Nathan Bass Dec. 31, 2012, 3:03pm

DENVER (Legal Newsline) - A legal permanent resident living in Colorado may not seek post-conviction review of his guilty plea for felony possession with intent to distribute marijuana, but he can seek to withdraw the guilty plea through another legal procedure.

The Colorado Supreme Court ruled Dec. 20 on the case of Kazadi v. The People of the State of Colorado. Justice Gregory J. Hobbs Jr. delivered the majority opinion, and Chief Justice Michael L. Bender wrote a dissent.

"The prosecution charged Yanick Kazadi, a legal permanent resident born in the Congo who entered the United States in 2003 at age 13, of possession with intent to distribute marijuana, a class four felony, in violation of former section 18-18-406(8)(b), C.R.S. (2008) (repealed 2010), and possession of not more than one ounce of marijuana, a class two petty offense under section 18-18-406(1), C.R.S. (2012)," the opinion states.

In November 2008, officers stopped a speeding car in which Kazadi was a passenger and they searched the car when a bullet fell out of the driver's lap as the driver exited the vehicle. The officers found "three guns, two bullet magazines, numerous baggies of marijuana, two baggies of ecstasy pills and over $400 in cash."

Kazadi pleaded guilty to possession of marijuana with the intent to distribute, a class four felony, and possession of a schedule V controlled substance, codeine, a class one misdemeanor.

Kazadi's plea agreement stipulated that judgment of conviction and the imposition of sentence on the felony plea would be deferred and he would be allowed to withdraw the guilty plea if he complied with the two-year probation that was imposed for his misdemeanor possession of codeine conviction.

There was a clause in the guilty plea advisement that disclosed possible immigration removal consequences to the plea and in which the court stated "this court has no authority regarding immigration issues."

After a later arrest by the Aurora Police Department in February 2009, the Immigrations and Customs Enforcement placed a detainer on Kazadi and agents took Kazadi into custody on April 1, 2009 for removal purposes.

Under U.S. law, an alien convicted of a felony of illicit trafficking in a controlled substance is subject to deportation. The relevant statute defines "conviction" as a guilty plea and subjects the defendant to "presumptive mandatory deportation."

As a result of the deportation action, Kazadi filed a Crim. P. 35(c) motion challenging his guilty plea based on ineffective assistance of counsel. He argued that he was not advised by counsel of the removal consequences of his plea or he would not have pled guilty.

The district court denied the motion, ruling that he was made aware of the possible immigration penalties by the clause in the plea advisement and so he was not prejudiced by his counsel's lack of advisement.

The court of appeals then ruled that the deferred judgment he received as part of his plea agreement was not a "judgment of conviction" reviewable under Crim. P. 35(c) but that he could instead pursue a motion to withdraw his felony plea under Crim. P. 32(d).

The Supreme Court affirmed the court of appeals, ruling that Crim. P. 35(c) was inapplicable and advising, "[i]n Kazadi's case, ineffective assistance of counsel would be a fair and just basis for withdrawal of his guilty plea pursuant to Crim. P. 32(d)."

Chief Justice Bender disagreed with the majority holding and issued a dissent.

"In my view, it is incongruous that a defendant who has received the privilege and benefit of a more lenient deferred judgment would have a more limited right of post-conviction review to this constitutional claim than a defendant who has received a more traditional sentence to prison, jail, or probation, particularly because "[t]he conditions imposed in the stipulation [for the deferred judgment] shall be similar in all respects to conditions permitted as part of probation" and may require the defendant to perform community service, to make donations, or to pay restitution."

"Despite Kazadi having signed this advisement form, I remain unconvinced that the motion, files, and record of the case clearly establish that Kazadi is not entitled to a hearing on his ineffective assistance of counsel claim.

"The record is unclear whether Kazadi's attorney advised him of the probable outcome or consequences of his decision to plead guilty ... The decision to plead guilty can be an intelligent one only if the defendant has been advised fully as to his or her rights and as to the probable outcome.

"I find it difficult to presume that Kazadi knew the probable outcome of pleading guilty to an offense that would subject him to mandatory deportation and permanent exclusion from the United States.

"Kazadi has been living in the United States as a lawful permanent resident since childhood, and he claims to have no friends, family, or other connections in his birth country of Congo. Under these circumstances, I would conclude that Kazadi is entitled to a hearing on his "Rule 35(c) claim."

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