Opinion
No. DBD CR94-0090310 S
July 22, 2004
MEMORANDUM OF DECISION
Before the court is the defendant Domingos Araujo's motion to vacate judgment of conviction rendered November 7, 1995, on the ground that the trial court failed to comply with the provisions of General Statutes § 54-1j by not informing him of the immigration consequences of his guilty plea. The defendant was ordered deported in February 2002. The sole issue for this court to determine is whether § 54-1j, as amended by Public Acts 1997, No. 97-256, § 6 which took effect October 1, 1997, applies retroactively. Prior to that amendment, a defendant could make a motion to vacate a judgment of conviction at any time, whereas now the defendant must make the motion within three years of the plea having been accepted.
General Statutes § 54-1j provides: "(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.
(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.
(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.
Public Acts 1997, No. 97-256, § 6, provides in relevant part: "Section 54-1j of the general statutes is repealed and the following is substituted in lieu thereof: . . . (c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant [later at any time] NOT LATER THAN THREE YEARS AFTER THE ACCEPTANCE OF THE PLEA shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendants motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty. [In the absence of a record that the court provided the advice required by this section, the defendant shall be presumed not to have received the required advice.]"
In State v. Parra, 251 Conn. 617, 741 A.2d 902 (1999), the Supreme Court took up the issue of whether § 54-1j as amended by P.A. 97-256, § 6, applied retroactively. Id., 620. The court held that even though the amendment was ambiguous on its face with regard to retroactivity, the legislative history clearly demonstrated that the legislature intended the amendment to apply retroactively. Id., 628. In Parra, an immigrant-defendant was charged with manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b. Id., 619. On June 28, 1991, the defendant entered into a plea agreement and was sentenced to eight years incarceration. Id. On November 4, 1997, the defendant filed a motion to vacate the 1991 judgment, asserting that during the plea canvass, the trial court violated § 54-13 by not informing him of the immigration consequences of his guilty plea. Id., 621, The trial court denied the defendant's motion, holding that the three-year statute of limitations was procedural in nature and applied retroactively. Id., 621-22. The Supreme Court affirmed the trial court's determination that § 54-1j, as amended by P.A. 97-256, § 6, applied retroactively. Id., 631-32. In coming to this conclusion, the court found that "[t]he legislative history surrounding the enactment of P.A. 97-256, § 6 . . . clearly and unequivocally demonstrates a legislative intent to apply this statute of limitations retroactively." Id., 628.
Subsequently, in State v. Matute, 61 Conn.App. 410, 764 A.2d 214 (2001), the Appellate Court followed Parra, reversing a trial court's granting of a motion to vacate a judgment of conviction grounded upon a failure to advise the defendant of the immigration consequences of his guilty plea, where the motion was filed more than three years from the date of the guilty plea.
In Matute, the defendant entered into the guilty plea on August 19, 1993, and the trial court granted his motion to vacate the judgment on August 6, 1999. State v. Matute, supra, 61 Conn.App. 411.
In light of the previous discussion, the defendant's motion to vacate judgment is denied. General Statutes § 54-1j, as amended by P.A. 97-256, § 6, applies retroactively. Here, the defendant entered his guilty plea on November 7, 1995. The court's review of the record confirms that the defendant was not advised as to the immigration consequences of his guilty plea when he entered into the plea. The defendant filed his motion to vacate the judgment of conviction on June 4, 2004, over eight and one-half years after he entered his guilty plea. In light of the three-year statute of limitations contained within § 54-1j(c), the motion must be denied.