PUBLISHED OPINION BRIEF OF AMICUS CURIAE COLORADO CRIMINAL DEFENSE BAR IN SUPPORT OF YANICK KAZADI S PETITION FOR WRIT OF CERTIORARI

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1 SUPREME COURT, STATE OF COLORADO 101 W. Colfax Avenue, Suite 800 Denver, CO Court of Appeals No. 09CA2640 Arapahoe County District Court Honorable Elizabeth Weishaupl, Judge Case No. 08CR1336 PETITIONER: YANICK KAZADI RESPONDENT: PEOPLE OF THE STATE OF COLORADO Attorneys for Amicus Curiae Colorado Criminal Defense Bar: Hans Meyer, Reg. No The Meyer Law Office 1029 Santa Fe Denver, CO Tel: (303) COURT USE ONLY Case Number: 11SC264 ORDER REVERSED IN PART AND VACATED IN PART AND CASE REMANDED WITH DIRECTIONS Violeta R. Chapin, Reg. No Associate Clinical Professor of Law University of Colorado Law School Robert & Laura Hill Clinical Suite 404 UCB Boulder, CO Tel: (303) Opinion by JUDGE GABRIEL Carparelli, J., concurs Taubman, J., concurs in part and dissents in part. Announced March 3, 2011 PUBLISHED OPINION BRIEF OF AMICUS CURIAE COLORADO CRIMINAL DEFENSE BAR IN SUPPORT OF YANICK KAZADI S PETITION FOR WRIT OF CERTIORARI

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii STATEMENT OF INTEREST OF AMICUS CURIAE... 1 REASONS FOR GRANTING THE WRIT... 2 The court of appeals decision undermines the purposes of postconviction review and frustrates the decisions of this Court and the United States Supreme Court recognizing the right of noncitizens to raise postconviction claims of ineffective assistance of counsel... 2 A. A noncitizen defendant should be able to apply for postconviction review of a guilty plea to a deferred judgment that triggers an immigration penalty as the result of ineffective assistance of counsel B. As a matter of public policy, noncitizen defendants should have the right to pursue postconviction review of a guilty plea to a deferred judgment based on a claim of ineffective assistance of counsel CONCLUSION ii

3 TABLE OF AUTHORITIES Cases Edwards v. People, 129 P.3d 977 (Colo. 2006)...6, 12 Fong Yue Ting v. United States, 149 U.S. 698 (1893)... 9 Matter of Chairez-Castaneda, 21 I&N 44 (BIA 1995)...11 Matter of Marroquin, 23 I7N Dec. 705 (A.G. 2005)... 11, 14 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003)... 11, 14 Padilla v. Kentucky, 130 S.Ct (2010)... passim People v. Pozo, 746 P.2d 523 (Colo. 1987)... passim Statutes , C.R.S. (2010) , C.R.S. (2010)... 10, 14, (1), C.R.S. (2010)... 6, 7, 8, (2), C.R.S. (2010) U.S.C. 1101(a)(48)... 10, 14 8 U.S.C. 1226(c) U.S.C. 1227(a)(2)(A)(iii) U.S.C. 1229b(a)(3)...10 Rules C.A.R Crim. P. 35(c)... 7, 8, 13 iii

4 Pursuant to C.A.R. 29, amicus curiae requests leave to file this brief in support of Yanick Kazadi s petition for writ of certiorari. This brief is filed concurrently with a Motion for Leave to File Amicus Curiae Brief as required by C.A.R. 29. In People v. Kazadi, P.3d (Colo. App. Case No. 09CA2640, Mar. 3, 2011), the court of appeals held that the district court erred in summarily denying Mr. Kazadi s ineffective assistance of counsel challenge to his misdemeanor conviction for which he was given probation, but held that Mr. Kazadi could not seek postconviction review of his felony conviction for which he received a deferred judgment. Slip op. at 1. For the reasons stated below, amicus curiae respectfully requests this Court to grant certiorari and to reverse the portion of the court of appeals decision holding that criminal defendants are not entitled to apply for postconviction review of a deferred judgment. STATEMENT OF INTEREST OF AMICUS CURIAE The Colorado Criminal Defense Bar (CCDB) was formed in It is a Colorado nonprofit organization with over 800 members. The CCDB membership is comprised of criminal defense practitioners including attorneys, paralegals, and investigators in both the public and private sectors who are dedicated to the representation of criminal defendants.

5 As an organization, the CCDB works to ensure that the criminal justice system embraces the principles of liberty, justice, and equality. The CCDB also promotes policies and laws that safeguard criminal defendants from prejudice and injustice, and which ensure that those charged with or convicted of crimes are treated fairly, equitably, and humanely. The CCDB also provides ongoing training and support to criminal defense practitioners and has recently presented continuing legal education programs on the duties of defense attorneys representing noncitizen defendants and the duties and obligations of postconviction attorneys. REASONS FOR GRANTING THE WRIT The court of appeals decision undermines the purposes of postconviction review and frustrates the decisions of this Court and the United States Supreme Court recognizing the right of noncitizens to raise postconviction claims of ineffective assistance of counsel The court of appeals decision that a deferred judgment cannot be challenged by a noncitizen defendant in postconviction proceedings contravenes a primary purpose of postconviction review and frustrates the remedy recognized by both this Court and the United States Supreme Court for the denial of the constitutional right to effective assistance of counsel. This Court should grant certiorari and reverse the court of appeals to ensure that noncitizen defendants who have pleaded guilty to an offense and been granted a deferred judgment as a result of ineffective 2

6 assistance of counsel may apply for postconviction relief. The General Assembly provided a right for every person convicted of a crime to apply for postconviction review (1), C.R.S. (2010). Pursuant to section (2), this Court created a rule of criminal procedure to implement that right. See Crim. P. 35(c). The language in both provisions states that every person convicted of a crime is entitled as a matter of right to make applications for postconviction review. See (1) (emphasis added); see also Crim. P. 35(c) (nearly identical language). This Court has further acknowledged that the dual purpose of postconviction proceedings is to prevent constitutional injustice while promoting the state s interest in the finality of convictions. See Edwards v. People, 129 P.3d 977, 982 (Colo. 2006). In 1987, this Court held that an attorney s failure to reasonably research and advise a noncitizen defendant of the immigration consequences of a guilty plea may constitute ineffective assistance of counsel. See People v. Pozo, 746 P.2d 523, 529 (Colo. 1987). Over 23 years later, the United States Supreme Court similarly held that criminal defense attorneys have a constitutional duty to provide affirmative and competent advice to noncitizen defendants regarding the immigration consequences of a guilty plea, and that the failure to do so may violate 3

7 the Sixth Amendment right to effective assistance of counsel. See Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010). Both Pozo and Padilla outline the constitutional advisement duty owed by defense counsel to noncitizen defendants regarding the immigration consequences of a conviction. More importantly, both decisions tie that constitutional duty to counsel s representation during the period of representation leading up to and including the entry of a guilty plea. Under Colorado law a guilty plea must be entered as part of the deferred judgment process. See (1), C.R.S. (2010) (providing the court with the authority to impose a deferred judgment with the written consent of the defendant and the district attorney in any case in which the defendant has entered a plea of guilty. ). Therefore, Pozo and Padilla contemplate a constitutional advisement duty for defense counsel regarding immigration consequences in conjunction with the investigation and advisement about a plea of guilty, including a plea of guilty to a deferred judgment. The court of appeals decision in Kazadi frustrates this state and federal precedent and advances a narrow interpretation of section (1) and Crim. P. 35(c) that conflicts with the legislative intent of postconviction review. The decision also raises serious policy implications regarding the foreclosure of any 4

8 postconviction remedy for non-citizen defendants currently serving or who successfully completed a deferred judgment. In addition, denying postconviction review for noncitizens facing immigration consequences as a result of ineffective assistance of counsel undermines the purposes of a deferred judgment. A. A noncitizen defendant should be able to apply for postconviction review of a guilty plea to a deferred judgment that triggers an immigration penalty as the result of ineffective assistance of counsel. The language of section (1) and Crim. P. 35(c) should be read in accord with the Pozo and Padilla decisions to recognize a postconviction remedy for noncitizens who are denied the constitutional right to effective assistance of counsel regarding the immigration penalty of a guilty plea. This Court in Pozo, and the Supreme Court in Padilla, held that a defense attorney has a duty to research, investigate, and advise a noncitizen defendant of the immigration penalty of a proposed guilty plea. See Pozo, 746 P.2d at 529 ( we conclude that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to critical phases of such proceedings. ) (emphasis added); Padilla, 130 S.Ct. at 1486 ( we now hold that counsel must inform her client whether his plea carries a risk of deportation. ) (emphasis added). Thus, both Pozo and Padilla recognize that the advisement duty owed by defense 5

9 counsel attaches at the point in which the immigration penalty inheres, which is at the point of consideration and entry of a guilty plea. The Padilla Court went to great lengths to analyze and explain that an immigration consequence is a particularly severe penalty that is intimately tied to the underlying criminal proceedings, making it exceedingly difficult to divorce the penalty from the conviction in the deportation context. Id. at 1481, citing Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893) (emphasis added). In classifying the immigration consequence as a penalty, Padilla distinguished immigration consequences as uniquely difficult to classify as either a direct or collateral consequence. Padilla, 130 S.Ct. at Instead, Padilla reasoned that, because immigration law has increasingly expanded the classes of deportable offenses while limiting the ability of immigration judges to grant relief, the immigration consequences of a conviction have become an integral part indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants. Id. at 1480 (emphasis added). The immigration penalty that flows from a particular guilty plea will often include consequences such as presumptive mandatory deportation and permanent inadmissibility to the United States. See e.g., 8 U.S.C. 1227(a)(2)(A)(iii) 6

10 (aggravated felony grounds of deportability); 8 U.S.C. 1182(a)(2) (criminal grounds of inadmissibility). In addition, certain convictions often strip a noncitizen defendant of otherwise meritorious defenses to removal and subject him or her to mandatory immigration detention without the right to immigration bond. See e.g., 8 U.S.C. 1229b(a)(3) (outlining eligibility for cancellation of removal), 8 U.S.C. 1226(c) (outlining deportability and inadmissibility grounds that trigger mandatory immigration detention). This immigration penalty and its concomitant duty of advisement attaches for immigration purposes in situations that include a plea of guilty together with some form of punishment, penalty, or restraint on the noncitizen s liberty. See 8 U.S.C. 1101(a)(48). Under Colorado law, a person who has pleaded guilty to a criminal offense is convicted of a crime when the court accepts the guilty plea. See , C.R.S. (2010). The deferred judgment statute requires not just the entry of a guilty plea, but often also a period of supervision and compliance with a set of conditions. See , C.R.S. (2010). Accordingly, a deferred judgment constitutes a conviction for immigration purposes because it contains both a plea of guilty and some form of restraint on liberty. See 8 U.S.C. 1101(a)(48); see also Matter of Chairez-Castaneda, 21 7

11 I&N 44 (BIA 1995). This conviction remains for immigration purposes regardless of whether it is later withdrawn under a particular state law based on rehabilitative grounds. See Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005). Rather, the only situation in which a conviction such as the deferred judgment in Mr. Kazadi s case can be eliminated for immigration purposes is if the withdrawal is based on a procedural or substantive defect in the underlying proceedings, such as a claim of ineffective assistance of counsel or similar ground of constitutional infirmity. Matter of Pickering, 23 I&N Dec. 621, 624 (BIA 2003). Thus, there is no distinction for immigration purposes between a deferred judgment and a judgment of conviction. Both convictions trigger immigration penalties for noncitizens, implicate the same constitutional duty of effective assistance of counsel articulated by Pozo and Padilla, and can only be withdrawn for immigration purposes based on a defect of constitutional proportions. The postconviction scheme in Colorado is designed to afford every person convicted of a crime the right to apply for review of their conviction for constitutional error. See (1); Crim. P. 35(c). Thus, to exclude deferred judgments from such review would be to place the court of appeals interpretation 8

12 at loggerheads with the legislative and judicial intent of postconviction review as a means to avoid constitutional injustice. See Edwards, 129 P.3d at 982. It would also frustrate the clear mandates of Pozo and Padilla that noncitizen defendants are entitled to the effective assistance of counsel regarding the immigration penalties of a proposed guilty plea by denying them the means to challenge a claim of constitutional error. Due to the purpose of postconviction relief, the singularity of the immigration penalty at stake, and the constitutional duty owed by defense counsel in such cases, this Court should grant certiorari to address whether a noncitizen defendant has a right to apply for postconviction review of a deferred judgment based on a claim of ineffective assistance of counsel. B. As a matter of public policy, noncitizen defendants should have the right to pursue postconviction review of a guilty plea to a deferred judgment based on a claim of ineffective assistance of counsel. As the majority opinion acknowledged, Mr. Kazadi faces a catch-22 because he may be subject to removal based on a deferred judgment that he may never have the opportunity to challenge in a Crim. P. 35(c) motion. Slip Op. at 7. As a result, Mr. Kazadi and other similarly situated defendants would be placed in the undesirable position of contemplating noncompliance with the terms of a deferred judgment as the only avenue to raise postconviction claims of ineffective 9

13 assistance of counsel. In addition, those noncitizen defendants who have complied with and successfully completed a deferred judgment would be left without any remedy whatsoever for valid claims of constitutional deficiency. Finally, the decision would frustrate the rehabilitative purposes of a deferred judgment in the criminal justice system. The court of appeals decision presents noncitizen defendants such as Mr. Kazadi with an unacceptable choice of seeking constitutional redemption solely through the violation of a deferred judgment. This Faustian bargain contravenes the purpose of a deferred judgment and would elevate non-compliance over rehabilitation. It also vitiates the right to effective assistance of counsel recognized by Pozo and Padilla, and would provide judicial imprimatur to a postconviction process that recognizes a constitutional right but which provides no remedy to enforce that right. Furthermore, it may place postconviction counsel in the untenable position of explaining that the only manner for a noncitizen client to vindicate their constitutional right to effective assistance of counsel is after the revocation of a deferred judgment. The impact on those noncitizen defendants who have successfully completed a deferred judgment are more troubling. These persons have successfully 10

14 complied with all conditions of a deferred judgment and avoided new law violations, thereby demonstrating their rehabilitative potential and earning the privilege to have their conviction withdrawn and dismissed. See However, their guilty plea will continue to trigger draconian immigration penalties, including presumptive mandatory deportation and lifetime inadmissibility. See 8 U.S.C. 1101(a)(48); see also Matter of Marroquin, supra. To interpret Colorado s postconviction remedy so as to exclude deferred judgments from review would not only contravene the constitutional rights recognized in Pozo and Padilla, it would foreclose the sole remedy for noncitizens facing devastating immigration penalties as the result of constitutionally deficient representation by defense counsel. See Pickering, 23 I&N Dec. at 624. In so doing, it would also punish most severely those defendants who have demonstrated their rehabilitative potential through successful completion of a deferred judgment. The public policy goals underlying a deferred judgment involve a balancing of punitive sanctions and the acceptance of responsibility with the promotion of rehabilitation. Section provides prosecutors with discretion to offer deferred judgments to certain defendants, who are frequently first-time or lowlevel offenders. Upon successful completion of a period of supervision which 11

15 often includes conditions such as a drug and alcohol treatment program, domestic violence classes, and mental health evaluation and treatment the guilty plea is withdrawn and the charges are dismissed. Id. Thus, a deferred judgment promotes an interest in rehabilitation over recidivism by allowing a defendant to earn his or her way free of the stigma of a permanent conviction, which in turn promotes reintegration and productivity in the larger community. The court of appeals decision is likely to undermine the purpose of the deferred judgment statute and frustrate the representation of noncitizen defendants. As both a professional and constitutional obligation, defense counsel promote and protect the constitutional rights of the accused, even as to later postconviction review of the effectiveness of defense counsel s own representation. If deferred judgments are rendered immune from constitutional scrutiny in postconviction proceedings, defense attorneys may be reluctant to advise their noncitizen clients to enter into such agreements out of concern about foreclosing the rights of clients to seek postconviction review. Defense counsel may face situations of advising their clients regarding more onerous plea agreements in order to safeguard the ability to seek postconviction review that a deferred judgment would prohibit. Such a situation would place defense counsel at contradictory efforts of pursuing 12

16 zealous advocacy for the least damaging resolution with maintaining a client s ability to seek postconviction review of constitutional error. This may frustrate the rehabilitative purpose behind the deferred judgment statute by deterring noncitizen defendants from entering into such resolutions and opting instead for more onerous plea agreements or jury trial. Because the court of appeals decision raises serious public policy concerns regarding the ability of noncitizen defendants to pursue postconviction claims of constitutional deficiency and frustrates the rehabilitative purpose of deferred judgments, this Court should grant certiorari in order to address whether a deferred judgment can be challenged under postconviction review. CONCLUSION WHEREFORE, for the foregoing reasons, amicus curiae respectfully request that this Court accept this case for certiorari and reverse the decision of the court of appeals in People v. Kazadi denying noncitizens the right to postconviction review of a deferred judgment. 13

17 Respectfully submitted, Hans Meyer, Reg. No The Meyer Law Office, P.C Santa Fe Denver, CO Tel: (303) Fax: (720) Violeta R. Chapin, Reg. No Associate Clinical Professor of Law University of Colorado Law School Robert & Laura Hill Clinical Suite 404 UCB Boulder, CO Tel: (303) Fax: (303) Attorneys for Amicus Curiae Colorado Criminal Defense Bar 14

18 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing brief was sent on April 18, 2011, by first class mail to the following parties: Emmy A. Langley, Esq. Assistant Attorney General 1525 Sherman Street, 7th Floor Denver, CO Antony M. Noble, Esq. The Noble Law Firm, LLC W. Colfax Avenue, C-400 Lakewood, CO

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