Be very, very careful with the language of your plea agreement. After all, it’s a contract, and deserves the same careful consideration before entering into it.
You might live to regret it, even if it takes 20 years for it to catch up with you, as happened to the defendant in People v. Paredes, case no. D050150 (4th Dist. Feb. 26, 2008). Paredes, a legally resident alien, pleaded guilty to voluntary manslaughter in 1987 in part because the prosecutor agreed to a “JRAD” — a judicial recommendation against deportation — that, under 1987 federal law, precluded the government from removing him from the country on the basis of the conviction. He received probation conditioned on serving 365 days in jail.
Flash forward roughly 17 years, to when Paredes applies for citizenship and, in response to this act of patriotism, has removal proceedings initiated against him by the Department of Homeland Security. The removal proceedings are instigated because federal law had since changed to make his conviction a basis for removal notwithstanding the JRAD. Perhaps the worst part: had he been sentenced to just one day less in jail, the conviction would not have subjected him to removal.
After running through a mill of immigration proceedings, Paredes sought relief in superior court. He sought to vacate his conviction, withdraw his guilty plea and enter a plea of not guilty or, alternatively to “enforce” the plea agreement, which he contended contained a “no deportation” promise.
The superior court granted relief by vacating the 20-year-old judgment and entering a new judgment nunc pro tunc that included a sentence of only 364 days in order to avoid a “miscarriage of justice” in light of the facts that Paredes relied on protection from deportation, neither party contemplated the change in federal law and, had they done so, would have agreed to a 364-day jail term as a condition of probation, and its finding that the plea agreement included a “promise of no deportation, embodied in the JRAD.”
The court of appeal reverses, finding no breach of the plea agreement and relying on precedent that so long as the defendant is adequately advised (as Paredes was) that his conviction may have immigration consequences, including deportation, later changes in immigration law do not warrant modification of the judgment.
I’m only disappointed in the result because it kept the court from reaching some interesting issues regarding judgment and jurisdiction. Specifically, whether judgment could be entered nunc pro tunc under the circumstances and whether the court acted in excess of its jurisdiction by modifying the terms of probation after probation was complete.
