Appeal from the Superior Court of the District of Columbia (DVM948-04) (Hon. Jeanette Clark, Trial Judge)
Argued September 22, 2010
Before KRAMER and OBERLY, Associate Judges, and BELSON, Senior Judge.
Appellant Eduardo Bautista appeals the trial court's denial of his motion to vacate his conviction and withdraw his plea of guilty to the charge of criminal contempt.*fn1 An alien, Bautista contends that the trial court failed to comply with D.C. Code § 16-713 (2001), which requires the court, before accepting a plea of guilt, to "administer [an] advisement on the record to the defendant" that his conviction could affect his immigration status if he is not a United States citizen. D.C. Code § 16-713 (2001).*fn2
The circumstances of the plea proceedings were unusual. During the first part of the proceedings, Bautista was advised of the potential immigration consequences of entering a plea of guilty to simple assault,*fn3 and he pleaded guilty to that offense. The proceedings then changed focus when the judge was made aware, for the first time it appears, of the existence of an amended information that contained a count of criminal contempt. After some discussion, Bautista was arraigned on that count. In the ensuing colloquy, the judge did not advise Bautista of the potential immigration consequences of pleading guilty to that offense before he pleaded guilty to it. In moving over four years later to vacate judgment and withdraw his plea of guilty to contempt, Bautista made the requisite showing under D.C. Code § 16-713 (b) that his plea of guilty to the contempt charge had adversely affected his immigration status, and argued that pursuant to that statute his motion should be granted. We agree, reverse the trial court's denial of that motion, and remand for further proceedings.
We begin our discussion of the issues with a more detailed account of the plea proceedings. At the outset of the plea proceedings of November 4, 2004, the trial judge was aware that Bautista was charged with simple assault, but for reasons not clear from the record was not aware that what the Assistant United States Attorney referred to as "the full information" set forth a charge of criminal contempt as well as the charge of assault. Before being made aware of the contempt charge, the judge engaged in a colloquy with appellant concerning his constitutional right to go to trial and the panoply of related rights that he could exercise if he did so, including his right to require the government to prove his guilt of the crime of assault beyond a reasonable doubt, the opportunity to cross-examine the government's witnesses and to put on evidence in his own behalf, the right to take the stand himself, or not to do so without incurring any negative inferences, and the right to appeal if found guilty, with appointed counsel if he could not afford counsel. The court then addressed the maximum penalty for the count of simple assault. After informing appellant of the maximum penalty, the judge advised him as follows, quoting virtually verbatim the language of § 16-713:
Now the maximum penalty for assault, sir, is up to 180 days in jail, up to a $1,000 fine, or both. Now do you understand that if you are not a citizen of the United States, you are advised that the conviction of the offense for which you are charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States?*fn4
The judge then asked, "[d]o you understand that, sir?" Bautista replied, "I do." Bautista's counsel then started to tell the judge what the plea agreement was, whereupon the Assistant United States Attorney noted that the "full information" set forth charges of both assault and contempt. Bautista's counsel agreed. After a pause, the trial judge said, "I see only one, one information here for assault." The government then informed the court that Bautista and his counsel knew about the amended information "long ago" and that the parties were making no request for a continuance. Bautista's counsel acknowledged that she had been given a copy of the amended information a few weeks earlier.
Informed of the existence of the amended contempt charges, the trial judge attempted to resume the plea proceeding. She advised Bautista of the additional sentence that the court could impose, and asked him whether he wished to plead guilty. After Bautista's affirmative response, the court had the government state the evidence it expected to adduce on both charges. The government did so.
As the court was then completing its colloquy with Bautista about the plea, Bautista's counsel stated that while she had received the amended information some weeks before, Bautista had not been arraigned on the added charge. The judge, who had understood counsel to have indicated otherwise, then interrupted the plea proceeding to have Bautista arraigned on the contempt charge.*fn5
The court then discussed with Bautista the matter of his plea to the contempt charge, which arose out of a violation of a court order that he stay away from the woman whom he admittedly assaulted. In connection with that charge, the trial judge did not repeat, with reference to the contempt charge, the advisement of immigration consequences she had given with specific reference to the assault charge. She advised appellant of the maximum penalty for the two charges, and again called upon the government to state the evidence with which it expected to prove both charges beyond a reasonable doubt. Appellant agreed that he had committed those acts, and confirmed that he was entering his pleas of guilty to assault and contempt voluntarily. Finally, before accepting Bautista's pleas to both offenses, the judge asked Bautista whether he had any questions, to which Bautista replied, "No, your honor." There was no objection to the manner in which the court conducted the proceeding.
Almost four-and-a-half years after he entered his pleas, on April 8, 2009, Bautista filed a motion to vacate judgment and withdraw guilty plea to the contempt charge on the ground that the court had failed to administer the alien-sentencing advisement "with regard to the contempt charge" in that the advice provided "was given in the singular," in connection with the assault charge. Bautista argued that the court's failure to repeat the advisement was "of critical importance" because he was now facing exclusion from the United States by virtue of the fact that he stood convicted of two misdemeanors. His counsel informed the court that the Department of Homeland Security had upheld a denial of his request that his Temporary Protected Status (TPS) be allowed to remain in effect. In relevant part, the order denying his request for continued TPS status read, "[a]n alien shall not be eligible for [TPS] . . . if . . . that alien has been convicted of . . . two or more misdemeanors in the United States."*fn6 The government opposed the motion to vacate the judgment and withdraw the plea of guilty to the charge of contempt. The trial court held no hearing on the motion and opposition, but entered a written opinion and order, denying the motion. This timely appeal followed.
Bautista argues that, although the court read the required advisement earlier in the plea proceeding, "the warning was only read in relation to the assault charge" and the court was required to repeat the advisement after he was arraigned on the contempt charge. Bautista also argues here, as he did in the trial court, that the "lack of any immigration consequence warning to Bautista is of critical significance as he now faces exclusion from the United States by virtue of two misdemeanor convictions, one of which is his . . . contempt of court charge."
The government counters that the initial colloquy between the court and appellant, during which the required advisement was read, was part of a rather brief "unitary proceeding" and that, although the court did not reread the advisement after appellant was arraigned on the contempt charge, "[he] was ...