Va. judges revisit noncitizens' convictions, sentences to prevent deportation

Washington Post Staff Writer
Wednesday, December 29, 2010; 11:41 PM

A recent U.S. Supreme Court ruling that noncitizens in criminal cases must be advised of the possible consequences of a conviction has sparked a flurry of appeals by defendants who claim that they didn't know that conviction would lead to deportation.

But in Virginia, a similar battle has emerged over whether judges can revisit and reopen old cases or even summarily revise the sentences to avoid a convict's removal from the country.

A Loudoun County General District Court judge recently reopened four cases involving defendants who say they would not have pleaded guilty if they had known that they would be deported. In one instance this month, Loudoun prosecutors sought a court order to stop the judge from reopening such cases, but a Circuit Court judge refused.

"Virginia law should not be construed to permit a 'do-over,' just because someone has now figured out that committing a crime may have collateral consequences," said James P. Fisher, chief deputy commonwealth's attorney for Loudoun.

In another example, an Alexandria judge reopened a 12-year-old case, reducing the defendant's sentence so that deportation was no longer required. "To allow the desire for finality to trump the need for justice in this case would be a travesty," Alexandria Circuit Court Judge Donald M. Haddock wrote in an order last year in revisiting the 1997 case of Emmanuel Morris.

Morris's case and a similar one from Virginia Beach were argued before the Virginia Supreme Court last month. Rulings in both are expected early next year. Prosecutors hope the state's high court shuts the door on the use of an obscure writ to reopen old cases in a manner that not all judges allow. Immigration lawyers want the door to stay open to stave off deportations of their clients, many of whom are in the country legally.

Effective counsel

Judges and lawyers across the country have scrambled to deal with the ramifications of the U.S. Supreme Court's March ruling in Padilla v. Kentucky, which clarified a defendant's Sixth Amendment right to counsel.

The Supreme Court previously ruled that the right to counsel is the right to effective counsel. An ineffective attorney is grounds for an appeal and, possibly, a new trial, the court said. Jose Padilla, a Honduran native who had been in the country legally for nearly 40 years, was advised by a lawyer that he didn't have to worry about deportation when he pleaded guilty to smuggling marijuana.

Justice John Paul Stevens wrote in the decision that "counsel must inform her client whether his plea carries a risk of deportation. . . . Deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."

A similar case involving a 2006 burglary conviction from Harford County was argued before the Maryland Supreme Court this month. Defense attorneys invoked the Padilla case, hoping that a guilty plea could be withdrawn.

State and federal courts are revising their guilty plea forms - which must be signed by defendants - to indicate that the defendant has been advised of the possible immigration ramifications of a conviction. And defense lawyers are studying immigration law to understand what crimes or sentences might lead to deportation.

In Virginia, reopening cases, as a rule, has been hard, especially after a guilty plea. State rules require that most post-trial actions occur within 21 days or that they be handled as part of an appeal. And few criminal defense lawyers are familiar with immigration law.

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