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Aldus v. State attorenys and footnotes.

Attorney for petitioner:

Philip C. Worden, Esq., (orally)
P O Box 1009
Northeast, ME 04662

Attorneys for State:

David W. Crook, District Attorney
Alan Kelley, Deputy Dist. Atty., (orally)
Paul Rucha, Asst. Dist. Atty.
95 State Street
Augusta, ME 04330
FOOTNOTES******************************** {1} . As of August 19, Aldus had not been indicted on any of the charges from July 3 or August 11. {2} . The transcript reveals that after Geller spoke with Aldus, he spoke to the clerk who then notified the judge that there was an agreement that all pending matters against Aldus be continued to September 22. The judge said those matters would be set for September 22 at 1:00. The judge went on to other business and was later informed that there was a plea agreement in Aldus's cases. {3} . A defendant is entitled to a deduction from a sentence for the time spent in pre-trial detention on the charges on which the defendant is convicted. See 17-A M.R.S.A. § 1253(2) (Supp. 1999). "Dead time" refers to time in jail that is not attributable to a charge on which the defendant is convicted. Geller and Aldus were apparently concerned that because Aldus had posted bail on the July 3 charges, she would not be given credit, in any sentence for the July 3 matters, for the time she was jailed on the August 11 charges, and if the July 3 cases were continued to another date, she would be "doing dead time" on the July 3 matters. As Aldus's post-conviction attorney pointed out to the court, however, the common method of resolving this problem is by "surrendering" the defendant on those charges for which she has posted bail so that the pre-trial detention covers all charges. {4} . In the post-conviction petition and hearing, Aldus raised the issue of the voluntariness of her plea because of the inadequacy of the Rule 11 proceeding. The Superior Court found that the failure of the District Court to address Aldus personally rendered the Rule 11 inquiry defective. This shifted the burden to the State to demonstrate that, in spite of the Rule 11 proceeding's defects, the plea was knowing and voluntary. See Morgan v. State, 287 A.2d 592, 598 (Me. 1972). The court found that the State met that burden and that Aldus's plea was voluntary. The State presented affidavits of witnesses to the events of July 3 which led to the aggravated assault charge. The Superior Court found: "Considering the entire record, there can be dispute as to what happened on July 3, 1998, but there is sufficient evidence for a fact finder to find that, superficial as they may have been, the petitioner did cause cuts on Mr. Aldus's body with a knife." Aldus has not cross-appealed from the Superior Court's finding that her plea was voluntary. {5} . In addition to aggravated assault, Aldus pled guilty to (1) two counts of violation of a protection from abuse order (17-A M.R.S.A. § 506-B (Supp. 1999)); (2) two counts of terrorizing (17-A M.R.S.A. § 210 (1983 & Supp. 1999)); (3) two counts of violation of bail conditions (15 M.R.S.A. § 1092 (Supp. 1999)); and (4) refusing to submit to arrest (17-A M.R.S.A. § 751-A (Supp. 1999)). {6} . We addressed the collateral consequences doctrine in at least two cases. In Wellman v. State, 588 A.2d 1178 (Me. 1991), we held that a court was not required to inform a defendant of the collateral consequences of his plea and that a defendant's subjective misunderstanding of his entitlement to credit for time served in jail awaiting trial did not make his guilty plea involuntary. Id. at 1181. We pointed out, however, that the court fully complied with the requirements of M.R. Crim. P. 11 and informed Wellman of the direct consequences of his plea. Id. at 1180-81. In Laferriere, 697 A.2d at 1308, we held that Laferriere's expectation as to where he would serve his sentence was a collateral consequence of his conviction which did not render his plea involuntary. Several times in that opinion we noted that the Rule 11 judge was meticulous in questioning Laferriere to make certain that he understood the consequences of his plea. Id. at 1305, 1307-08. There is a sound basis for the collateral consequences doctrine. Neither courts nor defense counsel can be expected to be aware of the multitude of potential consequences that may flow from a conviction. Courts do not always agree upon whether a particular consequence is collateral or direct, but generally speaking, those consequences that do not flow directly from the sentence are considered collateral. Several opinions and commentators have catalogued examples of collateral and direct consequences. See, e.g., Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir. 1976); Priscilla Budeiri, Collateral Consequences of Guilty Pleas in the Federal Criminal Justice System, 16 Harv. C.R.-C.L. L. Rev. 157, 170-87 (1981). The term "collateral consequences" involves both consequences that can be foreseen because of the automatic operation of statutes, such as the loss of a license, or that are possibilities that depend upon the defendant's own future conduct, such as the enhancement of a sentence in the future if the defendant is again convicted of a crime. {7} . The majority of courts that have decided the issue in the post-conviction context have concluded that counsel is not ineffective for having failed to advise the defendant about deportation. Most courts do so on the basis that deportation is a collateral consequence. See United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764, 768-69 (11th Cir. 1985); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); People v. Huante, 571 N.E.2d 736, 741 (Ill. 1991); Mott v. State, 407 N.W.2d 581, 582 (Iowa 1987); Alanis v. State, 583 N.W.2d 573, 579 (Minn. 1998); State v. Dalman, 520 N.W.2d 860, 863 (N.D. 1994); Commonwealth v. Frometa, 555 A.2d 92, 93-94 (Pa. 1989). Some courts, while holding that an attorney's failure to advise a defendant about potential deportation is not ineffective assistance of counsel, pronounce that it is preferable that defense counsel give advice about potential deportation. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Durant v. Coughlin, 1999 WL 528832, *3 (Conn. Super. Ct. 1999). Although the majority of courts do not find ineffective assistance of counsel for failure to advise a defendant about deportation, there are a number of courts that do. Some take the position that an affirmative misrepresentation by counsel on the deportation consequences of a conviction is ineffective assistance of counsel. See Williams v. State, 641 N.E.2d 44, 49 (Ind. Ct. App. 1994). Cf. United States v. Russell, 686 F.2d 35, 41-42 (D.C. Cir. 1982) (allowing defendant to withdraw guilty plea pursuant to former F.R. Crim. P. 32(d) because government incorrectly informed defendant that conviction would not subject him to deportation). Other courts conclude that failure to advise an alien defendant on possible deportation consequences can be ineffective assistance of counsel. In People v. Pozo, 746 P.2d 523, 529 (Colo. 1987), the Colorado Supreme Court concluded that the failure of an attorney to learn the basics of immigration law when the defendant is an alien, is similar to the failure of an attorney to research the law of the crime with which the defendant is charged. The court held that potential deportation consequences are material and the failure to investigate those consequences, when the attorney knows that the defendant is an alien, constitutes ineffective assistance of counsel. In People v. Soriano, 240 Cal. Rptr. 328 (Cal. Ct. App. 1987) there was conflicting evidence at the post-conviction hearing regarding the advice given by the attorney to the defendant. "What is uncontested is that counsel, knowing defendant was an alien, . . . did not make it her business to discover what impact his negotiated sentence would have on his deportability." Id. at 335. The court concluded that the defendant was deprived of adequate assistance of counsel because he was not adequately advised of the immigration consequences. Id. at 336. {8} . The fact that deportation is an extremely serious matter cannot be questioned, and there can be little doubt that practicing attorneys should understand the importance and severity of deportation. In his treatise-like opinion in Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997), Judge Weinstein wrote: The importance of immigration consequences of pleas in criminal cases cannot be underestimated. Deportation to a country where a legal permanent resident of the United States has not lived since childhood; or where the immigrant has no family or means of support; or where he or she would be permanently separated from a spouse, children and other loved ones, is surely a consequence of serious proportions that any immigrant would want to consider in entering a plea. As Justice Black wrote: "To banish [an immigrant] from home, family and adopted country is punishment of the most drastic kind." Lehmann v. United States, 353 U.S. 685, 691, 77 S. Ct. 1022, 1025, 1 L. Ed. 2d 1122 (1957) (Black, J., concurring); see also Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977) ("[d]eportation is a sanction which in severity surpasses all but the most Draconian criminal penalties"). An immigrant can be expected to weigh the likelihood of this drastic punishment just as he or she would weigh other matters in a plea-such as the likely sentence, the availability of parole, and the overall disruption the plea will cause to his life. Mojica, 970 F. Supp. at 176-77. The significance of deportation is likely the reason that a number of states, legislatively or by rule, have mandated that courts, before accepting guilty pleas, notify defendants that if they are not United States citizens deportation is a possible consequence of a conviction. See, e.g., Conn. Gen. Stat. § 54-1j (1994); Mass. Gen. Laws ch. 278, § 29D (1998). See also, Susan Pilcher, Justice without a Blindfold: Criminal Proceedings and the Alien, 50 Ark. L. Rev. 269, 319 n.217 (1997) (listing fourteen state statutes or rules requiring courts to advise aliens on deportation consequences). {9} . If there was a possibility that the State would withdraw its plea offer if pleas were not entered that day, Aldus should have been advised about that possibility.

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