People who pleaded guilty to low-level crimes in Colorado without understanding the conviction could impact their immigration cases will be given the opportunity to erase those guilty pleas and restart their criminal cases if a bill passed by state lawmakers last week is signed into law by Gov. Jared Polis.
The effort is aimed at giving non-citizens a straightforward way to fix what has in the past been a common problem in the court system: attorneys and judges failing to advise defendants that a guilty plea in a misdemeanor criminal case could lead to their deportation, make them ineligible for a green card or create other significant immigration consequences.
The U.S. Supreme Court found that such guilty pleas are unconstitutional, said Rep. Kerry Tipper, a Democrat representing Lakewood, who co-sponsored the bill, SB22-103, with Sen. Julie Gonzales, a Democrat representing Denver. But the typical court process to reverse a misdemeanor guilty plea in Colorado must be undertaken within 18 months of the conviction — unless a defendant can later show their attorney was ineffective — and many people don’t realize the immigration consequences of their plea until years later.
If signed into law, the new process will create a simple and relatively quick way for people who pleaded guilty to some misdemeanor offenses to petition the court to vacate those guilty pleas and then restart their criminal court cases. Only people convicted of crimes committed before March will be eligible to vacate their pleas through this process.
Restarting the cases from the beginning will give defendants the opportunity to renegotiate a plea agreement that will not have a disproportionate impact on their immigration status, said attorney Hans Meyer, adding that the bill is aimed at non-citizens who had only one brush with the law.
“Most of the people who need this remedy, they already took responsibility, they’re fine with pleading guilty, they were just given ineffective counsel by their lawyers and now they have these immigration consequences that destroy the rest of their lives,” he said.
The new plea deals could be crafted to carry the sentence and fines that the defendant already served or paid, he said. District attorneys have the opportunity to object to vacating a guilty plea.
In the four-year period between 2017 and 2021, about 2,500 qualifying misdemeanor cases involving non-citizen defendants were filed across the state, according to an estimate prepared by a state financial analyst. Of those, only about 630 defendants are expected to try to vacate their guilty pleas, the analyst found.
The bill did not face much opposition, Tipper said.
“Everyone agrees it is not constitutional,” she said. “The consensus on it speaks to this is a real issue, and everyone agrees it should be remedied.”
The Colorado District Attorneys’ Council initially opposed the measure, both because of tight deadlines in the original bill and because there is already a mechanism in state law for defendants to challenge their guilty pleas — even after 18 months have passed — because of ineffective assistance of counsel. The organization took a neutral stance after amendments to the original proposal.
Tim Lane, a legislative liaison at the council, said attorneys and judges are now better at warning defendants of immigration consequences than they have been in years past, and prosecutors don’t expect to see a large influx of petitions to vacate guilty pleas.
“We don’t see these problems as much anymore,” he said. “It’s really cases that are 10, 12 years old where we see this.”
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