Sec. 54-1j. Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea.

(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.

(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.

(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.

(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)

History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court “advises” the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add “removal” from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails “to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section” rather than if court fails “to advise a defendant, as required in subsection (a) of this section” and make a technical change for purposes of gender neutrality.

Notation

Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.

Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499. Court's inquiry of defense counsel as to whether there were any immigration issues and whether counsel talked to defendant about possible consequences of pleas cannot be construed as substantial compliance with requirements of Subsec. (a). 120 CA 489; judgment reversed, see 303 C. 527.

Subsec. (a):

Court properly relied upon representations by defense counsel that defendant understood immigration consequences of guilty plea and court was not required to address defendant personally; substantial compliance with section is sufficient. 303 C. 527. Trial court is not required to inquire directly of a defendant as to whether he or she spoke with his or her counsel about the possible immigration consequences of pleading guilty before the court accepts the defendant's guilty plea. 325 C. 623.

Subsec. is plain and unambiguous, and requires that court address defendant personally and determine that defendant fully understands that immigration consequences may flow from entering a plea if a noncitizen, and court is only required to provide defendant an opportunity to discuss with defense counsel the possible immigration consequences of entering a plea if the court is made aware that defendant has not discussed those immigration consequences with defense counsel. 139 CA 308. Trial court erred in finding that canvas of defendant substantially complied with Subsec. because trial court simply advised defendant that his conviction could result in his removal or deportation from United States, it did not ask defendant nor did it make a determination that defendant understood potential immigration consequences of his guilty plea before he entered it. 180 CA 48.

Subsec. (c):

Under 1999 revision, court does not have jurisdiction to hear motion filed outside of 3-year period. 306 C. 125.