In re Jones

Decision Date31 January 2020
Docket NumberNo. 2019-129,2019-129
Citation2020 VT 9
PartiesIn re Reco Jones
CourtVermont Supreme Court

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Washington Unit, Civil Division

Mary Miles Teachout, J.

Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Petitioner-Appellant.

Rory T. Thibault, Washington County State's Attorney, Barre, for Respondent-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned

¶ 1. ROBINSON, J. Petitioner appeals the civil division's denial of his post-conviction relief (PCR) petition alleging that he received ineffective assistance of counsel and that his guilty plea was involuntary. Due to his immigration status, federal deportation policies, and Department of Corrections (DOC) policies, the sentence petitioner agreed to—nominally twelve years to life—likely amounted to a life sentence without the possibility of parole with only a minimal chance of deportation. We conclude that the voluntariness of his plea was compromised by misinformation given to him. We reverse, vacate petitioner's conviction, and remand to the civil division with instructions to refer the case to the criminal division for further proceedings.

¶ 2. In his PCR petition, petitioner alleged that he entered his guilty plea involuntarily, "in reliance upon materially inaccurate advice of counsel." After an evidentiary hearing, the PCR court made the following findings. Petitioner is a citizen of Barbados who came to the United States in 1976 when he was sixteen years old. In June 2012, he was arrested based on allegations that he had sexually assaulted his underage stepdaughter. He confessed on tape and in writing to the allegations. The State charged him with repeated aggravated sexual assault of a child, which carried a sentence of twenty-five years to mandatory life.

¶ 3. Initially, the State represented to defense counsel and the court that if petitioner pled guilty, federal Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), would take petitioner into custody immediately upon his entering a guilty plea, without waiting for sentencing. Faced with this charge, petitioner's initial goal was to be deported to Barbados. Accordingly, he indicated that he would plead guilty, though he later changed his mind because he wanted to stay in Vermont and go to trial. Counsel urged him to accept a plea deal. She reasoned that if they arrived at the plea change and ICE was not present to pick up petitioner, he would not have to plead that day and could keep his options open.

¶ 4. In the meantime, defense counsel made further inquiries to try to ensure that ICE would, in fact, remove petitioner. She first obtained from the State a declaration from a U.S. Citizenship and Immigration Services attorney that suggested that petitioner would be deportable but did not discuss the timing of deportation. Later that year, while in the state's attorney's office, she spoke to two DHS attorneys on the phone; the state's attorney made the call. It is not clear who the DHS attorneys were or whether they had any authority to negotiate any terms specific to petitioner's case. They stated that ICE would not take petitioner into custody immediately after a change-of-plea hearing but would wait until after sentencing and after petitioner's thirty-day window for appeal had expired. Defense counsel also consulted a reference manual that had been created by an attorney in the Defender General's Office; it indicated that, given the charge, petitioner would have no defense to removal if he pled guilty, but did not clarify the timeline for removal. She never consulted with an immigration defense attorney or any other expert in the field.

¶ 5. Notwithstanding this uncertainty, petitioner eventually decided to pursue a plea agreement. After some negotiations, the parties agreed that petitioner would plead guilty to sexual assault, parental role. This offense carried a penalty range of three years to discretionary life, but the State insisted on a minimum sentence of twelve years. In response to defense counsel's attempts to negotiate a lower minimum sentence, the state's attorney said, "It doesn't matter what the sentence is since ICE is going to pick him up and deport him right away anyway." Counsel discussed the bargain with petitioner, informing him that if he pled guilty, he would spend at least some time as a Vermont inmate and that it was not certain when he would be taken into ICE custody, if at all.1 Petitioner accepted the plea agreement and pled guilty to sexual assault, parental role. At the PCR hearing, petitioner testified that when he entered the guilty plea, while it was not a certainty what ICE would do, he understood that it was 99.9% likely that he would be taken into federal custody for deportation some time after the appeal period expired. The court deferred sentencing and ordered a presentence investigation (PSI).

¶ 6. At sentencing, all parties understood that there was no certainty about what immigration authorities would do. The state's attorney noted that if petitioner was deported without treatment he would be at "high risk to reoffend," but said, "the immigration piece is out of our hands." Defense counsel stated, "He does understand that what happens from here on out might be the sentence that was agreed to, but most likely is in fact that at some point—at some point in the future—he doesn't know when—he will be in fact deported. We don't know what will happen. He does know that, and is just waiting to see."

¶ 7. The sentencing court accepted the parties' agreement and sentenced petitioner to twelve years to life. The court noted that immigration consequences were beyond the court's control, but expressed an intention that petitioner serve the full sentence imposed and complete sex-offender treatment prior to his release. Once petitioner was sentenced, ICE did not take him into custody. The PCR court found that he had been incarcerated for approximately six and a half years at the time of his PCR hearing.

¶ 8. The PCR court found that, among other things, because she failed to seek advice from an immigration defense attorney or defense counsel experienced with immigration matters, petitioner's defense counsel "had a misunderstanding of the impact of a sentence for twelve years to life." Based on expert testimony in the PCR hearing, the PCR court found that the imposed sentence "effectively resulted in a life sentence with no chance of rehabilitation or release and a minimal chance of deportation." The court explained how DOC and federal immigration policies combined to create this result:

[T]he consequence of a 12-year to life sentence for the sexual assault charge made it virtually certain that [petitioner] would never be removed by Homeland Security and never be eligible for programming that would make release possible. This is because of the effect of the interrelationship between longstanding DOC policy and Homeland Security policy. DOC's longstanding policy was that it would not provide rehabilitation programming to a person subject to deportation because such a person would not be returning to the community in Vermont. The Parole Board would not release a non-programmed person on parole. Thus, because of the possibility of deportation, it was virtually certain that he would serve a life sentence without the possibility of rehabilitation, release, or parole. Then, because he was serving a life sentence, Homeland Security would have no reason to deport him.

¶ 9. With regard to petitioner's ineffective-assistance-of-counsel claim, the PCR court concluded that petitioner's defense counsel's work fell below the standard of competent practice insofar as she had failed to appreciate that DOC and Homeland Security policies together made it extremely likely that defendant would never be eligible for release and would never be removed by Homeland Security. But the PCR court concluded that this failure had not prejudiced petitioner. It found that counsel had advised petitioner, and petitioner understood, that it was "not a certainty that . . . he would be taken into custody by ICE or when." The court wrote that it "[could not] conclude that he was prejudiced, since the advice he received from [counsel] was accurate as to the risk that he might not be deported and would wind up serving a 12-year-to-life sentence." Additionally, it found that there could not have been any prejudice to petitioner since there was no evidence that, given better legal advice, he would have chosen to take his chances at trial, and because "[t]here was no evidence that the prosecutor could have been persuaded to agree to any more favorable plea agreement or that the court would have accepted it."

¶ 10. The PCR court did not directly address petitioner's voluntariness claim; however, its findings as to the prejudice prong of the ineffective-assistance claim imply a conclusion that petitioner's plea was not involuntary since he had been advised of the risk that he would serve his full sentence and was not prejudiced by any misinformation.

¶ 11. While the PCR court did not vacate petitioner's plea, it did remand the case for "a continuation of the sentencing hearing." It reasoned:

the judge acted on the assumption that after twelve years, treatment would be available to [petitioner]. . . . It is apparent that the judge was not aware that if petitioner was not deported and was still in DOC custody after twelve years, DOC would not make treatment programs

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