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

By Tom Jackman
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.

Even immigrants with green cards are subject to deportation if they commit a felony or misdemeanor that results in a year or more of prison time. Crimes of "moral turpitude" involving fraud or theft and crimes involving guns, drugs or domestic abuse are also grounds for deportation. Immigrants sometimes agree to plea deals because their attorneys fail to "take that into account when they negotiated with the prosecution," said Rob Robertson, a Fairfax lawyer who practices immigration and criminal law.

Immigration lawyers generally enter the fray after the criminal case is long over. "These are people that don't deserve to be banished from the U.S. for a crime they've already served the punishment for," Robertson said.

Even before Padilla, Virginia lawyers were trying to reopen such cases using an English common law writ called "coram vobis," which the courts interpret to mean "the error before us." Virginia law allows the writ to be used "for any clerical error or error in fact for which a judgment may be reversed or corrected."

Some judges allow it in cases affecting immigration status. Some don't. In Arlington County in 2006, Circuit Court Judge William T. Newman Jr. reduced a 2001 sentence to less than a year, the standard for deportation. Newman wrote, "If this Court had been made aware of the fact that the defendant's "single criminal conviction could result in deportation without the possibility of discretionary relief, an alternative sentence may have been reached."

Loudoun General District Court Judge Dean S. Worcester cited Newman's opinion and Padilla in an order last month reopening the 2008 case of a woman who pleaded guilty to misdemeanor embezzlement, receiving a 12-month jail sentence. The defense attorney had misinformed the woman of the consequences of her plea, he wrote, "a fact not known to the Defendant or to the Court when the plea was made."

Rather than resentence the woman, Worcester ordered that the case be handled as though the defendant had just been arrested. Fisher was outraged.

"I think it is the Commonwealth's Attorney's obligation to hold the line on these types of arguments and rulings," Fisher said. "When an extremely ancient legal procedure, which is limited to correcting factual or clerical errors, is used in this fashion, it turns the legal system on its ear."

The Morris case

The state Supreme Court's ruling in the Morris case should tip the scales. Morris, of Alexandria, was a refugee from Liberia who arrived in America in 1993. In 1997, he admitted stealing $15,000 as part of a ring of Sears employees who bought sale items and returned them for full credit.

Morris, who had a green card by then, was charged with grand larceny. An Alexandria public defender told him that his immigration status wouldn't be affected by a plea to a reduced charge of petty larceny. Haddock sentenced him to a year, with 11 months suspended, and 30 days on work release. The judge also ordered that Morris make restitution, which he did.

Morris subsequently became a pastor, married, moved to North Carolina and raised four children. He applied for citizenship in 2004. In 2005, he learned that he was subject to deportation. In 2008, an immigration judge told him that he was an "aggravated felon" and must be deported, Haddock wrote in his order.

Immigration lawyer Jennifer S. Varughese filed a coram vobis motion with Haddock. After a July 2009 hearing, Haddock reduced Morris's sentence by a day. Deportation proceedings have since been dismissed, Robertson said.

But if the Virginia Supreme Court rules that Haddock used the writ improperly, Morris's original sentence would stand. He could again face deportation.

"We have consistently opposed these writs," Alexandria Commonwealth's Attorney S. Randolph Sengel said. "If commission of a crime lands you in a deportation hearing, deal with it there. Don't come crying back to a local court years later, asking . . . to alter the record . . . and pretend you were never found guilty or sentenced to serve time in the first place."

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