The defendant, Deicy Urena Ortiz, appeals the Manchester District Court’s (Lyons, J.) denial of her motion to withdraw her plea and vacate her misdemeanor conviction. On appeal, she contends her plea was not knowing because the court did not advise her of its potential adverse immigration consequences. We affirm.
The following facts are drawn from the record. The defendant has been a lawful resident of the United States since 2002. In November 2007, she was charged with the class A misdemeanor of shoplifting. On November 28, 2007, she appeared before the Manchester District Court {Lyons, J.) and entered a plea of nolo contendere. She was not represented by counsel. The defendant signed a standard acknowledgment and waiver of rights form, which, at the time, contained no acknowledgment of the potential adverse immigration consequences of entering either a guilty or nolo plea. During the plea colloquy, the court did not advise the defendant that her plea could result in adverse immigration consequences.
In March 2011, the federal government commenced removal proceedings against the defendant, contending that her shoplifting conviction constituted “a crime involving moral turpitude,” a deportable offense.
See
8 U.S.C. § 1182 (a)(2)(A)(i)(I) (2005). In response, the defendant filed a motion to withdraw her plea and vacate her conviction. In her motion, she argued that her plea was not “knowing” because: (1) the court failed to inform her “that a conviction could subject her to deportation”;
Acknowledging that it did not advise the defendant of the possible immigration consequences of her plea, the court concluded that the defendant raised a “pure issue of law,” and, therefore, there was “no need for a hearing on the factual basis for [her] request.” The court was not persuaded by the defendant’s argument that
Padilla v. Kentucky,
On appeal, the defendant continues to maintain that she did not enter into a knowing plea because the court failed to advise her of potential adverse immigration consequences. Alternatively, she contends that the State Constitution’s Due Process Clause requires warning of possible immigration consequences to ensure the “fundamental fairness” of her plea. She maintains that she “would not have pleaded [nolo contendere] if she knew that she risked deportation by doing so.”
Following oral argument, we remanded the case to the trial court to consider whether the unrepresented defendant entered a knowing plea to the shoplifting charge in light of her allegation that the prosecutor who negotiated the plea told her that a conviction would not affect her immigration status. After an evidentiary hearing, the trial court found that the defendant did not meet her burden of proving this allegation, and reaffirmed its denial of her motion. The defendant concedes that the court’s resolution of this factual issue is afforded substantial deference; therefore, she does not challenge it. However, she maintains that she did not enter into a knowing plea because the trial court violated her due process rights under the State and Federal Constitutions in failing to advise her of the possibility of adverse immigration consequences. We first address the defendant’s claim under the State Constitution, and rely on federal law only to aid in our analysis.
State v. Ball,
Because a conviction results from a plea of
nolo contendere,
we find no reason here to distinguish a
nolo
plea from a plea of guilty.
See State v. LaRose,
“A guilty plea must be knowing, intelligent, and voluntary to be valid.”
State v. Dansereau,
Here, the defendant carried her initial burden of describing the specific manner in which her plea was unknowing; she does not challenge the voluntariness of her plea. Because the district court acknowledged that it “did not advise the defendant of possible immigration consequences of [her] plea,”
see id.,
the burden shifts to the State to demonstrate, to a clear and convincing degree, that the defendant’s plea was knowing.
Offen,
We have consistently held that as a matter of constitutional due process, the defendant must be advised of the direct consequences of entering a guilty plea, but not the potential collateral consequences, in order for the guilty plea to be considered knowing.
State v. Fournier,
Other jurisdictions have concluded that deportation is a collateral consequence of a guilty plea.
See, e.g., Smith v. State,
“Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction.”
Smith,
The defendant suggests that “Padilla’s Sixth Amendment holding requiring ‘advice regarding deportation’ before a [guilty] plea” is accepted, is “transferrable to a similar Fourteenth Amendment requirement that a trial court provide a ‘warning regarding deportation’ to unrepresented defendants.” (Brackets omitted). Thus, she contends, there is no need to classify immigration as either a direct or collateral consequence because, following Padilla’s logic, “awareness of potential deportation proceedings is central to a knowing plea” under our constitution. We decline to accept the defendant’s broad reading of Padilla.
In
Padilla,
the Supreme Court addressed “whether, as a matter of federal law, [the defendant’s] counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal.”
Padilla,
Despite the defendant’s efforts to link the ineffective assistance of counsel analysis relied on in Padilla and the due process analysis, the two differ markedly.
Direct and collateral consequences relate to the trial court’s duty to ensure that guilty pleas are knowingly and voluntarily entered as a matter of Fifth Amendment due process, while ineffectiveassistance of counsel relates to the defense lawyer’s duty pursuant to the Sixth Amendment.
. . . This approach clarifies that defense counsel may be ineffective in relation to a guilty plea due to professional duties for the representation of their individual clients that set a standard different — and higher — than those traditionally imposed on trial courts conducting plea hearings for defendants about whom the judges often know very little.
Smith,
The Ninth Circuit’s
pre-Padilla
analysis in
United States v. Amador-Leal
is instructive. In
Amador-Leal,
the defendant appealed his conviction and sentence following his guilty plea.
Amador-Leal,
In affirming his conviction, the Ninth Circuit followed Fmchtman and concluded that despite the recent developments in immigration laws, deportation remained a collateral consequence. Id. at 515-16. The court explained that “[t]he distinction between a direct and collateral consequence of a plea turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 514 (quotation omitted). In addition, the court reasoned that “when, as in the case of deportation, the consequence in issue was not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility, Rule 11 [of the Federal Rules of Criminal Procedure] imposes no duty on the District Court to advise a defendant of such consequences.” Id. (quotations omitted).
In
United States v. Delgado-Ramos,
While we are mindful of the Supreme Court’s observation in
Padilla
that “[d]eportation as a consequence of a criminal conviction is ... uniquely difficult to classify as either a direct or collateral consequence,”
Padilla,
We note, however, that effective November 18, 2010, the standard acknowledgment and waiver of rights form now contains the following language:
If I am not a citizen of the United States, I understand that conviction of the crime(s) for which I intend to plead GUILTY may have immigration consequences, including but not limited to, deportation from the United States, exclusion from admission into the United States, or denial of naturalization pursuant to the laws of the United States.
Although not required, we acknowledge trial courts’ efforts to alert defendants to these potential consequences, “for there is no question that immigration consequences of a conviction are important to aliens contemplating a plea.”
Amador-Leal,
Because the State Constitution provides at least as much protection as the Federal Constitution under these circumstances, we reach the same result under the Federal Constitution as we do under the State Constitution.
See State v. Laforest,
Affirmed.