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Ruling Lets Immigrants Rescind Pleas

Courts: State justices say defendants must show that their lawyers failed to tell them about the chance of being deported.


SAN FRANCISCO — Immigrants who face deportation because they have pleaded guilty to a felony may withdraw that plea if they can show that their lawyers misrepresented their likelihood of being expelled from the country, the California Supreme Court ruled Monday.

Four of the state high court's seven justices decided that immigrants are not adequately protected simply because California judges are required to tell them that a guilty plea could result in their deportation if they are not United States citizens.

Instead, the majority said, immigrants may be able to withdraw a guilty plea if, in response to a question, their defense lawyer provided inaccurate information about the consequences for a noncitizen.

Legal analysts predicted that the ruling will be of little help to immigrant defendants, however. To rescind a guilty plea after being sentenced, an immigrant will still have to show that he or she has a good chance of winning their criminal trial.

"I doubt this opinion is going to result in very many people being able to satisfy the legal requirements" for withdrawing a guilty plea, said McGeorge School of Law professor J. Clark Kelso.

In Monday's decision, the court ruled against Hugo Rangel Resendiz, a Mexican immigrant who pleaded guilty to drug charges in return for a relatively light sentence and then changed his mind when authorities sought to deport him.

The court said Resendiz failed to show that he would have elected to go to trial even if he had known that a guilty plea would result in deportation.

Resendiz was a permanent resident of the United States who lived and worked here for more than 25 years. His two children are U.S. citizens.

In June 1997, Resendiz pleaded guilty to drug charges in Orange County Superior Court and received a 180-day jail sentence and three years' probation.

He said his attorney told him that if he did not plead, he probably would be convicted at trial and sentenced to five years in prison.

Resendiz said he told his lawyer he was concerned about keeping his green card. The lawyer told him he would have "no problems with immigration" if he pleaded guilty but would not be able to become a U.S. citizen, Resendiz said.

If Resendiz had been found guilty in a trial, he would have served his prison sentence in California and then been deported.

The state Supreme Court, in an opinion written by Justice Kathryn Mickle Werdegar, declined to decide whether Resendiz had been improperly advised by his attorney.

The court said the question of whether his lawyer had given inadequate representation was moot in Resendiz's case because he failed to show that he had a chance of winning the criminal case in a trial.

"Nothing in his declaration or the other evidence he offered indicates how he might have been able to avoid conviction or what specific defenses might have been available to him at trial," Werdegar wrote.

Justice Stanley Mosk said Resendiz should be given a trial. Every criminal defense lawyer should ask clients whether they are U.S. citizens, Mosk said.

"If the answer is negative, counsel must advise the client of the immigration and nationality consequences of a criminal conviction," Mosk wrote.

The immigration consequences of criminal conviction have become "monstrously cruel" in recent years, Mosk complained.

He noted that immigrants can be deported under federal law even for such misdemeanors as possession for sale of a single marijuana cigarette.

"Few with petitioner's family and cultural ties to the United States would turn down a chance, even a slight chance, of escaping the talons of federal law," Mosk said.

Justice Janice Rogers Brown, joined by justices Marvin Baxter and Ming Chin, agreed only that Resendiz should not be allowed to rescind his guilty plea.

The three conservatives on the court said no immigrant should be allowed to withdraw a plea after sentencing as long as the judge gave the legally required warning about immigration status.

John Philipsborn, who supported Resendiz on behalf of criminal defense lawyers, called Monday's decision regrettable. He complained it will do little to ensure that criminal defense lawyers know immigration law and properly advise clients.

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