Collateral Effects of a Criminal Conviction in Colorado - June 2006 - Criminal Law
| Publication year | 2006 |
| Pages | 39 |
| Citation | Vol. 35 No. 6 Pg. 39 |
2006, June, Pg. 39. Collateral Effects of a Criminal Conviction in Colorado - June 2006 - Criminal Law
June 2006
Vol. 35, No. 6 [Page 39]
Criminal Law
Collateral Effects of a Criminal Conviction in Colorado
by Jennifer L. Bahnson, Robert J. Dieter
This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Column Editors:
Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver
This month's article was written by Jennifer L. Bahnson, Fort Collins, Deputy District Attorney - BahnsoJL@co.larimer.co.us; and Robert J. Dieter, former Clinical Professor of Law at the University of Colorado School of Law - Robert.Dieter@Colorado.edu.
This article explains the difference between direct and collateral consequences of convictions, discusses the responsibilities of defense counsel when advising clients of collateral consequences, and provides an overview of collateral consequences faced by defendants under Colorado and federal law.
Criminal defendants in Colorado can face collateral consequences associated with the criminal conviction that range from loss of employment to deportation. Some of these collateral consequences are well-known and some are relatively obscure. All can impact a criminal defendant's decision to either accept a plea bargain or proceed to trial. Failure to adequately advise a client of the possible direct and collateral consequences of a conviction might have grave consequences for the defendant, and could subject defense counsel to a claim of ineffective assistance of counsel, as well as to potential exposure to civil claims by the defendant.
Practitioners should note that there are numerous offenses that provide for an enhanced sentence on conviction for a second or subsequent violation.(fn1) Thus, in addition to the immediate and virtually certain consequences - such as a sentence - the original conviction, followed by subsequent criminal activity, could subject the defendant to an enhanced sentence for the subsequent criminal conduct. The enhanced sentence associated with the subsequent behavior generally is not considered a collateral consequence because its application depends only on future conduct.(fn2)
This article explains the distinction between direct and collateral consequences of a criminal conviction and discusses the criminal practitioner's responsibilities when advising a defendant of the consequences associated with entering a guilty plea. This article also presents the tests courts apply to claims of ineffective assistance of counsel when a defendant claims he or she was not properly advised. The final sections of the article survey the consequences of criminal convictions under Colorado and federal law and list professions and occupations that are regulated by license and could be affected by a criminal conviction.
Distinction Between Direct and Collateral Consequences
Colorado Rule of Criminal Procedure 11(b) requires that before accepting a plea of guilty or nolo contendere, the trial court must determine that the defendant understands the nature of the charge and the elements of the offense to which he or she is pleading guilty. The trial court also must determine that the defendant understands "the effect of his plea" and "the possible penalty or penalties" the court may impose if the plea is accepted.(fn3)
The trial court is not required to advise a defendant of every possible consequence of the plea.(fn4) To satisfy due process and the constitutional requirements of a knowing and voluntary guilty plea, the trial court need advise the defendant only of the "direct" consequences of the plea. Thus, the court is not required to advise the defendant of consequences that are deemed "collateral" to the conviction.(fn5)
Direct Consequences
Direct consequences are those that have "a definite, immediate, and largely automatic effect on the range of [a defendant's] punishment."(fn6) Matters concerning the nature of the sentence that can be imposed are viewed as direct consequences. Ordinarily, the court's obligation to advise the defendant of the "direct" consequences of a plea is satisfied if the court advises the defendant of the possible statutory penalties that may be imposed on conviction.(fn7) Direct consequences include the maximum penalty to which a defendant could be sentenced for a particular conviction,(fn8) as well as the imposition of a mandatory period of parole.(fn9)
Collateral Consequences
Collateral consequences, on the other hand, are "contingent on a future event, the occurrence of which is unknown when the defendant is sentenced."(fn10) Stated another way, when the consequences become operational only on action taken by an individual or agency other than the sentencing court, the consequences are deemed collateral.(fn11) Unlike direct consequences, the trial court is not required to advise the defendant of collateral consequences at the providency hearing.(fn12) There is an important caveat, however: although the trial court is not required to advise a defendant sua sponte of potential collateral consequences of a guilty plea, if the court does so and affirmatively misinforms a defendant concerning collateral consequences and the defendant reasonably relies on such misinformation, to his or her detriment, the plea might be invalid.(fn13)
Direct Versus Collateral
It is clear that the trial court must advise the defendant of the maximum statutory penalty that may be imposed on a conviction, which includes any mandatory period of parole. Additionally, the defendant must be advised of any mandatory minimum sentence that must be imposed.(fn14) Beyond that, there is not complete agreement on whether a consequence is direct or collateral.(fn15) For example, there is no agreement as to whether the defendant should be warned of the possibility of consecutive sentences.(fn16)
Colorado courts that have addressed the distinction between direct and collateral consequences, as well as the trial court's duty to advise the defendant of those consequences, have reached the following conclusions:
1. The defendant should be advised of the maximum restitution that must be imposed automatically by statute.(fn17)
2. Although a mandatory parole term is a direct consequence of a defendant's guilty plea, requiring an affirmative advisement by the court, the possibility of reincarceration for a parole violation is not a consequence for which an affirmative advisement is required.(fn18)
3. The possibility that the defendant's probation would be revoked if he or she continued to maintain innocence is not a direct consequence of the defendant's plea.(fn19)
4. The statutory duty to register as a sex offender in Colorado is a collateral consequence of a defendant's guilty plea. Although it flows automatically from the conviction, it does not enhance the defendant's punishment for the offense.(fn20)
5. Prison security classification is not the type of direct consequence that implicates the "range of possible punishment," and thus it is a collateral and not direct consequence of a guilty plea.(fn21)
6. The possible impact of a guilty plea on future criminal liability and sentencing under the habitual offender statute(fn22 )is not a direct consequence of a guilty plea.(fn23)
7. Deportation and immigration consequences are collateral to a guilty plea for purposes of a trial court's advisement.(fn24)
8. A defendant's loss of the right to vote during incarceration is a collateral consequence for which no advisement is required.(fn25)
9. The possibility of post-release supervision is not a direct consequence of a guilty plea and does not require advisement.(fn26)
10. Use of a state court guilty plea in a subsequent federal proceeding is not a direct consequence of the state guilty plea.(fn27)
Note that during the pendency of a deferred sentence, the deferred sentence is treated as a "conviction" for impeachment(fn28) and other purposes. These purposes include:
Effective Assistance of Counsel
A defendant is denied effective assistance of counsel when:
1) counsel misrepresents the direct consequences of the plea, such as providing incorrect information concerning the possible sentence that could be imposed on the conviction;(fn32)
2) the advice or information provided by counsel was below the range of competence reasonably expected of defense counsel;(fn33) and
3) the defendant was prejudiced by the erroneous advice.(fn34)
Also, a defendant may be denied effective assistance when counsel provides erroneous advice on the collateral consequences of the plea.(fn35)
Strickland Test
When a defendant raises a claim of ineffective assistance of counsel based on the failure of counsel to advise of a direct or collateral consequence of a plea, Colorado courts apply the two-part Strickland test to determine whether representation was ineffective.(fn36)...
To continue reading
Request your trial