Withdrawing a guilty plea in Colorado because of the immigration consequences of the conviction
If you are not a citizen of the United States and you have pleaded guilty to a criminal offense, you may be deported or suffer other immigration consequences because of your conviction. In some cases, withdrawing your guilty plea may resolve your immigration issues.
However, you cannot withdraw your guilty plea as a matter of right. You have to establish grounds for withdrawing your guilty plea.
There is a different procedure for withdrawing your guilty plea depending on whether you move to withdraw your plea before or after sentencing.
Withdrawing your guilty plea before sentencing.
If you have entered a guilty plea, but you have not been sentenced, you will have to establish a fair and just reason for withdrawing your guilty plea.
One example of a fair and just reason is denial of your constitutional right to effective assistance of counsel. You may have been denied effective assistance of counsel if your attorney did not properly advise you of the immigration consequences of pleading guilty.
To withdraw your guilty plea before sentencing, you must file a motion pursuant to Crim. P. 32(d). The judge may then want to hear testimony from you and your attorney about the advice, if any, that was given about the immigration consequences of pleading guilty.
The attorney who failed to properly advise you about the immigration consequences cannot represent you in these proceedings. You will need to retain, or ask to be appointed, a conflict-free attorney. Your plea attorney cannot pursue a claim of ineffective assistance of counsel against himself or herself.
Withdrawing your guilty plea after sentencing.
If you have entered your guilty plea and you have been sentenced for your conviction, you will have to move to withdraw your guilty plea in postconviction proceedings, which will take place in the same court in which you entered your guilty plea.
To initiate postconviction proceedings, you will have to file a petition for postconviction relief pursuant to Crim. P. 35(c). The judge must hold an evidentiary hearing if the claims in your petition, if true, would entitle you to withdraw your guilty plea.
If you move to withdraw your guilty plea on the grounds that you were not advised of the immigration consequences of pleading guilty, you will have to prove, at the evidentiary hearing, that you were denied your constitutional right to effective assistance of counsel.
In Colorado, a judge does not have any obligation to advise you of the immigration consequences of pleading guilty. This is your attorney's obligation if he or she is aware that you may be a non-citizen.
At the evidentiary hearing, you will have to establish that your attorney failed to properly advise you of the immigration consequences and that you were prejudiced because of that failure. To establish prejudice, you will have to convince the judge that you would not have pleaded guilty if you had been aware of the immigration consequences of the conviction.
The attorney who represented you in the plea proceedings cannot represent you in the postconviction proceedings. You will need a conflict-free attorney to represent you in the postconviction proceedings.
Procedural bars to withdrawing a guilty plea.
In Colorado, there are two procedural bars that may prevent you from withdrawing your guilty plea after you have been sentenced. These are the statutory time bar and the successive petition bar.
In most felony cases, you have three years to file your motion to withdraw your guilty plea. For a misdemeanor, you have eighteen months, and, for a petty offense, you have six months.
The statutory time period commences on the date that you were sentenced, or the date that the mandate issued if you appealed your conviction or sentence.
If you file your motion to withdraw your guilty plea after the statutory time period, you will have to establish an exception to the time bar. The exceptions are: (1) the court did not have jurisdiction over the subject matter of the offense; (2) the court did not have personal jurisdiction over you; (3) you were adjudicated incompetent or committed to an institution for treatment of mental illness; and (4) the failure to timely file the motion was a result of justifiable excuse or excusable neglect.
In addition to the statutory time bar, there is the successive petition bar. The successive petition bar applies if you raised, or could have raised, your claim for withdrawing your guilty plea in a prior appeal or postconviction proceeding.
Consequences of withdrawing your guilty plea.
Before filing a motion to withdraw your guilty plea, you should consider the consequences of withdrawing your guilty plea. In some cases, the consequences may be more severe than the guilty plea itself.
If you are successful at withdrawing your guilty plea, the original charges in your case will be reinstated and your case will be set for trial.
You most probably entered your guilty plea pursuant to an agreement with the prosecution to dismiss other charges in your case. The dismissed charges may be more serious than the offense to which you pleaded guilty.
If all of the original charges are reinstated and you are convicted of those charges, the penal consequences of these convictions may be more serious than the immigration consequences of the guilty plea. For instance, you may be convicted of all charges, given a much longer sentence than the original sentence, and then be deported after you have served your sentence.
If you need to withdraw your guilty plea because of the immigration consequences of the conviction, you should consult with an experienced postconviction attorney.