Man to get new trial on a coke-distribution charge because his lawyer never told him pleading guilty would mean automatic deportation

The Supreme Judicial Court today ordered a new trial for a Dominican national who has lived in Boston since he was 11 because he never would have pleaded guilty to possession of cocaine with intent to distribute if he knew that would mean mandatory deportation.

In its ruling, the state's highest court said Elan DeJesus's lawyer knew the man was not a citizen and that his warning that he would be "eligible for deportation" if he pleaded guilty in connection with a 2008 arrest was not really strong enough. At his plea hearing, DeJesus was represented by another lawyer from his attorney's firm, and that lawyer didn't discuss the immigration implications of his plea at all.

In the 2008 incident, police, acting on a tip, arrested DeJesus and another man for cocaine possession - 28 grams of cocaine was allegedly found on his body at booking.

A judge agreed DeJesus deserved a new trial; Suffolk County prosecutors, however, argued he got a fair trial the first time and that telling him he was "eligible for parole" was an adequate warning of what would happen if he pleaded guilty.

The justices sided with DeJesus:

Because the record provides a sufficient basis to support the judge's determination that the defendant met his burden to establish "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" ... there was no abuse of discretion in the allowance of the defendant's motion for a new trial seeking to withdraw his guilty plea.

The court noted DeJesus's status in Boston:

All of the defendant's family members reside in the United States, including a daughter and, as of the date of the hearing, his pregnant wife. Although he is not a United States citizen, the defendant is now a lawful permanent resident of the United States. The defendant attended Boston public schools and graduated from Boston English High School with the aid of an individualized special needs education plan. After graduation, the defendant maintained steady employment with a parcel shipping company, where, at the time of his arrest, he had been employed for eight years loading boxes onto trucks. The arrest in this case was the first time that the defendant had been arrested.

Justice Robert Cordy dissented, saying DeJesus's lawyer actually did a very good job informing him of the consequences of a guilty finding and that he even won a delay in the plea hearing so that DeJesus could better come to grips with what a guilty plea would mean, given his status as a non-citizen.

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    Comments

    When did

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    sneaking into the country become NOT grounds for deportation.

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    31

    Doesn't say he snuck in

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    There are plenty of ways a foreigner can be in the country legally.

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    14

    Plus

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    He was a permanent resident.

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    22

    But

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    It says "deportation was ultimately sought after the defendant's subsequent arrest," meaning he didn't get deported as a result of pleading guilty.

    How can you be

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    a permanent resident if you're not legally permitted to live her?

    Permanent residents....

    Are the new "green cards". (They actually haven't been green in about 50 years, they were called "aliens" after that, which is equally as strange if you ask me)

    I believe they do expire, but you you can be deported if you violate certain laws.

    So he was here legally, but was eligible to be deported if he broke the law.

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    Green Card preference for family members

    If a parent got a green card, children have a high priority for getting in. When a sponsoring family member is a resident for 10 years, they don't even have to pass financial tests that they could support the applying person such that they wouldn't need government aid. Hence, in countries with large families, lots more of them end up gaining green cards here than people coming from countries with smaller families. I acted as a co-sponsor for someone from Australia because his wife had only been here 8 years, so got to read up on it.

    He's a legal immigrant, his

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    He's a legal immigrant, his immigration status was not the issue. A green card holder can be deported for a felony conviction.

    But does this mean that if I plead guilty to a crime, and then lose my job because my employer fires me, or my application for a Capital One credit card is turned dow, then I can call for a do over because my lawyer didn't mention all the consequences?

    criminalien

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    Still amazes me that he was pinched with 28 grams of coke back in 2008 and he's still here. What exactly do you have to do in order to be deported?

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    Gets to stay in jail longer

    Presumably, a plea deal would be for a shorter sentence than being found guilty, so he gets longer, free room, board, and health care in jail, then deported.

    First offense for possession of cocaine.......

    Probably no jail time on a plea. Which makes it an even tougher decision for this guy. He can either risk a guilty plea and possible deportation, or a guilty at trial and then jail and them deportation.

    The best answer. Don't have cocaine on your person if your a permanent resident.

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    Did the judge fail to give the proper guilty plea colloquy?

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    What a joke! I've never seen a guilty plea (and I've seen hundreds) where the judge didn't mention the immigration portion of the required plea colloquy, after which the defendant, on hearing the potential immigration consequences, may withdraw the guilty plea. Did the judge give the proper colloquy?

    Ch. 278 Section 29D. The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.” The court shall advise such defendant during every plea colloquy at which the defendant is proffering a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts. The defendant shall not be required at the time of the plea to disclose to the court his legal status in the United States.

    If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, even if the defendant has already been deported from the United States, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty. Absent an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given as required by this section, the defendant shall be presumed not to have received advisement. An advisement previously or subsequently provided the defendant during another plea colloquy shall not satisfy the advisement required by this section, nor shall it be used to presume the defendant understood the plea of guilty, or admission to sufficient facts he seeks to vacate would have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization.

    Padilla

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    In a recent-ish US Supreme Court case, Padilla, the court required a stronger advisement than the standard one, for certain crimes. Specifically, it requires a "shall" instead of the "may" in the following:
    “If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts MAY have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.”