Trial Court’s Failure to Advise Unrepresented Misdemeanor Defendant of Possible Immigration Consequences From Guilty Plea Satisfies Fair and Just Standard for Plea Withdrawal

State v. Lopez, Minn.Ct.App., 2/8/11.  Without benefit of counsel, Mr. Lopez, who is a permanent resident but not a citizen, pled guilty to a misdemeanor theft charge.  The trial court did not advise Mr. Lopez that if he were not citizen that the guilty plea may result in deportation, exclusion from admission to the United States or denial of naturalization.  This advisory is required under Rule 15.02, subd. 1(3).  Before sentencing he asked to withdraw the plea.  The trial court said no under the post sentencing standard of correcting a manifest injustice.

This is the wrong standard.  The correct one is “fair and just reason.”  The court of appeals declares that the rule’s requirement of the advisory is “fundamental” and defines the minimum standards for insuring that a plea is valid.  The court of appeals also considered that Mr. Lopez was not represented by counsel, that he did not sign a written plea petition, that he had only limited experience with the criminal justice system.  Finally, the court pointed to the recent Padilla decision to support its conclusion that the immigration consequences are “deeply important.” 

Court Approves Career Offender Sentence That is Eight Times Presumptive Sentence

Vickla v. State, Minn.S.Ct., 1/26/2011.  Mr. Vickla pled guilty to offering forged checks in an amount greater that $35,000.00.  He admitted that he qualified as a career offender under Minn.Stat. 609.1095, subd. 4, and agreed that the trial court could sentence him.  The trial court maxed him out at 240 months.  After a while, Mr. Vickla filed a post conviction petition to complain about the sentence.  He got no relief but the court of appeals sent the case back for resentencing, saying that the trial court abused its discretion.  The supreme court reversed the court of appeals.

The presumptive guidelines sentence was 33 months, so the sentence imposed was just shy of eight times the presumptive sentence.  Mr. Vickla has eleven prior felony convictions but nine of them had decayed.  The supreme court seemingly declines the state’s suggestion that trial courts have unfettered discretion to sentence under 609.1095.  Instead, the court looks to 244.11, subd. 2(b), which says that an appellate court may review a sentence to determine whether it is inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  It concludes that the sentence is not contrary to this statute.

An appellate court may consider comparable sentences in other departure cases to determine if the sentence under review is unjustifiably disparate, but to be “comparable” the sentence compared must be based upon the same or similar reasons.  Two of the three cases that the court of appeals looked at in reversing Mr. Vickla’s sentence did not involve career offenders and were thus not “comparable”.  The third case was a career offender case, with the sentence at the maximum sentence; that was good enough for the supreme court.  To seal the deal the court dropped in a footnote to list previous cases which had upheld a statutory maximum sentence for a career offender.  What the court is telling trial courts, without saying it is that if the statutory requirements under 609.j1095, subd. 4, the trial court does, indeed, have unfettered discretion to max out the defendant.

Once a Sentence Expires, The Court Has No Jurisdiction Either to Amend or Modify It.

State v. Hannam, Minn.Ct.App., 1/18/2010.  Back in 2006 the state charged Mr. Hannam with four counts of ineligible person on possession of a firearm.  Upon conviction, he got four concurrent sixty month sentences.  On the first appeal, the appellate court said that all four convictions arose out of the same behavioral incident so it threw out three of the four convictions and remanded for resentencing.

The trial court resentenced Mr. Hannam to twenty-seven months, rejecting the state’s argument that the correct sentence was the mandatory minimum sixty months.  That sentence expired during the ninety days that the state had to file a notice of appeal.

The problem was, however, the state did not file its notice of appeal until until after expiration of the sentence.  Once the sentence expired, the appellate court lost jurisdiction either to amend or modify the sentence, even an improper one.  A sentence expires once a defendant completes the terms of imprisonment and supervised release.  See State ex rel. Peterson v. Fabian, 784 N.W.2d 843, 846 (Minn. App. 2010).  The expiration of sentence bars any further sanctions for that conviction.  State v. Whitfield, 483 N.W.2d 102, 104 (Minn. App. 1992).