On Appeal from Superior Court, Chittenden Unit, Criminal Division, Brian J. Grearson, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff- Appellee.
Seth Lipschutz, Prisoners’ Rights Office, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals the trial court’s denial of his motion to withdraw a guilty plea, arguing that he was not sufficiently advised of the potential immigration consequences of his conviction. See 13 V.S.A. § 6565(c)(1)-(2); V.R.Cr.P. 11(c)(7). We affirm because the language employed during defendant’s plea colloquy adequately advised defendant that a guilty plea could result in deportation or denial of U.S. citizenship.
¶ 2. Defendant pleaded guilty in August 2012 to three counts of misdemeanor domestic assault under 13 V.S.A. § 1042 and to an unrelated charge of driving under the influence. At the change-of-plea hearing pursuant to Vermont Rule of Criminal Procedure 11, the court advised defendant:
I do have to tell you that, if you’re not a U.S. citizen, a conviction on these offenses—the underlying facts—could have an impact on your ability to become a citizen, could lead to deportation, or you could be denied reentry into the country. Do you understand that?
Defendant responded: “Yes, your honor.” The court accepted defendant’s change of plea and sentenced him to eighteen-to-seventy months with no credit for time served, as previously agreed with the State. Defendant began to serve his sentence immediately.
¶ 3. More than a month later, defendant sent a letter to the trial court’s criminal division, asking to “take my plea back and re-open my case.” In the letter, defendant stated: “Due to ineffective counsel... I am now a subject of deportation, 8 U.S.C. § 1227(a)(2)(E). When I took... my plea, the court and counsel fail to advice me that a guilty plea on a crime of domestic violence would result in an automatic deportation.” 
¶ 4. The trial court denied defendant’s motion to withdraw his guilty plea. It reviewed the recording of the plea colloquy and determined that “the court explained to the defendant that the convictions could result in deportation and the defendant agreed he was aware he could be deported.” The court then concluded that there was compliance with Rule 11 and 13 V.S.A. § 6565 regarding the consequences of the plea. In its order, the trial court also cited Vermont Rule of Criminal Procedure 32(d), ruling that a motion to withdraw a plea after a sentence has been imposed and while in custody “is not available to defendant.” 
¶ 5. Defendant now appeals, arguing that the trial court should have granted his motion because the warning he received from the trial judge regarding immigration consequences was insufficient to satisfy the requirements of 13 V.S.A. § 6565(c)(1).  The State responds that the court’s warning substantially complied with the statute and corresponding criminal procedure rule, noting the court’s words were “simply a paraphrase of the statutory language, with no significant difference between the two.”
¶ 6. Section 6565(c)(1) of Title 13 requires that, before accepting a guilty plea, the court “shall address the defendant personally in open court, informing the defendant and determining that the defendant understands that, if he or she is not a citizen of the United States... pleading guilty... to a crime may have the consequences of deportation or denial of United States citizenship.”  Section 6565(c)(2) permits the defendant to withdraw a plea “at any time” if its two requirements are met. First, the court accepting the plea must have “fail[ ed ] to advise the defendant in accordance with [§ 6565(c)(1)].” 13 V.S.A. § 6565(c)(2). Second, the defendant must show “the plea and conviction may have or has had a negative consequence regarding his or her immigration status.” Id. If these two requirements are met, the court “shall vacate the judgment and permit the defendant to withdraw the plea.” Id.
¶ 7. We conclude that the first requirement of 13 V.S.A. § 6565(c)(2) was not met because the trial court adequately informed defendant of the potential immigration consequences of his conviction. Change-of-plea hearings must comply with Rule 11. To implement 13 V.S.A. § 6565(c)(1), Rule 11 ...