State v. Ortiz
163 N.H. 506
| N.H. | 2012Background
- Ortiz, unrepresented, pled nolo contendere to a class A misdemeanor shoplifting in 2007; plea form at the time did not warn of immigration consequences.
- In 2011, federal removal proceedings were instituted against Ortiz alleging the shoplifting conviction is a crime involving moral turpitude.
- Ortiz moved to withdraw her plea and vacate the conviction, contending her plea was not knowing because immigration consequences were not explained and she was misled by the prosecutor.
- The district court treated the issue as legal and denied a hearing, relying on the collateral-direct consequences distinction and relying on State v. Harper.
- On appeal, the NH Supreme Court addressed whether immigration consequences must be communicated to establish a knowing plea, applying state law with federal law aid, and ultimately held immigration consequences are collateral and need not be advised.
- The court noted a new standard acknowledgment form (effective Nov. 18, 2010) includes a warning about immigration consequences, but held noncitizens still need not be advised for knowing-plea purposes; the State’s burden was met that the plea was knowing under the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immigration consequences are direct or collateral for plea knowingness. | Ortiz argues immigration consequences are direct/central. | State/Ortiz? (Ortiz’s position) argues collateral; Padilla does not apply. | Immigration consequences are collateral; plea was knowing. |
| Whether Padilla v. Kentucky mandates warning about deportation in NH pleas. | Ortiz relies on Padilla to require notice. | State/discretion; Padilla does not extend to direct/collateral distinction in NH due process. | Padilla does not compel a direct warning in NH plea process. |
| Whether NH Constitution requires the same warning as federal law in plea proceedings. | Ortiz claims due process under NH Constitution requires warning. | State constitution provides at least as much protection as federal; no warning required. | NH Constitution provides same result; no warning required. |
Key Cases Cited
- Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010) (deportation risk under counsel's advice; direct/collateral distinction discussed)
- State v. Fournier, 118 N.H. 230 (1978) (direct consequences requirement for knowing plea)
- State v. Elliott, 133 N.H. 190 (1990) (direct consequences requirement clarified in NH)
- State v. Harper, 126 N.H. 815 (1985) (collateral vs direct consequences doctrine)
- State v. LaRose, 71 N.H. 435 (1902) (plea of nolo contendere treated as guilty for purposes of direct consequences)
- State v. Ball, 124 N.H. 226 (1983) (due process and knowing plea analysis)
- Amador-Leal, 276 F.3d 511 (9th Cir. 2002) (immigration consequences treated as collateral; Rule 11 duties)
- Delgado-Ramos, 635 F.3d 1237 (9th Cir. 2011) (Padilla applied to Sixth Amendment, not Rule 11 due process in NH context)
- Smith v. State, 697 S.E.2d 177 (Ga. 2010) (immigration consequences treated as collateral; direct vs collateral)