I blindly initialed and signed my change of plea form…can I withdraw my guilty plea? People v. Novoa
How must an attorney advise a criminal Defendant about immigration? Or specifically in this case People v. Novoa* from 4/22/19, if a Defense Attorney just crossed out certain parts of a change of plea form and has no records of actually advising a Defendant about immigration consequences of the plea, is that ineffective assistance of counsel? Such that would allow the Defendant to withdraw his guilty plea?
The facts in Novoa:
Defendant pled guilty to possession of meth for sale in 2003 and the Court sentenced him to 180 days jail. In 2012, the United States began deportation proceedings against him because of this conviction and in 2013 Defendant appealed, saying he did not know this conviction would result in deportation…and had he known, he would not have pled guilty.
In the guilty plea, one paragraph “contained a standard immigration advisal” and Defendant’s lawyer made a few changes to that paragraph by crossing out and adding some new words. The modified paragraph read, ‘I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or and denial of naturalization may will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest).'” Both Defendant and his lawyer signed the form, and by signing the lawyer attested he “personally read and explained the contents of the change of plea form to Novoa, he observed Novoa sign the form, and he concurred with Novoa’s guilty plea.”
At the hearing to withdraw the guilty plea, Defendant testified “he did not recall discussing any immigration consequences with [his lawyer]. He stated that he did not have time to read the change of plea form, and [his lawyer] did not take the time to discuss the form with him.” Defense Counsel just “told Novoa just to sign [the change of plea form].”
Defendant “came to the United States when he was only five or six years old and had never returned to Mexico. Shortly before he pled guilty in 2003, his son was born in the United States. In addition to his son, his mother, foster mother, brothers, sisters, aunts, uncles, and cousins all lived in the United States. Although [Defendant] was born in Mexico, he had no connection whatsoever to that country.”
The Defense Lawyer testified to the opposite: “that his ‘normal practice would have been to identify if there was an immigration issue[,]’ and he would have ‘started with any client’ ‘to determine if immigration was in play.’ …[H]is beginning point, with any client in 2003, was to determine if immigration issues existed. Indeed, in discussing the modifications to [the paragraph about immigration consequences] of the change of plea form, [Defense Counsel] stated ‘normally the practice was to advise, regardless, but I know there could be situations—if it wasn’t a concern, we weren’t discussing it directly.'”
The law and holding here:
“To show that trial counsel’s performance was constitutionally defective, an appellant must prove: (1) counsel’s performance fell below the standard of reasonableness under prevailing professional norms, and (2) the ‘deficient performance prejudiced the defense'”
The Trial Court believed Defendant and did not believe his attorney:
“The court found Novoa credible. Specifically, it believed Novoa when he testified that O’Connor did not adequately review or explain the change of plea form.”
On the other hand: “…the court observed that there was ‘very little interaction’ between [Defense Counsel] and Novoa. And the court appeared bothered that [Defense Counsel] claimed that ‘immigration must of been a concern’ in representing Novoa, but there was no documentation in the file that [Defense Counsel] discussed any such concerns with Novoa or attempted to address such concerns in negotiating a plea agreement. Simply put, the trial court did not believe that [Defense Counsel] discussed the immigration consequences of pleading guilty with Novoa.”
Specifically about the modified paragraph on immigration: “The court also did not find the [immigration paragraph] or Novoa’s initials by [the immigration paragraph] established that [Defense Counsel] informed Novoa regarding the immigration consequences of pleading guilty.”
The Trial Court found ineffective assistance of counsel and found prejudice and Defendant is entitled to relief to withdraw his guilty plea per California Penal Code 1473.7.
*Court of Appeals of California, Fourth District, Division One.