Jose I. Zalmeron, Appellant,
United States, Appellee.
Argued May 27, 2015
Appeals from the Superior Court of the District of Columbia (FEL-7542-93) Hon. Lee Satterfield, Trial Judge
Jeffrey Stein, with whom Jaclyn Frankfurt and James Klein were on the brief, for appellant.
John Cummings, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the briefs were filed, and Elizabeth Trosman, Assistant United States Attorney, were on the brief, for appellee.
Before Thompson and Beckwith, Associate Judges, and Belson, Senior Judge.
BECKWITH, ASSOCIATE JUDGE
Appellant José Zalmerón pleaded guilty to attempted possession with intent to distribute (PWID) a controlled substance in January of 1994. In March of 2014, Mr. Zalmerón moved to vacate his conviction and withdraw his guilty plea pursuant to D.C. Code § 16-713 (b) (2012 Repl.) because, as he stated in an affidavit, the trial judge never advised him that he could face adverse immigration consequences as a result of his guilty plea. Before the government's time to respond had expired, the trial judge denied the motion based on his recollection that the warnings were given. For the reasons explained below, we remand for further proceedings as described in this opinion.
After accepting Mr. Zalmerón's guilty plea in January 1994, the trial court sentenced him to one to three years of incarceration, suspended all of that sentence, and placed him on probation for eighteen months. In June of 1994, Mr. Zalmerón's probation was revoked and he was sent to prison and subsequently deported because of this conviction. Mr. Zalmerón later returned to the United States-the record does not say when-but he was again detained by the federal government and subjected to removal proceedings. At the time of oral argument, he was being held at an immigration detention facility in Virginia, and the U.S. Court of Appeals for the Fourth Circuit stayed his deportation while his appeal was under advisement in that court.
At some point-again, the record does not specify when-Mr. Zalmerón learned that D.C. law required the trial judge in his attempted PWID case to warn him of potential adverse immigration consequences before he entered a guilty plea. That statute, D.C. Code § 16-713 (a) (2012 Repl.), requires trial judges to advise non-citizen defendants of the immigration consequences of their convictions and provides that a defendant may have his conviction vacated and may withdraw his plea if the court failed to provide such a warning and the defendant was subsequently deported or suffered other immigration consequences. D.C. Code § 16-713 (b).
In February of 2014, Mr. Zalmerón moved to vacate his conviction and withdraw his plea, alleging that the required warnings were not given. The government did not respond to the motion. The trial court denied the motion, noting that Mr. Zalmerón's motion relied upon part of the Innocence Protection Act of 2001, D.C. Code § 22-4135 (2012 Repl.), which requires a petitioner to assert actual innocence, and that Mr. Zalmerón did not do so.
New counsel for Mr. Zalmerón filed a second motion in March of 2014, raising the same allegations under D.C. Code § 16-713 (b). Mr. Zalmerón also submitted a sworn affidavit indicating that he was not a citizen of the United States, that he faced adverse immigration consequences as a result of his conviction, and that the trial judge had not provided the required warnings prior to accepting his plea. In support of his assertion that the warnings were not given, Mr. Zalmerón pointed out that the jury waiver form that he signed did not provide the required advisement of potential immigration consequences. The motion noted that the Court Reporting and Recording Division of the Superior Court had informed counsel that transcripts of the plea hearing were no longer available.
The government did not respond to this motion either. The trial court denied the motion on April 1, 2014, stating that "[u]pon review of the chambers file the Court recalls that at the plea hearing it asked the Defendant his place of birth and subsequently advised Defendant of possible immigration consequences, including deportation from the United States, exclusion from the United States, or denial of naturalization by the United States."
On April 22, 2014, Mr. Zalmerón filed a motion asking the trial court to disclose the chambers file referred to in its order, arguing that the trial court "made a decision regarding an issue of fact (i.e. whether the Court advised Mr. Zalmerón as to possible immigration consequences at the time [he] entered a plea of guilty in 1994) based on evidence not currently in the record." Mr. ...