How to Use Missouri Rule 29.07(d) to Avoid the Immigration Consequences of a Criminal Conviction
You are a foreign national and you came to the United States to study on a student visa. You got your degree and have stayed and worked in the United States. You want to become a United States citizen. When you go to adjust your status to permanant resident and get a green card, you are told that you have been convicted of two crimes involving moral turpitude (CIMT). Because of these two CIMT, you are not eligible for adjustment and in fact you are subject to removal, i.e. deportation. You panic. All you can remember is when you were in college (over ten years ago) you entered guilty pleas to two misdemeanor convictions. You thought this was ancient history. Your immigration lawyer tells you that at least one of these convictions has to be vacated. What do you do? You call a postconviction lawyer.
MISSOURI SUPREME COURT RULE 29.07(d) CAN BE USED TO WITHDRAW AN OLD GUILTY PLEA
Rule 29.07(d) provides for the following:
(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty may only be made before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after Sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
Even though your conviction is over ten years old and you have already paid your fine and court costs and conmpleted any probation, you can still seek to withdraw your guilty plea. Unlike other Missouri postconviction remedies, Rule 29.07(d) has no time lmit if you are attempting to correct a manifest injustice. However, if you entered a guilty plea and was sentenced to the Missouri Department of Corrections, you probably will not be able to use Rule 29.07(d) because you had another postconviction remedy available to you.
WHICH DEFENDANTS ARE IN THE BEST POSITION TO USE RULE 29.07(d)?
The defendants who are in the best position to benefit from a Rule 29.07(d) motion to wihdraw their guilty plea are those who were convicted of either a misdemearnor or felony and received a suspended execution of sentence (SES). A SES is a probationary sentence in which a defendant is sentenced to a prison or jail term but the sentence is not executed. If probation is successfully completed, the defendant does not go to prison or jail. The reason Rule 29.07(d) would be available to a SES defendant is because this defendant would not have been committed to the Missouri Department of Corrections. Because of no committment, he or she would never have been able to use the normal postconviction reemdy to challenge a guilty plea (Rule 24.045). Unlike a defendant who successfully completes a SES, a defendant who is sentenced to a suspended imposition ot sentence (SIS) and successfully completes probation cannot move to withdraw his or her guilty plea. The reason for this is that a SIS defenant is never sentenced and does not have a judgment of conviction. A SIS defendant, however, could move to withrdraw his or her guitly plea prior to the completion of probation.
HOW WOULD A SES DEFENDANT FACING DEPORTATION USE RULE 29.07(d)?
If you have an old conviction and the sentence was not exeucted, you could file a motion to withdraw your plea in the court of conviction. You would have to show the court that your guilty plea resulted in a manifest injustice and should be vacated. However, before filing such a motion you must understand the potential consequences. When a court vacates a guilty plea, it puts the case back to the status it was in before you entered the plea. If the prosecutor is unwilling to dismiss the charges, you may have to go to trial.
A manifest injustice would arise if at the time of your guilty plea, your attorney failed to advise you that because of the nature of the crime, it could result in your deportation. Someone facing deportation would file a Rule 29.07(d) moiton claiming that it was not explained to him or her the immigration consequences of his or her guilty plea. Counsel's failure to advise as to these consequnces resulted your guilty plea being involuntary, unknowning, and unintelligent. Recent Unitied Supreme Court case law requires that a lawyer explain to a criminal defendant the immigration consequences of a criminal conviction. Padilla v.Kentuck y, 559 U.S. 356 (2010), After you file the motion, the court would hold a hearing to determine whether you have in fact suffered a manifest injustice. You will have to testify as to what your attorney did or did not tell you and the consequnences of his or her advice. Your former attorney would also testify as to whether or not they properly advised you under Padilla. If you had any other evidence to prove a manifest injustice, you must bring that also.
If you are facing removal on the bais of a CIMT in which you received a probationary sentence in the State of Missouri, a Rule 29.07(d) motion is your best chance at getting the conviction vacated and keep you from being deported. If this is your situation, you should consult an experienced postconviction lawyer.