SENATE BILL 22-103
BY SENATOR(S) Gonzales, Buckner, Coleman, Coram, Donovan, Fields,
Gardner, Hansen, Hisey, Holbert, Kolker, Lee, Moreno, Pettersen, Priola,
Rankin, Rodriguez, Simpson, Story, Fenberg;
also REPRESENTATIVE(S) Tipper, Bacon, Benavidez, Exum,
Gonzales-Gutierrez, Herod, Hooton, Jodeh, Kennedy, Lindsay, McCluskie,
Michaelson Jenet, Ricks, Snyder, Weissman, Woodrow
.
C
ONCERNING A REMEDY FOR IMPROPERLY ENTERED GUILTY PLEAS .
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, add 18-1-410.6 as
follows:
18-1-410.6. Relief from improperly entered guilty pleas for
certain misdemeanor and municipal offenses - legislative declaration.
(1) T
HE GENERAL ASSEMBLY FINDS THAT :
(a) S
INCE THE COLORADO SUPREME COURT DECISION IN PEOPLE V.
P
OZO, 746 P.2d 523 (COLO. 1987), NONCITIZEN DEFENDANTS IN COLORADO
HAVE A CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
THAT REQUIRES DEFENSE COUNSEL WHO KNOWS THE CLIENT IS A NONCITIZEN
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act. TO INFORM ITSELF OF RELEVANT IMMIGRATION LAW . THE UNITED STATES
SUPREME COURT IN
PADILLA V. KENTUCKY, 559 U.S. 356 (2010) FURTHER
HELD THAT DEFENSE COUNSEL MUST INFORM A CLIENT OF THE IMMIGRATION
CONSEQUENCES OF A PLEA
.
(b) M
ANY NONCITIZEN DEFENDANTS RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL REGARDING IMMIGRATION CONSEQUENCES OF A
GUILTY PLEA
.
(c) M
ANY PRO SE NONCITIZEN DEFENDANTS RECEIVED INADEQUATE
ADVISEMENTS THAT DID NOT EXPLAIN THAT THE RIGHT TO COUNSEL
INCLUDES THE RIGHT TO BE ADVISED OF IMMIGRATION CONSEQUENCES OF A
GUILTY PLEA
. CONSEQUENTLY, MANY PRO SE NONCITIZEN DEFENDANTS DID
NOT KNOWINGLY
, INTELLIGENTLY, AND VOLUNTARILY WAIVE THEIR RIGHT
TO COUNSEL WHEN ENTERING A GUILTY PLEA
.
(d) M
ANY NONCITIZEN DEFENDANTS HAVE BEEN UNFAIRLY DEPRIVED
OF THE OPPORTUNITY TO CHALLENGE AN UNCONSTITUTIONAL GUILTY PLEA
DUE TO A TIME LIMITATION CONTAINED IN SECTION
16-5-402, A MUNICIPAL
ORDINANCE
, OR A MUNICIPAL COURT RULE OF PROCEDURE , DESPITE VALID
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL OR AN INVALID WAIVER OF
THE RIGHT TO COUNSEL
.
(e) P
ROTECTING THE CONSTITUTIONAL RIGHTS OF ALL COLORADANS
AND ENSURING THAT ALL DEFENDANTS ARE TREATED CONSISTENTLY IN
THEIR OPPORTUNITY TO AFFIRM THEIR CONSTITUTIONAL RIGHTS IS A MA TTER
OF STATEWIDE CONCERN
.
(2) T
HEREFORE, THE GENERAL ASSEMBLY DECLARES THAT
NONCITIZEN DEFENDANTS MUST HAVE THE OPPORTUNITY TO MEANINGFULLY
CHALLENGE AN UNCONSTITUTIONALLY ENTERED GUILTY PLEA FOR CERTAIN
CLASS
1 MISDEMEANORS, CLASS 2 MISDEMEANORS, AND MUNICIPAL
OFFENSES
.
(3) (a) N
OTWITHSTANDING A LIMITATION CONTAINED IN SECTION
16-5-402, A MUNICIPAL ORDINANCE , OR A MUNICIPAL COURT RULE OF
PROCEDURE
, AT ANY TIME FOLLOWING THE ENTRY OF A GUILTY PLEA , A
CRIMINAL DEFENDANT MAY CHALLENGE THE GUILTY PLEA ON THE GROUNDS
SET FORTH IN SUBSECTION
(4) OF THIS SECTION TO A:
PAGE 2-SENATE BILL 22-103 (I) CLASS 1 OR CLASS 2 MISDEMEANOR THAT IS NOT DEFINED IN
SECTION
24-4.1-302 (1) OR TITLE 42, AND COMMITTED BEFORE MARCH 1,
2022;
OR
(II) MUNICIPAL OFFENSE THAT IS NOT SUBSTANTIALLY SIMILAR TO
AN OFFENSE DEFINED IN SECTION
24-4.1-302 (1) OR TITLE 42, AND
COMMITTED BEFORE
MARCH 1, 2022.
(b) T
HE COURT IN WHICH THE GUILTY PLEA WAS ORIGINALLY
ENTERED HAS JURISDICTION AND AUTHORITY TO DECIDE THE MOTION
.
(4) A
DEFENDANT MOVING TO VACATE A GUILTY PLEA TO A CLASS 1
OR CLASS 2 MISDEMEANOR, OR A MUNICIPAL OFFENSE, MUST, IN GOOD FAITH,
ALLEGE THE FOLLOWING:
(a) A
S A RESULT OF THE GUILTY PLEA , THE DEFENDANT HAS
SUFFERED
, IS CURRENTLY SUFFERING , OR WILL SUFFER AN ADVERSE
IMMIGRATION CONSEQUENCE
; AND
(b) THE GUILTY PLEA WAS OBTAINED IN VIOLATION OF THE
CONSTITUTION OR LAWS OF THE
UNITED STATES OR OF THIS STATE ON ONE
OR MORE OF THE FOLLOWING GROUNDS
:
(I) T
HE DEFENDANT WAS NOT ADE QUATELY ADVISED OF THE
ADVERSE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA BY DEFENSE
COUNSEL
;
(II) T
HE DEFENDANT DID NOT KNOWINGLY , INTELLIGENTLY, AND
VOLUNTARILY WAIVE THE RIGHT TO COUNSEL BECAUSE THE DEFE NDANT WAS
NOT ADVISED THAT THE RIGHT TO COUNSEL INCLUDES THE RIGHT TO BE
ADVISED REGARDING THE IMMIGRATION CONSEQUENCES OF A GUILTY PLEA
;
OR
(III) THE GUILTY PLEA WAS CONSTITUTIONALLY INFIRM FOR ANY
OTHER REASON SET FORTH IN SECTION
18-1-410 (1)(a) TO (1)(d).
(5) (a) U
PON RECEIPT OF THE DEFENDANT 'S MOTION, THE
PROSECUTION SHALL RESPOND WITHIN SIXTY
-THREE DAYS OR REQUEST
ADDITIONAL TIME FOR GOOD CAUSE SHOWN
. IF A RESPONSE IS NOT FILED,
THE DEFENDANT'S MOTION IS DEEMED UNOPPOSED , AND THE COURT SHALL
PAGE 3-SENATE BILL 22-103 GRANT THE DEFENDANT 'S MOTION. IF THE PROSECUTION OPPOSES THE
DEFENDANT
'S MOTION, IT SHALL ALLEGE, IN GOOD FAITH, THE FACTS UPON
WHICH IT BASES ITS OPPOSITION
. IF THE RESPONSE RAISES AN ISSUE OF
MATERIAL FACT
, THE COURT SHALL SET THE MATTER FOR AN EVIDENTIARY
HEARING WITHIN TWENTY
-ONE DAYS.
(b) U
NLESS THE PROSECUTION PROVES BY A PREPONDERANCE OF THE
EVIDENCE THAT THE DEFENDANT WILL NOT SUFFER AN ADVERSE
IMMIGRATION CONSEQUENCE OR THAT THE GUILTY PLEA WAS
CONSTITUTIONALLY ENTERED
, THE COURT SHALL GRANT THE DEFENDANT 'S
MOTION
.
(c) F
OR CLAIMS RAISED PURSUANT TO SUBSECTION (4)(b)(II) OF THIS
SECTION
, THE PROSECUTION SHALL NOT RELY SOLELY ON WRITTEN
DOCUMENTS
, SUCH AS A DEFERRED JUDGMENT AGREEMENT , PLEA
PAPERWORK
, OR TRANSCRIPT OF A COURT COLLOQUY, TO RAISE AN ISSUE OF
MATERIAL FACT TO OBTAIN AN EVIDENTIARY HEARING OR DEFEAT A CLAIM
AT THE HEARING UNLESS THE DOCUMENTS CLEARLY SHOW THAT THE
DEFENDANT WAS INFORMED BY THE COURT THAT THE RIGHT TO C OUNSEL
INCLUDED THE RIGHT TO BE ADVISED REGARDING THE IMMIGRATION
CONSEQUENCES RESULTING FROM A GUILTY PLEA AND THAT THE DEFENDANT
THEN KNOWINGLY
, INTELLIGENTLY, AND VOLUNTARILY WAIVED THAT RIGHT.
(6) I
F THE DEFENDANT SUCCEEDS IN CHALLENGING A GUILTY PLEA
PURSUANT TO THIS SECTION
, THE COURT SHALL VACATE THE GUILTY PLEA AS
CONSTITUTIONALLY INFIRM AND SET THE CASE FOR AN ARRAIGNMENT
.
SECTION 2. In Colorado Revised Statutes, amend 13-10-103 as
follows:
13-10-103. Applicability. This article 10 applies to and governs the
operation of municipal courts in the cities and towns of this state. Except for
the provisions relating to the method of salary payment for municipal
judges, the incarceration of children pursuant to sections 19-2.5-305 and
19-2.5-1511, the appearance of the parent, guardian, or lawful custodian of
any child under eighteen years of age who is charged with a municipal
offense as required by section 13-10-111, the right to a trial by jury for petty
offenses pursuant to section 16-10-109,
RELIEF FROM IMPROPERLY ENTERED
GUILTY PLEAS PURSUANT TO SECTION
18-1-410.6, rules of procedure
promulgated by the supreme court, and appellate procedure, this article 10
PAGE 4-SENATE BILL 22-103 may be superseded by charter or ordinance enacted by a home rule city.
SECTION 3. Safety clause. The general assembly hereby finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety.
____________________________ ____________________________
Steve Fenberg Alec Garnett
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Cindi L. Markwell Robin Jones
SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 5-SENATE BILL 22-103