Second Regular Session
Seventy-third General Assembly
STATE OF COLORADO
INTRODUCED
LLS NO. 22-0628.01 Jacob Baus x2173
SENATE BILL 22-103
Senate Committees House Committees
Judiciary
A BILL FOR AN ACT
C
ONCERNING A REMEDY FOR IMPROPERLY ENTERED GUILTY PLEAS .101
Bill Summary
(Note: This summary applies to this bill as introduced and does
not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov
.)
The bill finds that some criminal defendants were not effectively
advised of immigration consequences to a guilty plea, and therefore, these
defendants did not knowingly, intelligently, and voluntarily enter a guilty
plea.
The bill authorizes these persons to petition the court for an order
vacating the guilty plea.
SENATE SPONSORSHIP
Gonzales,
HOUSE SPONSORSHIP
(None),
Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.
Capital letters or bold & italic numbers indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute. Be it enacted by the General Assembly of the State of Colorado:1
SECTION 1. In Colorado Revised Statutes, add 18-1-410.6 as2
follows:3
18-1-410.6. Relief from improperly entered guilty pleas for4
certain misdemeanor and municipal offenses - legislative declaration.5
(1) T
HE GENERAL ASSEMBLY FINDS THAT :6
(a) S
INCE THE COLORADO SUPREME COURT DECISION IN PEOPLE V.7
P
OZO, 746 P.2d 523 (COLO. 1987), NONCITIZEN DEFE NDANTS IN8
C
OLORADO HAVE A CONSTITUTI ONAL RIGHT TO EFFECTIVE ASSISTANCE OF9
COUNSEL THAT REQUIRES DEFENSE COUNSEL WHO KNOWS THE CLIENT IS10
A NONCITIZEN TO INFORM ITSELF OF RELEVANT IMMIGRATION LAW . THE11
U
NITED STATES SUPREME COURT IN PADILLA V. KENTUCKY, 559 U.S. 35612
(2010)
FURTHER HELD THAT DEFENSE COUNSEL MUST INFORM A CLIENT OF13
THE IMMIGRATION CONSEQUENCES OF A PLEA .14
(b) M
ANY NONCITIZEN DEFENDANTS RECEIVED INEFFECTIVE15
ASSISTANCE OF COUNSEL REGARDING IMMIGRATION CONSEQUENCES OF A16
GUILTY PLEA.17
(c) M
ANY PRO SE NONCITIZEN DEFENDANTS RECEIVED18
INADEQUATE ADVISEMENTS THAT DID NOT EXPLAIN THAT THE RIGHT TO19
COUNSEL INCLUDES THE RIGHT TO BE ADVISED OF IMMIGRATION20
CONSEQUENCES OF A GUILTY PLEA . CONSEQUENTLY, MANY PRO SE21
NONCITIZEN DEFENDANTS DID NOT KNOWINGLY , INTELLIGENTLY, AND22
VOLUNTARILY WAIVE THEIR RIGHT TO COUNSEL WHEN ENTERING A GUILTY23
PLEA.24
(d) M
ANY NONCITIZEN DEFENDANTS HAVE BEEN UNFAIRLY25
DEPRIVED OF THE OPPORTUNITY TO CHALLENGE AN UNCONSTITUTIONAL26
GUILTY PLEA DUE TO THE TIME LIMITATIONS CONTAINED IN SECTION27
SB22-103
-2- 16-5-402, DESPITE VALID CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL1
OR AN INVALID WAIVER OF THE RIGHT TO COUNSEL .2
(2) T
HEREFORE, THE GENERAL ASSEMBLY DECLARES THAT3
NONCITIZEN DEFENDANTS MUST HAVE THE OPPORTUNITY TO4
MEANINGFULLY CHALLENGE AN UNCONSTITUTIONALLY ENTERED GUILTY5
PLEA FOR CERTAIN CLASS1 MISDEMEANORS, CLASS 2 MISDEMEANORS, AND6
MUNICIPAL OFFENSES.7
(3) (a) N
OTWITHSTANDING THE TIME LIMITATION CONTAINED IN8
SECTION 16-5-402, AT ANY TIME FOLLOWING THE ENTRY OF A GUILTY9
PLEA, A CRIMINAL DEFENDANT MAY CHALLENGE THE GUILTY PLEA ON THE10
GROUNDS SET FORTH IN SUBSECTION (4) OF THIS SECTION TO A:11
(I) C
LASS 1 OR CLASS 2 MISDEMEANOR THAT IS NOT DEFINED IN12
SECTION 24-4.1-302 (1) OR TITLE 42, AND COMMITTED BEFORE MARCH 1,13
2022;
OR14
(II) M
UNICIPAL OFFENSE THAT IS NOT SUBSTANTIALLY SIMILAR TO15
AN OFFENSE DEFINED IN SECTION 24-4.1-302 (1) OR TITLE 42, AND16
COMMITTED BEFORE MARCH 1, 2022.17
(b) T
HE COURT IN WHICH THE GUILTY PLEA WAS ORIGINALLY18
ENTERED HAS JURISDICTION AND AUTHORITY TO DECIDE THE MOTION .19
(4) A
DEFENDANT MOVING TO VACATE A GUILTY PLEA TO A CLASS20
1
OR CLASS 2 MISDEMEANOR, OR A MUNICIPAL OFFENSE, MUST, IN GOOD21
FAITH, ALLEGE THE FOLLOWING:22
(a) A
S A RESULT OF THE GUILTY PLEA , THE DEFENDANT HAS23
SUFFERED, IS CURRENTLY SUFFERING, OR WILL SUFFER AN ADVERSE24
IMMIGRATION CONSEQUENCE ; AND25
(b) T
HE GUILTY PLEA WAS OBTAINED IN VIOLATION OF THE26
CONSTITUTION OR LAWS OF THE UNITED STATES OR OF THIS STATE ON ONE27
SB22-103
-3- OR MORE OF THE FOLLOWING GROUNDS :1
(I) T
HE DEFENDANT WAS NOT ADEQUATELY ADVISED OF THE2
IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA ;3
(II) T
HE DEFENDANT DID NOT KNOWINGLY , INTELLIGENTLY, AND4
VOLUNTARILY WAIVE THE RIGHT TO COUNSEL BECAUSE THE DEFENDANT5
WAS NOT ADVISED THAT THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO6
BE ADVISED REGARDING THE IMMIGRATION CONSEQUENCES OF A GUILTY7
PLEA; OR8
(III) T
HE GUILTY PLEA WAS CONSTITUTIONALLY INFIRM FOR ANY9
OTHER REASON SET FORTH IN SECTION 18-1-410 (1).10
(5) (a) U
PON RECEIPT OF THE DEFENDANT 'S MOTION, THE11
PROSECUTION SHALL RESPOND WITHIN TWENTY -ONE DAYS OR REQUEST12
ADDITIONAL TIME FOR GOOD CAUSE SHOWN . IF A RESPONSE IS NOT FILED,13
THE DEFENDANT'S MOTION IS DEEMED UNOPPOSED, AND THE COURT SHALL14
GRANT THE DEFENDANT 'S MOTION. IF THE PROSECUTION OPPOSES THE15
DEFENDANT'S MOTION, IT SHALL ALLEGE, IN GOOD FAITH, THE FACTS UPON16
WHICH IT BASES ITS OPPOSITION. IF THE RESPONSE RAISES AN ISSUE OF17
MATERIAL FACT, THE COURT SHALL SET THE MATTER FOR AN EVIDENTIARY18
HEARING.19
(b) U
NLESS THE PROSECUTION PROVES BY A PREPONDERANCE OF20
THE EVIDENCE THAT THE DEFENDANT WILL NOT SUFFER AN IMMIGRATION21
CONSEQUENCE OR THAT THE GUILTY PLEA WAS CONSTITUTIONALLY22
ENTERED, THE COURT SHALL GRANT THE DEFENDANT 'S MOTION.23
(c) F
OR CLAIMS RAISED PURSUANT TO SUBSECTION (4)(b)(II) OF24
THIS SECTION, THE PROSECUTION SHALL NOT RELY ON WRITTEN25
DOCUMENTS, SUCH AS A DEFERRED JUDGMENT AGREEMENT , PLEA26
PAPERWORK, OR TRANSCRIPT OF A COURT COLLOQUY , TO RAISE AN ISSUE27
SB22-103
-4- OF MATERIAL FACT TO OBTAIN AN EVIDENTIARY HEARING OR DEFEAT A1
CLAIM AT THE HEARING UNLESS THE DOCUMENTS CLEARLY SHOW THAT2
THE DEFENDANT WAS INFORMED BY THE COURT THAT THE RIGHT TO3
COUNSEL INCLUDED THE RIGHT TO BE ADVISED REGARDING THE4
IMMIGRATION CONSEQUENCES RESULTING FROM A GUILTY PLEA AND THAT5
THE DEFENDANT THEN KNOWINGLY , INTELLIGENTLY, AND VOLUNTARILY6
WAIVED THAT RIGHT.7
(6) I
F THE DEFENDANT SUCCEEDS IN CHALLENGING A GUILTY PLEA8
PURSUANT TO THIS SECTION, THE COURT SHALL VACATE THE GUILTY PLEA9
AS CONSTITUTIONALLY INFIRM.10
SECTION 2. Safety clause. The general assembly hereby finds,11
determines, and declares that this act is necessary for the immediate12
preservation of the public peace, health, or safety.13
SB22-103
-5-