The Colorado Supreme Court held that noncitizens trying to challenge a deferred judgment based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), may do so under the state’s rule for motion to withdraw pleas but they may not seek review of the judgment and sentence because none exists. Kazadi v. People, No. 11SC264, slip op. (Colo. Dec. 20, 2012) (Hobbs, J., writing for the court; Bender, C.J., dissenting).

Deferred judgment, the court explained, essentially holds the criminal proceeding in abeyance. As such, no conviction or sentence is entered. In the court’s words, “a deferred judgment is a continuance of the defendant’s case in lieu of the imposition of sentence, where a sentence may be issued if the defendant fails to abide by prescribed conditions.” Kazadi, No. 11SC264, slip op. at 14. Since no conviction or sentence exists, there can be nothing for a court to review. Kazadi, No. 11SC264, slip op. at 13. Consequently, a motion to review under Colo. Rule of Criminal Procedure 35(c) is improper.

In contrast, the court explained that a motion to withdraw a guilty plea under Colo. Rule of Crim. P. 32(d) is appropriate where a deferred judgment was entered. Kazadi, No. 11SC264, slip op. at 13. Importantly, it explained that an ineffective assistance claim may be brought using a motion to withdraw. Kazadi, No. 11SC264, slip op. at 10.

Given my interests, the complication arises when other jurisdictions get involved—namely, DHS. According to the dissent, “the irreversible effects of some collateral consequences may have already occurred—such as the mandatory deportation to Congo that Kazadi faces here—and may therefore render the benefit of a successfully completed deferred judgment of little or no value to the defendant.” Kazadi, No. 11SC264, slip op. at 18. Colorado’s AILA chapter raised similar concerns in its amicus brief to the court based on the BIA’s position in Matter of Chairez-Castañeda, 21 I&N Dec. 44, 48 (BIA 1995), that adjudications pursuant Colorado’s deferral of judgment statute are convictions for immigration law purposes.

The idea that the dissenter, Chief Justice Bender, is suggesting is that noncitizens will have less reason to seek or accept deferred judgment or, if they do take it, they’ll have less reason to abide by the terms, because they’ll potentially face removal but won’t have the ability to vacate the conviction until they violate the terms of the deferred judgment conviction because it’s only upon violation of the terms that they have a conviction under Colorado law. In other words, Chief Justice Bender seems to think the majority opinion creates perverse incentives to violate the deferred judgment conditions, while reducing incentives for defendants to use a mechanism that promotes efficient criminal adjudications.

This is perverse indeed. Still, there’s some good news contained in the majority’s opinion. It clearly leaves open an option through which to raise ineffective assistance claims, including those based on Padilla v. Kentucky, 130 S. Ct. 1473 (2010). That, of course, raises a host of complications and obstacles, but it’s certainly better than nothing.

[Update (March 31, 2014): An Ohio intermediate appellate court came to a similar conclusion about a pretrial diversion program available in Cuyahoga County, the county in which Cleveland is located. State v. Kona, No. 100191, 2014-Ohio-1242 (Ohio Ct. App. March 27, 2014).]

[Update (April 6, 2014): The Tennessee Supreme Court took a similar approach to a guilty plea expunged after successful completion of judicial diversion in accordance with Tennessee state law. Rodriguez v. State of Tennessee, No. M2011-01485-SC-R11-PC, slip op. (Tenn. April 4, 2014).]

[Update (March 26, 2015): The Colorado Court of Appeals distinguished Kazadi and allowed a migrant to attempt to withdraw his deferred judgment conviction. People v. Corrales-Castro, 2015 COA 34 (Colo. Ct. App. March 26, 2015).]