Guilty plea may be withdrawn following deferred sentence agreement

On Dec. 20, 2012, the Supreme Court of Colorado ruled in Kazadi v. People that a defendant may attempt to withdraw a guilty plea entered under an agreement for deferred judgment and sentence while the deferred judgment and sentence are still in effect.

Under Colorado's deferred judgment statute, trial courts, in accepting a plea of guilty, may defer judgment and sentencing with the written consent of the defendant, defense counsel, and the district attorney. The case is then continued for a specified period, during which the court may place the defendant under probation. As a condition of continuing the case, the trial court may impose supervision conditions upon the defendant similar to conditions permitted as part of probation. If the defendant violates a condition of the deferred sentence agreement, the court may revoke the deferral and enter judgment and sentence upon the guilty plea. If the defendant fully complies, the guilty plea is withdrawn and the case is dismissed with prejudice.

The defendant entered a guilty plea to possession with intent to distribute marijuana under a stipulation for a deferred judgment and sentence. When the defendant, who was a legal permanent resident born in the Congo, was subsequently taken into custody by Immigration and Customs Enforcement for removal purposes, he filed a post-conviction motion under Colorado Rule of Criminal Procedure 35(c), permitting challenges to a "judgment of conviction," alleging that his guilty plea was invalid due to ineffective assistance of counsel. The defendant asserted that his counsel had failed to inform him of the possible removal consequences of his plea, and, but for his counsel's ineffectiveness, he would not have pleaded guilty. The trial court denied the motion without a hearing, holding that the defendant was aware of the possible immigration penalties when he entered the plea, and that he was not prejudiced by his counsel's lack of advisement. On appeal, the court of appeals determined that a deferred judgment is not a "judgment of conviction" reviewable under Rule 35(c).

The Colorado Supreme Court ruled that the defendant could not seek post-conviction review of the plea under Rule 35(c), since the deferred judgment is a continuation of defendant's prosecution, not a judgment of conviction within the meaning of the rule.

However, the court ruled that the defendant could move to withdraw his guilty plea under Colorado Rule of Criminal Procedure 32(d), which permits a defendant to move for a withdrawal of a guilty plea before the imposition of sentence or the suspension of that sentence. The court stated that a deferred judgment is not the equivalent of a suspension of sentence, which would render the motion to withdraw the guilty plea untimely. No sentence has been imposed or suspended, since the sentence is only imposed if the defendant violates the conditions of the deferred sentence agreement. The court overruled People v. Anderson, a 1985 Colorado court of appeals decision, which held that a deferred judgment is the equivalent of suspension of sentence, making a Rule 32(d) motion untimely. Both parties and the court agreed that Anderson was "wrongly decided." The court further held that the defendant could raise ineffective assistance of counsel as a fair and just reason for the motion.

Individuals who are faced with criminal charges should seek the advice and assistance of a competent attorney experienced in defending these matters to ensure that their rights are protected.