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State v. Mendez

Supreme Court of Vermont

February 26, 2016

State of Vermont
v.
Sergio Mendez

On Appeal from Superior Court, Rutland Unit, Criminal Division Thomas A. Zonay, J.

Rosemary M. Kennedy, Rutland County State's Attorney, and Alfonso Villegas, Law Clerk, Rutland, for Plaintiff-Appellee.

Dawn Matthews, and Mica Williams, Law Clerk, Prisoners' Rights Office, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

REIBER, C.J.

¶ 1. Defendant appeals the trial court's denial of his motion to withdraw his guilty pleas in two domestic assault cases. Defendant argues that the court erred by not using the term "deportation" or "clearly equivalent language" to advise him that deportation was a possible consequence of pleading guilty. We affirm.

¶ 2. Defendant is a citizen of the Dominican Republic who lived and worked legally in Massachusetts as a permanent resident of the United States. In June 2013, he pleaded guilty to one charge of felony domestic assault stemming from a May 2013 incident in which he attempted to strangle his girlfriend at her home in Rutland, Vermont. Defendant signed a written plea agreement prior to the change-of-plea hearing that read, in part: "I understand that if I am not a citizen of the United States of America, admitting to facts sufficient to warrant a finding of guilt or pleading guilty or nolo contendere (no contest) to a crime may have the consequences of deportation or denial of United States citizenship."

¶ 3. Additionally, during the change-of-plea colloquy pursuant to Vermont Rule of Criminal Procedure 11(c), the court orally advised defendant:

Do you understand that if you're not a United States citizen, this conviction could affect your ability to remain in the country, obtain your U.S. citizenship or reenter the country?

Defendant responded "I understand that." Upon accepting his change of plea, the court sentenced defendant to a term of imprisonment of eighteen to thirty-six months, all suspended, with a probationary term not to exceed two years.

¶ 4. Shortly after defendant was released on probation, the federal government issued a detainer to place him into deportation proceedings upon completion of his sentence. Then, in late October 2013, Rutland police responded to two calls in which defendant's girlfriend alleged that defendant battered or otherwise assaulted her. During the first call, defendant's girlfriend reported that he had pushed and squeezed her, causing pain in her ribs that required emergency room treatment, before defendant returned to Massachusetts. In the second call two days later, defendant's girlfriend reported that defendant was pounding on her front door and demanding entry into her residence. A police officer responded to the call, found defendant at the residence, and arrested him there.

¶ 5. As a result of the latter two incidents, in August 2014 defendant pleaded guilty both to a charge of violation of probation and to a second, misdemeanor charge of domestic assault. Again, defendant signed a written plea agreement prior to the change-of-plea hearing. The language of this agreement concerning the possible collateral consequences of a conviction on his immigration status was identical to that of the prior written agreement. Then, using slightly different language as compared to the prior change-of-plea colloquy, the court orally advised defendant:

Now do you understand that if you're not a United States citizen, that a new conviction and the probation violation may affect your ability to remain in the country, obtain U.S. citizenship or reenter the country?

Defendant responded "I understand that." The court sentenced defendant to a term of imprisonment of fifteen months to fifteen months and a day. ...


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