Grounds to Invalidate Guilty Pleas

Grounds to Invalidate Guilty Pleas

I. Violations of the Right to Counsel
It is a constitutional right for every defendant to have counsel at every stage of the criminal proceedings.

The right to counsel could be interpreted in may ways.

1. Denial of Counsel: If the court denies the defendant a request for counsel in almost all cases the result will be an order vacating the conviction Where an invalid waiver of the right to counsel is obtained , this also violates the right to counsel..
2. Refusal to Allow Self Representation: The conviction may also be held invalid if the defendant was denied his or her constitutional right to proceed in the proceedings which led to the prior conviction..
3. Ineffective Assistance of Counsel: The most common grounds for violating a conviction through habeaus corpus is ineffective assistance of counsel Some of the conduct by the defense which may be deemed ineffective assistance of counsel are.

A. Failure to conduct competent investigation of the facts.
B. Failure to research the law.
C. Failure to advice the defendant of the elements and defenses of the crime.
D. Failure to assist the defendant in withdrawing the guilty plea.
E. Failure to consult the defendant about an appeal.
F. Failure to defend against the immigration consequences of the plea.
G. Counsel misadvises the defendant about the immigration consequences of the plea.
H. Failure to seek out an immigration safe alternative disposition or sentence .

I.Failure to investigate mitigating facts
II. Invalid Guilty Pleas

1. Ineffective waiver of jury trial: The failure to explain the nature of the right to a jury trial would be grounds for vacating the conviction.
2. Ineffective waiver of right to remain silent: The defendant has the constitution al right to remain silent at all stages of the criminal proceedings.
3. Ineffective waiver of confrontation: The constitution requires a knowing and intelligent waiver of the right to confront witnesses in order for a plea to be valid.
4. Failure to establish factual basis: A plea is involuntary and invalid if the court taking the plea does not establish a sufficient factual basis for the plea. That is, if the defendant’s admissions during the plea colloquy, coupled with the prosecution’s offer of proof, do not cover all of the essential elements of the offense, the plea is arguably invalid on his ground.
5. Failure to inform defendant of the nature of the offense: In order for the plea to be valid the defendant must be informed of the nature of the offense and understand each element.
6. Failure to inform defendant of consequences of the plea: The defendant must be informed at the time of his/her plea of the following direct consequences:

1. The maximum possible penalty that may be imposed as a result of the plea.
2. Absolute or presumptive probation ineligibility
3. The maximum period of parole the defendant may have to serve after a state prison sentence.
4. Any mandatory requirement of registration
5. If the defendant is not a U.S. citizen the immigration admonitions under Penal Code section 1016.5 must be given.
6. Mandatory restitution requirement
7. Breach of plea bargain: If the government breaches the plea bargain agreement, it violates the defendant’s right to due process and renders the plea involuntary.
8. Failure to disclose plea agreement on the record: The court is required, under the law to state the terms of the plea agreement on the record, to insure that the plea is voluntary. Where some tangible prejudice has occurred from either a misunderstanding or breached of the bargained agreement, resentencing should be ordered and the plea agreement specifically enforced, or the defendant be allowed to withdraw his or her plea.
9. Coercion to enter plea: Coercion to enter a plea by either the court or the prosecution may render the plea invalid.
10. Failure to establish mental competency to enter plea: A defendant may not be criminally prosecuted while she/he is mentally incompetent and the state must give him access to procedures for determining his competency
11. Violations of the right to an Interpreter: Many convictions are potentially invalid on grounds of violation of the right to an Interpreter for limited English proficient defendants in criminal proceedings both directly because of violation of this right, and indirectly because of the violation of the many other fundamental constitutional rights that depend upon the defendants understanding what is happening in court.
These are the majority of the grounds which can be used to invalidate a conviction and alleviate any consequences which that conviction may have for immigration.