Opinion
No. WW 5 11 65
January 30, 2009
MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO VACATE GUILTY PLEA
On October 24, 1985, the defendant entered a plea of guilty under the Alford doctrine to carrying a dangerous weapon in violation of General Statutes § 53-206. The defendant was sentenced to, and thereafter completed, a two-year term of imprisonment.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
By motion dated September 12, 2008, the defendant requests that the court vacate her 1985 guilty plea and permit her to enter a plea of not guilty. The defendant contends that at the time of her plea she was not advised, as required under General Statutes § 54-1j, of the possible immigration and naturalization consequences that may result from a guilty plea. Further, the defendant maintains that due to her conviction under § 53-206 she is now deportable from the United States and ineligible to apply for a waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). On the basis of the alleged defect in the canvass of her 1985 guilty plea, and because of the adverse immigration consequences that she may now face as a result of that plea, the defendant urges the court, pursuant to § 54-1j and the court's discretionary authority, to vacate her plea.
A hearing was held on the defendant's motion on October 6, 2008. The transcript of the defendant's 1985 plea proceeding was not introduced at the hearing because the transcript (along with all other court records) had been destroyed in the regular course and pursuant to state statutes, at some time prior to the filing of the present motion. See Practice Book § 7-13(i); General Statutes § 51-36(c)(1). For this reason, the only evidence offered by the defendant in support of her claim was the testimony of the defendant herself. Although the court is not unmindful of the genuine concerns and hardships that the conviction may cause the defendant, the court, for the reasons hereinafter set forth, dismisses the motion to vacate for lack of subject matter jurisdiction, and, alternatively, denies the motion on its merits.
Section 7-13(i) provides: "In cases in which there has been a conviction of a felony charge but not a conviction of a capital felony charge, the file, all exhibits and the transcripts of all proceedings held in the matter shall be destroyed upon the expiration of twenty years from the date of disposition or upon the expiration of the sentence, whichever is later."
Section 51-36(c)(1) provides: "In any case in which a person has been convicted of a felony, other than a capital felony, the official records of evidence or judicial proceedings in the court may be destroyed upon the expiration of twenty years from the date of imposition of the sentence in such case or upon the expiration of the sentence imposed upon such person, whichever is later."
The defendant also offered into evidence the judgment mittimus from her 1985 conviction. The defendant concedes, however, that the mittimus does not provide any probative evidence as to the issue now before the court. Transcript, October 6, 2008, pp. 27-28.
DISCUSSION A. Jurisdiction
As an initial matter, the court must determine whether it has jurisdiction to consider the defendant's motion to withdraw her plea. Our Supreme Court has long held that, at least as a general matter, "[i]n a criminal case the imposition of sentence is the judgment of the court. When the sentence is put into effect and the [defendant] is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the [defendant] terminates." State v. Reid, 277 Conn. 764, 775 (2006). In other words, except in limited circumstances, "the court `loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence.'" Id., quoting State v. Luzietti, 230 Conn. 427, 432 (1994).
It is true that neither party here raised the issue of this court's jurisdiction. In fact, in response to the court's questions on this point, the State seemingly agreed with the defendant that the court does have jurisdiction to take up the defendant's motion and, in limited circumstances, to grant the requested relief. Transcript, October 6, 2008, pp. 7-11. Notwithstanding the parties' apparent agreement regarding jurisdiction, however, the court has the independent obligation to determine whether jurisdiction exists. State v. Commins, 276 Conn. 503, 512 (2005) ("[I]t is well established that subject matter jurisdiction may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ."). The parties cannot by agreement confer jurisdiction upon the court where it does not lie; Castro v. Viera, 207 Conn. 420, 429-30 (1988); any more than the court can confer jurisdiction upon itself in the absence of a proper legislative or constitutional grant. See State v. Luzietti, 230 Conn. 427, 431 (1994).
Connecticut case law appears to recognize only two narrow situations in which the trial court retains jurisdiction after the imposition of sentence. The first of these limited circumstances, as recently noted in State v. Reid, supra, 277 Conn. 775, arises where the legislature has expressly conferred upon the trial court continuing jurisdiction. The second situation in which the trial court may retain jurisdiction is in those cases where "it is apparent on the record that a defendant's constitutional rights were infringed during the plea taking proceeding or that the defendant was not advised of the consequences of his plea and was therefore denied due process . . ." State v. Perez, 85 Conn.App. 27, 37-38, cert. denied, 271 Conn. 933 (2004).
In the present case, the defendant was sentenced on October 24, 1985. Therefore, as of that date, the court's jurisdiction over this matter came to an end — except as to those claims within the two exceptions noted above. Accordingly, before it may consider the merits of the defendant's motion, the court must first determine whether the claim the defendant seeks to advance falls within either of these exceptions.
1. Legislative grace a. General Statutes § 54-1j
The applicability of the first of these exceptions, the so-called "legislative grace exception, requires consideration of the language of § 54-1j. Pursuant to § 54-1j, a court may not accept a guilty plea from any defendant unless the court has advised the defendant of the possible immigration consequences that may result from the plea. Moreover, the statute goes on to provide that any defendant who is not advised of these potential immigration consequences during the plea canvass shall be entitled, as a matter of law, to withdraw the plea — provided, however, that the defendant seek such relief within three years after the date of the plea.
General Statutes § 54-1j provides in relevant part:
(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: `If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States . . .'
(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. (Emphasis added.)
In fact, the statute requires that defendants be advised of potential naturalization consequences as well. For purposes of this opinion, however, the court will refer to all consequences as "immigration consequences."
The court is aware that when the defendant entered her plea in 1985, § 54-1j placed no limit on the time within which claims for relief could be brought under the statute. See General Statutes (Rev. 1985) § 54-1j(c) ("If the court fails to advise a defendant as required in subsection (a) of this section and the defendant later at any time shows that his 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 . . ." [Emphasis added.]). In 1997, however, the legislature amended the statute to limit claims to a three-year period after the entry of the plea. Public Acts 1997, No. 97-256, § 6. Shortly after the effective date of this amendment, the Supreme Court held in State v. Parra, 251 Conn. 617, 620 (1999), that P.A. 97-256, § 6, was to be given retroactive effect and that the three-year limitation period applied not only to pleas entered after the effective date of amendment, but also to pleas entered at any time prior to that date. In light of the holding in Parra, the defendant here concedes that the three-year limit applies to her claim, at least to the extent that such claim is based upon the language of the statute.
The defendant in the present case entered her guilty plea in 1985, over twenty years before her filing of the instant motion, and well beyond the three-year statute of limitations. For this reason, although § 54-1j is a statute which confers upon the court, by legislative grace, continuing jurisdiction to conduct post-sentence review of certain pleas, the jurisdiction so conferred does not extend to the plea entered by the defendant here. To the extent that the defendant seeks such a review under the language of the statute, the court concludes that it is without subject matter jurisdiction to consider the defendant's motion.
b. The legislative history of § 54-1j
Recognizing that her claim falls outside the language of § 54-1j, as amended, the defendant advocates that, even in situations where more than three years have passed since the date of a plea, the court still possesses the discretionary authority to vacate the plea of any defendant who was not properly advised of the potential immigration consequences. In other words, the defendant asserts that the three-year limitation set forth in § 54-1j defines the period within which the court, as a matter of law, must vacate the plea, but does not curtail the circumstances under which the court, in its discretion, may grant this relief. In support of her claim, the defendant points to State v. Parra, 251 Conn. 617 (1999), and its discussion of the legislative history of P.A. 97-256, § 6 — the amendment which established the three-year limitation. In Parra, the Court noted the following colloquy, which occurred on the floor of the House of Representatives during a debate over the bill that later became P.A. 97-256, § 6:
It should be kept in mind that in Parra, this legislative history was referenced by the court in support of its determination that § 54-1j should be given retroactive application. See footnote 8 of this decision. The defendant here may be relying upon the same legislative history, but she does so in an effort to support a wholly different legal proposition.
[Representative Robert Farr:] `I guess to Representative [Michael P.] Lawlor, my understanding of what's going on out there now is that the Immigration and Naturalization Service is now going through records and finding people who have been convicted years ago and starting to deport them. I guess my concern with this language would be that somebody who might have pleaded guilty to a drug type of situation, in many cases not knowing the consequences, it might have been a simple possession of marijuana. It might have been some other charge for which they did not understand the consequences, it might have been ten years ago. If the [Immigration and Naturalization Service] now picks that up, and they didn't understand the consequences, I am not sure why we want to say that [if] they weren't informed, that they only have three years.
`Through you, Mr. Speaker to Representative Lawlor, I am not sure why justice would suggest that we ought to be doing this . . .'
[Representative Lawlor:] The `[l]anguage [of the proposed amendment to § 54-1j] would not prohibit a court from re-opening a case and allowing a person to essentially re-negotiate [his or her] plea agreement. This simply modifies language which requires a court to do so . . .
`So . . . in the event that there were a compelling case, nothing that we are doing here today would prohibit a court from reconsidering it. We are just eliminating — we are limiting the mandatory re-opening to a window of three years.'
[Representative Farr:] `I'll take Representative Lawlor's representation that the court would still have the power to re-open these cases and withdraw any objection.'
(Emphasis added.) State v. Parra, supra, 251 Conn. 628-30, quoting 40 H.R. Proc., Pt. 13, 1997 Sess., pp. 4700-702. On the basis of this legislative history, the defendant argues that this court, notwithstanding the clear language of § 54-1j, has the authority to vacate a guilty plea in compelling cases regardless of how much time has passed since the plea was entered. The court, however, does not agree.
The court does not dispute that the cited legislative history reveals an apparent belief by at least two members of the legislature that the court would retain some discretion to vacate a guilty plea even after the expiration of the three-year limitation period. Yet, in this court's opinion, neither this belief (even if held by all of the legislators) nor the legislative history that reflects it can be used as a means of expanding this court's jurisdiction and authority beyond that explicitly provided for in the statute. Section 54-1j is clear and unambiguous on its face, and as such, this court may not look to legislative history as a means of interpreting the statute. See General Statutes § 1-2z. Section 54-1j clearly provides that the court shall vacate any plea entered without the benefit of the immigration advisement, but only where the challenge is filed within three years of the date of the plea. The statute is equally clear in what it does not provide: it does not grant the court any additional authority to review and vacate pleas more than three years old.
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Indeed, even if § 1-2z did not specifically prohibit reference to and reliance upon the legislative history of § 54-1j, this court still would reject as unfounded the novel legal proposition essential to the success of the defendant's claim — that the statements of two legislators contained in the legislative history of a statute can confer broader jurisdiction upon a court than is expressly conferred by the plain language of the statute itself "[I]t is a principle of statutory construction that a court must construe a statute as written . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them . . . The intent of the legislature . . . is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result." (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 288-89 (2008). For these reasons, the court is constrained to reject the defendant's contention that the legislative history of § 54-1j provides a means by which this court may assume jurisdiction over the present case.
2. Constitutional Violation
The second situation in which the trial court retains jurisdiction after sentencing is where it is clear that the defendant was denied due process during the plea hearing. It is well established that "unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable." State v. Greene, 274 Conn 134, 143 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). It is also true that in order to comport with the requirements of due process, the court must advise a defendant of the direct consequences of the plea — consequences which "are included in our rules and are reflected in Practice Book §§ 39-19 and 39-20." Id., 144. But beyond these specifically prescribed direct consequences of a plea, "[t]here is no requirement . . . that the defendant be advised of every [other] possible consequence of such a plea." Id., 145. Our Court has expressly held that "[t]he failure to inform a defendant as to all indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense. (Internal quotation marks omitted.) Id., 144.
In sum, these rules of practice require the court to determine that the defendant understands the nature of the charge, as well as its maximum possible sentence, including any nonsuspendable mandatory minimum sentence. Practice Book § 39-19(1) through (4). The court must also be satisfied that the defendant understands that the plea constitutes a waiver of the right to plead not guilty, the right to a court or jury trial, the right to counsel, the right to confront one's accusers, and the right not to be compelled to incriminate oneself. Practice Book § 39-19(5). Finally, the court must be certain that the plea is entered voluntarily and not as a result of threats or promises. Practice Book § 39-20.
The defendant here does not contend that the court in 1985 failed to comply in any way with the requirements of Practice Book §§ 39-19 and 39-20. Rather, as noted, the sole basis of her claim is that the court failed to advise her of the possible immigration consequences that could arise from her guilty plea. In this regard, our Supreme Court has determined that such immigration consequences are not "direct consequences" which a defendant has a constitutional right to receive notice of prior to the entry of a guilty plea. See State v. Malcolm, 257 Conn. 653, 663 n. 12 (2001) ("Although we do not mean to minimize the potential impact of the immigration and naturalization consequences of a plea, they are not of constitutional magnitude: The statutory mandate [of § 54-1j] cannot transform this collateral consequence into a direct consequence of the plea." [Internal quotation marks omitted.]). As a result, a court's failure to include the statutorily mandated immigration advisement does not implicate a defendant's due process rights. State v. Malcolm, supra, 257 Conn. 663 n. 12 ("[d]eportation . . . is not such an absolute consequence of conviction that we are mandated to read into traditional notions of due process a requirement that a . . . judge must warn each defendant of the possibility of deportation before accepting his plea" [internal quotation marks omitted]).
Therefore, even if the defendant was not advised by the court in 1985 of the immigration consequences of her plea, she was fully and adequately informed, as a constitutional matter, of the direct consequences of her plea. Given that there is no basis upon which to conclude that the defendant's due process rights were violated during the plea proceedings in 1985, the defendant cannot seek post-sentence review of her plea on the basis of this second exception.
As noted earlier, the defendant does not claim that there were any other defects in the plea canvass.
3. Conclusion
On the basis of the above, even if the court were to conclude that the defendant did not receive an immigration advisement during the course of her 1985 plea canvass, the claim she seeks to raise in the present motion is neither of constitutional magnitude, nor within the three-year period of post-sentence jurisdiction conferred to the court by the legislature in § 54-1j. Moreover, this court rejects the defendant's contention that the legislative history of § 54-1j enlarges the parameters of the court's jurisdiction. As a result, the court lacks subject matter jurisdiction to consider the defendant's motion to vacate her guilty plea, and hereby dismisses her motion on that basis.
In ordering that the defendant's motion be dismissed, the court recognizes that there is some appellate court authority suggesting that the court should, based upon its findings, instead order that the motion be denied. See State v. Matute, 61 Conn.App. 410 (2001) (per curiam) (reversing trial court's decision to allow defendant to withdraw guilty plea under § 54-1j where motion filed beyond three-year statute of limitations and remanding with direction to deny defendant's motion). In Matute, however, the Appellate Court did not address the issue of subject matter jurisdiction. Thus, although this court confesses some uncertainty as to the proper form of judgment, the court concludes that, regardless of whether the present motion is ordered "dismissed" or "denied," the defendant here is not entitled to vacate her plea.
B. Merits of the Defendant's Claim
Even if the court were to accept the defendant's argument that the legislative history of § 54-1j confers to the court the discretion to consider her motion to vacate, the defendant's claim fails on its merits. In the court's opinion, the defendant has failed to prove that, in fact, she was not properly advised by the court in 1985 of the possible immigration consequences of her plea. See State v. Andrews, 253 Conn. 497, 505-06 (2000) ("The burden is always on the defendant to show a plausible reason for the withdrawal of a plea.") As noted earlier, the only evidence offered to support the defendant's claim was the testimony of the defendant herself. At the hearing, the defendant asserted that, despite the passage of so many years, she specifically remembers that the judge failed to advise her in 1985 about the potential immigration consequences of her guilty plea. Transcript, October 6, 2008, pp. 15-16. Frankly, it is difficult for this court to believe that a person could remember exactly what a judge did say during a plea canvass nearly twenty-five years ago. Thus, to believe that a person could remember what a judge didn't say strains credulity. The defendant could not remember her then lawyer's name, and testified that the judge's name was Farrell, when the records show it was, in fact, Judge Stoughton. Transcript, October 6, 2008, pp. 20-21; Defendant's Memorandum, Exhibit A. When asked at the hearing to recount the questions posed to her by the judge during the course of the plea canvass, the defendant responded that she was asked whether she was under the influence, whether she was aware of what she was doing, and if she had in any way been threatened to accept the plea. Transcript, October 6, 2008, p. 21. She further indicated that these were the only questions she had been asked. Transcript, October 6, 2008, p. 21. While it is certainly possible that a judge canvassing a plea might inadvertently fail to ask one or two of the constitutionally required questions, it borders almost on the absurd to suggest that a judge, intentionally or otherwise, would conduct a plea canvass consisting of just those three questions.
Given that the parties assumed at oral argument that the court possessed such discretion, the court deems it appropriate to address the merits of the defendant's claim, notwithstanding the conclusion reached by the court regarding jurisdiction. A resolution of the claim on the merits is also advisable given certain dicta in footnote nine of State v. Parra, supra, in which the Court, without any discussion of the jurisdictional question, suggests that a trial court's failure to vacate a plea entered more than three years earlier may be an abuse of discretion under some circumstances.
See footnote 4 of this decision.
The State suggests that the defendant, rather than actually remembering questions asked of her by the judge in 1985, was merely parroting back some of the questions that she happened to hear during this court's canvass of another defendant whose case was called shortly before the hearing on the instant matter convened.
The defendant has offered no other evidence whatsoever in support of her recollection. She cannot produce the transcript of the 1985 plea proceedings due to the fact that she waited until 2008 to file the instant motion. This delay is made particularly inexcusable given the fact that, by her own admission, the defendant learned about the potential for adverse immigration consequences within a year or two after the date of her plea. Transcript, October 6, 2008, pp. 16-17. She has failed to produce any witnesses who may lend support to her version of events — for example, from her then lawyer (or even a notation from his or her file) or from someone with whom the defendant may have discussed the alleged flaw in the plea canvass at any time during the last twenty years. Rather, she simply asks this court to accept her recollection of what occurred in 1985, and to allow her now to withdraw her plea.
It is worth noting that the State contends that the transcript well may have shown that, in fact, the immigration advisement was included in the court's canvass. Of course, there is no way to know what the transcript would have or would not have shown, but it seems to this court unfair that the absence of the transcript would work to the defendant's advantage — particularly where, as here, the transcript's unavailability is due solely to the defendant's two decades of inaction. In this regard, it is worth noting that § 54-1j(c) originally provided that, in the absence of a formal record showing the advisement had been given, the court was to presume that the advisement had been omitted. This presumption was removed from the statute in 1997. While this change may not mean that the absence of a record creates a presumption that the advisement was given, it certainly counsels against placing the State at any disadvantage in a case like the present one.
Given how long ago the defendant became aware of the immigration implications of her guilty plea, the court cannot help but be somewhat suspicious about the timing of the defendant's request to vacate the plea. Recalling that the defendant entered her plea in 1985 and thereafter served a two-year period of incarceration, it becomes clear that, curiously, the defendant filed her motion to vacate perhaps as little as only a year after the expiration of the twenty-year preservation period for the records and transcripts of her conviction. See footnotes 2 and 3 of this decision; Practice Book § 7-13(i); General Statutes § 51-36(c)(1). In the court's view, it was precisely this type of situation that the legislature was attempting to prevent by establishing the three-year statute of limitations. See State v. Parra, supra, 251 Conn. 631 (the three-year limit "`would close a wide loop hole available to convicted offenders in order to obtain a new trial' by responding to the growing problem of defendants seeking to withdraw their pleas many years after they had been entered."), quoting 40 H.R. Proc., supra, pp. 4699-700.
The persuasiveness of the defendant's claim is undermined further by her failure to show that her case is compelling enough to warrant the extraordinary relief she seeks. As the parties recognized at oral argument, if the court has the discretion to consider requests to vacate guilty pleas made beyond the three-year limitation period, that discretion may only be exercised in compelling cases. Indeed, during the debate on the bill which became P.A. 97-256, § 6, Representative Lawlor noted that "in the event that there were a compelling case" the court could consider such requests to vacate pleas. State v. Parra, supra, 251 Conn. 630, quoting 40 H.R. Proc., supra, p. 4701. Although the legislature was not specific as to the circumstances that may amount to a compelling case, it is clear to the court that the legislature did not intend to provide all defendants, many years after pleas have been entered and evidence destroyed, the means with which to vacate their guilty pleas. See State v. Malcolm, supra, 257 Conn. 664-65.
In the present case, the defendant initially was charged with two serious felony offenses: possession of narcotics with the intent to sell and possession of a gun. Transcript, October 6, 2008, p. 2. She ultimately pleaded guilty to a felony weapons violation and was sentenced not merely to probation, but to a two-year (out of a maximum three-year, see General Statutes § 53-206) term of imprisonment. Prior to her arrest in Connecticut, the defendant had been arrested on a number of occasions in the state of Florida for charges including prostitution, loitering, prowling, and petty theft, and, shortly after her release from incarceration on the Connecticut charges in 1987, the defendant committed another drug offense in Florida. Transcript, October 6, 2008, p. 21.
The serious nature of the offense at issue here (perhaps best reflected in the sentence imposed), coupled with the fact that it is not the defendant's only criminal conviction, militates against characterizing the defendant's situation as the type of "compelling case" that would warrant the court to exercise its limited discretion. To vacate the defendant's plea at this time would not only reopen her prosecution, but would effectively end it. Even assuming that the witnesses to this 1985 incident are still alive, and that they can remember the incident well enough to testify about it under oath, the state still could not proceed with a new prosecution of this case because the gun that served as the basis for the defendant's conviction has been destroyed. Transcript, October 6, 2008, p. 2. Therefore, while the defendant may formally be asking this court to allow her to vacate her guilty plea and enter a plea of not guilty, she is in essence asking that the record of her conviction be vacated, her Connecticut record be expunged, and her case be dismissed with prejudice. In the court's opinion, the conviction at issue here relates to conduct and to a criminal charge which are simply too serious to warrant such relief.
Ironically, if there were a new trial, the State's witnesses likely would be vigorously cross-examined by the defendant on their ability to recall the events of 1985, when at the hearing on the instant motion the defendant urged the court to believe that her recollection of the plea canvass conducted in the same year was accurate and unassailable.
Unlike the "simple possession of marijuana" case that concerned Representative Farr during the debate over the amendment to § 54-1j, a concern which led to the "compelling case" reference by Representative Lawlor, the defendant's conviction here was far more serious. See State v. Parra, supra, 251 Conn. 631 ("my concern with this [three-year limitation] would be that somebody who might have pleaded guilty to a drug type situation . . . a simple possession of marijuana" [internal quotation marks omitted]), quoting 40 H.R. Proc., supra, pp. 4700-701, remarks of Representative Robert Farr.
Despite the defendant's considerable efforts, the court ultimately is not persuaded that its conclusion in this regard should be altered by virtue of the defendant's personal growth and positive accomplishments during the two decades since her conviction. The defendant's situation, although unfortunate, is not unique. She is undoubtedly one of many thousands of individuals in this country whose immigration status is imperiled by a criminal conviction (often from long ago) that creates a heightened risk of deportation or other adverse immigration consequences, notwithstanding the individual's significant and positive contributions to society since the date of the conviction. It is commendable that the defendant has turned her life around; however, the fact that she is now rehabilitated does not provide a basis sufficient to overcome the seriousness of her offense and the prejudice to the State if the court vacates her guilty plea. See State v. Malcolm, supra, 257 Conn. 665 ("[J]udges should only grant a post-sentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the [State]."). The defendant seeks extraordinary relief, perhaps greater than would be afforded her by a pardon. Such relief must be reserved for truly compelling circumstances — circumstances that this court believes are lacking here.
The defendant testified that since her last conviction in 1988 she successfully completed a drug treatment program, graduated from college and purchased a home. She has continuously worked as a paralegal and has remained very active in Narcotics and Alcoholics Anonymous. Transcript, October 6, 2008, pp. 18, 24. The defendant is also the primary caretaker for her teenage daughter and ailing mother. Transcript, October 6, 2008, p. 13.
As the court understands it, a pardon will not insulate the defendant from adverse immigration consequences because the federal courts apparently have held that a state pardon does not invalidate a conviction in such a way as to prohibit the federal government from relying on the conviction as a basis for deportation.
In sum, the defendant has failed to produce sufficient credible evidence supporting her claim that she did not receive an immigration advisement at the time of her plea in 1985. She has also failed to persuade this court that, even if her plea canvass suffered from this flaw, her case is compelling enough to justify the vacating of her plea particularly given the irreversible prejudice that will result to the State. For these reasons, the court hereby denies the defendant's motion to vacate on the merits.
CONCLUSION CT Page 2574
Based on the foregoing, the court concludes in the first instance that it is without jurisdiction to consider the defendant's motion to vacate her 1985 guilty plea. In addition, having considered the merits of her claim, the court concludes that the defendant failed to meet her burden of proving that she did not receive an immigration advisement in 1985 and, further, that her situation presents the type of compelling case in which this court should exercise its discretion to vacate her plea. The defendant's motion to vacate her guilty plea is therefore dismissed for lack of subject matter jurisdiction, and, alternatively, denied on its merits.