
Short Description: CRIM PRO-ALIENS;CONVICTION
Status: P.A. 93-0373 , eff. 1/1/04
Summary:
Amends the Code of Criminal Procedure of 1963. Provides that before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall advise the defendant in open court that if the defendant is not a citizen of the United States
conviction of the offense for which the defendant has been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States. See P v. Huante, 143 Ill.2d 61, 1991 (don't ask; don't tell by attorney). Also see: People v. Pequeno No. 2- 01-0747 (March 21, 2003) Kane County; Defendant failed to establish, in hearing on post conviction petition, that he was denied effective assistance of counsel which rendered his guilty plea involuntary when his defense attorney responded to his question about impact that guilty plea would have on his immigration status, that he did not know; and that defendant would have to ask an immigration attorney. Further, despite box on guilty plea form that defendant acknowledges that it might affect immigration status, there was no constitutional requirement that court advise defendant that guilty plea would result in his automatic deportation
Senate Committee Amendment No. 1
Deletes the requirement that, before accepting an alien defendant's plea of guilty, mentally ill, or nolo contendere, to a misdemeanor or felony offense, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the defendant's advisement by the court that conviction of the charged offense may have immigration consequences for the defendant; and that, if the defendant is arraigned on or after the effective date of the Act, and the court fails to make that advisement to the alien, and the alien shows that conviction of the offense the defendant pleaded guilty to may have the immigration consequences for the defendant, the court shall, on the defendant's motion, vacate the plea of guilty, guilty but mentally ill, or nolo contendere, and enter the plea of not guilty. Deletes the requirement that, in the absence of a record of that advisement by the court, the defendant shall be presumed not to have received the required advisement. Deletes the language providing that, if the defendant is arraigned before the effective date of this Act, a court's failure to provide this advisement does not require the vacation of judgment and withdrawal of the plea or constitute grounds for invalidating a prior conviction; but the court has the discretion to vacate a judgment and permit a defendant to withdraw a plea; and that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.
Wis. Stat. § 971.08 (2001)
971.08. Pleas of guilty and no contest; withdrawal thereof.
(1) Before the court accepts a plea of guilty or no contest, it shall do
all of the following:
(a) Address the defendant personally and determine that the plea is made
voluntarily with understanding of the nature of the charge and the
potential punishment if convicted.
(b) Make such inquiry as satisfies it that the defendant in fact
committed the crime charged.
(c) Address the defendant personally and advise the defendant as
follows: "If you are not a citizen of the United States of America, you
are advised that a plea of guilty or no contest for the offense with
which you are charged may result in deportation, the exclusion from
admission to this country or the denial of naturalization, under federal
law."
(d) Inquire of the district attorney whether he or she has complied with
s. 971.095
(2) If a court fails to advise a defendant as required by sub. (1) (c)
and a defendant later shows that the plea is likely to result in the
defendants deportation, exclusion from admission to this country or
denial of naturalization, the court on the defendants motion shall
vacate any applicable judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea. This subsection
does not limit the ability to withdraw a plea of guilty or no contest on
any other grounds.
(3) Any plea of guilty which is not accepted by the court or which is
subsequently permitted to be withdrawn shall not be used against the
defendant in a subsequent action.
2002 WI 62; 253 Wis. 2d 173, *; 646 N.W.2d 1, **; 2002 Wisc. LEXIS 452,
State of Wisconsin, Plaintiff-Respondent, v. Sisakhone S. Douangmala,
Defendant-Appellant-Petitioner. No. 00-3292-CR SUPREME COURT OF
WISCONSIN 2002 WI 62; 253 Wis. 2d 173; 646 N.W.2d 1; 2002 Wisc. LEXIS
452
April 10, 2002, Oral Argument June 19, 2002, Opinion Filed
PRIOR HISTORY: REVIEW OF A DECISION OF THE COURT OF APPEALS. (L.C. No.
98 CF 221). Reported at: 247 Wis. 2d 498, 633 N.W.2d 278 (Ct. App.
2001-Unpublished). Judge: Donald R. Zuidmulder.
DISPOSITION: Reversed and remanded. CASE SUMMARY
PROCEDURAL POSTURE: After defendant pleaded no contest to several
crimes, the Court of Appeals (Wisconsin) remanded the case to the
circuit court to determine his understanding of the possibility of
deportation at the time he entered his no contest plea. The circuit
court denied defendant's motion to withdraw his plea. The appellate
court affirmed that order, as defendant knew of the deportation
consequences at the time he entered his plea. Defendant appealed.
OVERVIEW: Defendant was not a United States citizen. Defendant stated
that he was having difficulty understanding his attorney and the
proceeding. His attorney stated that defendant understood the English
language at about 20 percent and then with help. Additionally, the
circuit court failed to comply with the statutory mandate when it did
not address defendant personally to advise him in the words set forth in
Wis. Stat. § 971.08(1)(c) (1999-2000) of the deportation consequences of
his no contest plea. Subsequently, defendant was ordered deported
because of the conviction resulting from his no contest plea. Because
the circuit court failed to give the statutorily mandated advice and
defendant moved the circuit court and demonstrated that the plea was
likely to result in his deportation, Wis. Stat. § 971.08(2) (1999-2000)
required the circuit court to vacate defendant's conviction and to
permit him to withdraw his no contest plea. The appellate court held
that the harmless-error interpretation of § 971.08(2) was objectively
wrong under the language of the statute, and it overruled the cases that
applied the harmless error analysis to § 971.08(2).
OUTCOME: The supreme court reversed the appellate court's judgment and
remanded the cause to the circuit court with a direction to vacate the
judgment of conviction and to permit defendant to withdraw his plea and
enter another plea.
++++++++++++++++++++++++++++++++++++++++++++++
Posted: Mon - January 5, 2004 at 12:35 PM
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Published On: Dec 10, 2004 10:23 PM
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