Kazadi v. People

• Citation: 291 P.3d 16
• Decision Date: 20 December 2012
• Docket Number: No. 11SC264.,11SC264.
• Parties: Yanick KAZADI, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

291 P.3d 16

Yanick KAZADI, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 11SC264.

Supreme Court of Colorado,

En Banc.

Dec. 20, 2012.

The Noble Law Firm, LLC, Antony M. Noble, Lakewood, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Joseph Law Firm, P.C., Aaron C. Hall, Aurora, Colorado, Stern & Curray, LLC, Emily Assunta White, Denver, Colorado, Attorneys for Amicus Curiae American Immigration Lawyers Association of Colorado.

The Meyer Law Office, P.C., Hans Meyer, Denver, Colorado, The University of Colorado Law School, Violeta R. Chapin, Boulder, Colorado, Attorneys for Amicus Curiae Colorado Criminal Defense Bar.

Justice HOBBS delivered the Opinion of the Court.

¶ 1 We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Kazadi, 284 P.3d 70 (Colo.App.2011).¹ In this case we must determine whether a defendant who has pleaded guilty in return for a deferred judgment and sentence may seek postconviction review of his felony plea under Crim. P. 35(c). We agree with the Court of Appeals that he may not. Nevertheless, he can seek to withdraw the guilty plea pursuant to Crim. P. 32(d).

¶ 2 We hold that the deferred judgment statute, section 18–1.3–102, C.R.S. (2012), read in conjunction with Crim. P. 35(c), precludes Kazadi from challenging his felony plea under Crim. P. 35(c) while his deferred judgment and sentence are still in effect. However, he may move to withdraw his guilty plea under Crim. P. 32(d). This rule allows a defendant to move for withdrawal of a guilty plea before sentence is imposed or imposition of sentence is suspended. As grounds for such a motion, a defendant may raise ineffective assistance of counsel.

I.

¶ 3 The prosecution charged Yanick Kazadi, a legal permanent resident born in the Congo who entered the United States in 2003 at age thirteen, of possession with intent to distribute marijuana, a class four felony, in violation of former section 18–18–406(8)(b), C.R.S. (2008) (repealed 2010), and possession of not more than one ounce of marijuana, a class two petty offense under section 18–18–406(1), C.R.S. (2012). The police arrested Kazadi in November 2008 while he was riding as a passenger in a speeding car. After stopping the car, the police officer identified the vehicle's license plates as stolen, and pulled all four passengers out of the car. When a bullet fell out of the driver's lap when exiting the car, officers handcuffed all passengers and conducted a routine search, finding three guns, two bullet magazines, numerous baggies of marijuana, two baggies of ecstasy pills, and over $400 in cash.

¶ 4 Kazadi pleaded guilty to possession with intent to distribute marijuana, a class four felony, and possession of a schedule V controlled substance (codeine), a class one misdemeanor. In a written plea agreement, Kazadi and the prosecution stipulated to a deferred judgment and sentence for the felony count and a probationary sentence for the misdemeanor. The Stipulation For Deferred Judgment And Sentence the parties entered into recites, in part:

The District Attorney further agrees that if the Defendant satisfactorily complies with the conditions upon which the entry of judgment of conviction is deferred and the imposition of sentence is deferred

and satisfactory compliance by the Defendant with the terms of probation is shown, then upon the expiration of TWO YEARS from the entry of the Defendant's guilty plea, the District Attorney will consent to the entry by the Court of an order allowing the Defendant to withdraw his previously entered plea of guilty; and, if the Court so allows the withdrawal of the guilty plea, the District Attorney will thereupon move for dismissal with prejudice of the charge to which entry of judgment of conviction was deferred in the case in which this stipulation is filed.

(Emphasis added).

¶ 5 The district court conducted a providency hearing and accepted Kazadi's guilty pleas, ordering a two-year deferred judgment and sentence for the felony count and two years of probation for the misdemeanor.

¶ 6 Kazadi signed a Crim. P. 11 guilty plea advisement that included a clause about possible immigration removal consequences:

If I am not a citizen of the United States, this guilty plea may cause removal (formerly “deportation”), exclusion for admission to the United States or denial of naturalization. I further have been advised that for certain felonies, federal statutes could require removal and permanent exclusion. I have conferred with counsel regarding this and understand that I have a right to confer with immigration counsel. I understand that this court has no authority regarding immigration issues. No promises or representations have been made to me by this Court regarding immigration consequences other than the plain statements made in the paragraph.

¶ 7 In February 2009, Immigrations and Customs Enforcement placed a detainer on Kazadi following a later arrest by the Aurora Police Department.² Immigration and Enforcement Agency officials took Kazadi into custody on April 1, 2009, for removal purposes.³

¶ 8 Kazadi subsequently filed a Crim. P. 35(c) motion in the district court challenging his guilty pleas based on constitutionally ineffective assistance of counsel. Kazadi argued that counsel did not inform him of the possible removal consequences of his plea, and, but for the ineffective assistance, he would not have pleaded guilty. The district court denied Kazadi's Crim. P. 35(c) motion without a hearing. It ruled that, by signing the Crim. P. 11 advisement, Kazadi was aware of the possible immigration penalties when he entered his plea and was not prejudiced by counsel's lack of advisement.

¶ 9 On appeal, with regard to Kazadi's felony conviction, the court of appeals determined that a deferred judgment is not a “judgment of conviction” reviewable under Crim. P. 35(c).⁴ We agree and affirm the judgment of the court of appeals. Both parties argued to us in their briefs and oral arguments that Kazadi should be able to pursue a Crim. P. 32(d) motion to withdraw his felony guilty plea if we determine that relief under Crim. P. 35(c) is inapplicable. We conclude that Kazadi may move to withdraw his guilty under Crim. P. 32(d).

II.

¶ 10 We hold that the deferred judgment statute, section 18–1.3–102, read in conjunction with Crim. P. 35(c), precludes Kazadi from challenging his felony plea under Crim. P. 35(c) while his deferred judgment and sentence are still in effect. However, he may move to withdraw his guilty plea under Crim. P. 32(d). This rule allows a defendant to move for withdrawal of a guilty plea before sentence is imposed or imposition of sentence is suspended. As grounds for such a motion, a defendant may raise ineffective assistance of counsel.

A.Standard of Review

¶ 11 Interpretation of a statute is a question of law, which we review de novo. Robles v. People, 811 P.2d 804, 806 (Colo.1991). Our fundamental responsibility in construing a statute is to ascertain and give effect to the purpose and intent of the General Assembly in enacting it. Alvarado v. People, 132 P.3d 1205, 1207 (Colo.2006). In construing a statute, we strive to give effect to the intent of the legislature and adopt the statutory construction that best carries out the provisions and purposes of the act. Thomas v. F.D.I.C., 255 P.3d 1073, 1077 (Colo.2011); Spahmer v. Gullette, 113 P.3d 158, 162 (Colo.2005). We first look to the language of the statute to determine the legislature's intent. Thomas, 255 P.3d at 1077. As with any potential conflict between legislative provisions, we endeavor to give effect to the language and intent of both if possible. State Dep't of Labor & Emp't v. Esser, 30 P.3d 189, 194 (Colo.2001). Under the Colorado Constitution, we have authority to promulgate and interpret the Colorado Rules of Criminal Procedure. Colo. Const. art. VI, § 21. To ascertain the appropriate construction of a rule of criminal procedure, we employ the same interpretive rules applicable to statutory construction. People v. Angel, 2012 CO 34, ¶ 17, 277 P.3d 231;Peterson v. People, 113 P.3d 706, 708 (Colo.2005).

B.Applicable Law

1. Deferred Judgment Statute, Section 18–1.3–102

¶ 12 Colorado's deferred judgment statute, section 18–1.3–102, provides a unique alternative to the typical criminal case. It authorizes a trial court to defer judgment and sentencing when accepting a guilty plea and continue the case for a period up to four years from the date of the plea. § 18–1.3–102(1)(a); People v. Widhalm, 642 P.2d 498, 500 (Colo.1982). The statute provides, in part, as follows:

In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty ....

....

Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. Such stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon such guilty plea. ...

§§ 18–1.3–102(1)(a), (2) (emphasis added). As a condition of continuing the case, the trial court is empowered to implement probation-like supervision conditions that the defendant must adhere to. § 18–1.3–102(2); see People v. Manzanares, 85 P.3d 604, 607 (Colo.App.2003) (finding that “[a] deferred judgment is akin to a sentence of probation”). If the defendant completes the term of the deferred sentence without violating a condition, his guilty plea is withdrawn and his case must be...