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.”