Second Regular Session
Seventy-third General Assembly
STATE OF COLORADO
REVISED
This Version Includes All Amendments Adopted
on Second Reading in the Second House
LLS NO. 22-0628.01 Jacob Baus x2173
SENATE BILL 22-103
Senate Committees House Committees
Judiciary 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.
HOUSE
Amended 2nd Reading
April 1, 2022
SENATE
3rd Reading Unamended
March 9, 2022
SENATE
Amended 2nd Reading
March 8, 2022
SENATE SPONSORSHIP
Gonzales, Buckner, Coleman, Coram, Donovan, Fenberg, Fields, Gardner, Hansen, Hisey,
Holbert, Kolker, Lee, Moreno, Pettersen, Priola, Rankin, Rodriguez, Simpson, Story
HOUSE SPONSORSHIP
Tipper,
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 A TIME LIMITATION
CONTAINED IN SECTION 16-5-402,27
103
-2- A MUNICIPAL ORDINANCE, OR A MUNICIPAL COURT RULE OF PROCEDURE ,1
DESPITE VALID CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL OR AN2
INVALID WAIVER OF THE RIGHT TO COUNSEL .3
(e) P
ROTECTING THE CONSTITUTIONAL RIGHTS OF ALL
4
C
OLORADANS AND ENSURING THAT ALL DEFENDANTS ARE TREATED
5
CONSISTENTLY IN THEIR OPPORTUNITY TO AFFIRM THEIR CONSTITUTIONAL6
RIGHTS IS A MATTER OF STATEWIDE CONCERN .7
(2) T
HEREFORE, THE GENERAL ASSEMBLY DECLARES THAT8
NONCITIZEN DEFENDANTS MUST HAVE THE OPPORTUNITY TO9
MEANINGFULLY CHALLENGE AN UNCONSTITUTIONALLY ENTERED GUILTY10
PLEA FOR CERTAIN CLASS1 MISDEMEANORS, CLASS 2 MISDEMEANORS, AND11
MUNICIPAL OFFENSES.12
(3) (a) N
OTWITHSTANDING A
LIMITATION CONTAINED IN SECTION13
16-5-402,
A MUNICIPAL ORDINANCE, OR A MUNICIPAL COURT RULE OF
14
PROCEDURE, AT ANY TIME FOLLOWING THE ENTRY OF A GUILTY PLEA , A15
CRIMINAL DEFENDANT MAY CHALLENGE THE GUILTY PLEA ON THE16
GROUNDS SET FORTH IN SUBSECTION (4) OF THIS SECTION TO A:17
(I) C
LASS 1 OR CLASS 2 MISDEMEANOR THAT IS NOT DEFINED IN18
SECTION 24-4.1-302 (1) OR TITLE 42, AND COMMITTED BEFORE MARCH 1,19
2022;
OR20
(II) M
UNICIPAL OFFENSE THAT IS NOT SUBSTANTIALLY SIMILAR TO21
AN OFFENSE DEFINED IN SECTION 24-4.1-302 (1) OR TITLE 42, AND22
COMMITTED BEFORE MARCH 1, 2022.23
(b) T
HE COURT IN WHICH THE GUILTY PLEA WAS ORIGINALLY24
ENTERED HAS JURISDICTION AND AUTHORITY TO DECIDE THE MOTION .25
(4) A
DEFENDANT MOVING TO VACATE A GUILTY PLEA TO A CLASS26
1
OR CLASS 2 MISDEMEANOR, OR A MUNICIPAL OFFENSE, MUST, IN GOOD27
103
-3- FAITH, ALLEGE THE FOLLOWING:1
(a) A
S A RESULT OF THE GUILTY PLEA , THE DEFENDANT HAS2
SUFFERED, IS CURRENTLY SUFFERING, OR WILL SUFFER AN ADVERSE3
IMMIGRATION CONSEQUENCE ; AND4
(b) T
HE GUILTY PLEA WAS OBTAINED IN VIOLATION OF THE5
CONSTITUTION OR LAWS OF THE UNITED STATES OR OF THIS STATE ON ONE6
OR MORE OF THE FOLLOWING GROUNDS :7
(I) T
HE DEFENDANT WAS NOT ADEQUATELY ADVISED OF THE8
ADVERSE
IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA BY DEFENSE9
COUNSEL;10
(II) T
HE DEFENDANT DID NOT KNOWINGLY , INTELLIGENTLY, AND11
VOLUNTARILY WAIVE THE RIGHT TO COUNSEL BECAUSE THE DEFENDANT12
WAS NOT ADVISED THAT THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO13
BE ADVISED REGARDING THE IMMIGRATION CONSEQUENCES OF A GUILTY14
PLEA; OR15
(III) T
HE GUILTY PLEA WAS CONSTITUTIONALLY INFIRM FOR ANY16
OTHER REASON SET FORTH IN SECTION 18-1-410
(1)(a) TO (1)(d).17
(5) (a) U
PON RECEIPT OF THE DEFENDANT 'S MOTION, THE18
PROSECUTION SHALL RESPOND WITHIN SIXTY -THREE
DAYS OR REQUEST19
ADDITIONAL TIME FOR GOOD CAUSE SHOWN . IF A RESPONSE IS NOT FILED,20
THE DEFENDANT'S MOTION IS DEEMED UNOPPOSED, AND THE COURT SHALL21
GRANT THE DEFENDANT 'S MOTION. IF THE PROSECUTION OPPOSES THE22
DEFENDANT'S MOTION, IT SHALL ALLEGE, IN GOOD FAITH, THE FACTS UPON23
WHICH IT BASES ITS OPPOSITION. IF THE RESPONSE RAISES AN ISSUE OF24
MATERIAL FACT, THE COURT SHALL SET THE MATTER FOR AN EVIDENTIARY25
HEARING WITHIN TWENTY-ONE DAYS. 26
(b) U
NLESS THE PROSECUTION PROVES BY A PREPONDERANCE OF27
103
-4- THE EVIDENCE THAT THE DEFENDANT WILL NOT SUFFER AN ADVERSE1
IMMIGRATION CONSEQUENCE OR THAT THE GUILTY PLEA WAS2
CONSTITUTIONALLY ENTERED, THE COURT SHALL GRANT THE DEFENDANT'S3
MOTION.4
(c) F
OR CLAIMS RAISED PURSUANT TO SUBSECTION (4)(b)(II) OF5
THIS SECTION, THE PROSECUTION SHALL NOT RELY SOLELY
ON WRITTEN6
DOCUMENTS, SUCH AS A DEFERRED JUDGMENT AGREEMENT , PLEA7
PAPERWORK, OR TRANSCRIPT OF A COURT COLLOQUY , TO RAISE AN ISSUE8
OF MATERIAL FACT TO OBTAIN AN EVIDENTIARY HEARING OR DEFEAT A9
CLAIM AT THE HEARING UNLESS THE DOCUMENTS CLEARLY SHOW THAT10
THE DEFENDANT WAS INFORMED BY THE COURT THAT THE RIGHT TO11
COUNSEL INCLUDED THE RIGHT TO BE ADVISED REGARDING THE12
IMMIGRATION CONSEQUENCES RESULTING FROM A GUILTY PLEA AND THAT13
THE DEFENDANT THEN KNOWINGLY , INTELLIGENTLY, AND VOLUNTARILY14
WAIVED THAT RIGHT.15
(6) I
F THE DEFENDANT SUCCEEDS IN CHALLENGING A GUILTY PLEA16
PURSUANT TO THIS SECTION, THE COURT SHALL VACATE THE GUILTY PLEA17
AS CONSTITUTIONALLY INFIRM AND SET THE CASE FOR AN ARRAIGNMENT .
18
SECTION 2. In Colorado Revised Statutes, amend 13-10-103 as19
follows:20
13-10-103. Applicability. This article 10 applies to and governs21
the operation of municipal courts in the cities and towns of this state.22
Except for the provisions relating to the method of salary payment for23
municipal judges, the incarceration of children pursuant to sections24
19-2.5-305 and 19-2.5-1511, the appearance of the parent, guardian, or25
lawful custodian of any child under eighteen years of age who is charged26
with a municipal offense as required by section 13-10-111, the right to a27
103
-5- trial by jury for petty offenses pursuant to section 16-10-109, RELIEF1
FROM IMPROPERLY ENTERED GUILTY PLEAS PURSUANT TO SECTION2
18-1-410.6, rules of procedure promulgated by the supreme court, and3
appellate procedure, this article 10 may be superseded by charter or4
ordinance enacted by a home rule city.5
SECTION 3. Safety clause. The general assembly hereby finds,6
determines, and declares that this act is necessary for the immediate7
preservation of the public peace, health, or safety.8
103
-6-