Courts Have Discretion in Phrasing How to Advise Defendant of Consequences of Guilty Plea

In State v. Mendez, 2016 VT 24 (Feb. 26, 2016), the Vermont Supreme Court affirmed denial of defendant’s motion to withdraw his guilty pleas in two domestic assault cases. Defendant argued 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, but the Court rejected that argument, concluding that the language used by the court during the change-of-plea colloquy sufficiently complied with the applicable standards.

Issue: During two change-of-plea colloquies, the court did not use the term “deportation” in advising defendant of the effect of a conviction. Rather, the court stated each time that a conviction could “affect your ability to remain in the country.” Defendant responded that he understood. The issue is whether the court’s failure to use the word “deport” or “deportation” violated Vermont Rule of Criminal Procedure 11 and 13 VSA 6565.

Holding: The court has discretion to formulate an advisement that explains the risk of immigration consequences, including deportation, pursuant to Rule 11 and in exercising that discretion, the court need not recite the language of Rule 11 verbatim. It is within the court’s discretion to formulate an advisement using the phrase “may affect your ability to remain in the country,” rather than the specific word “deportation,” so long as the court’s language substantially complies with Rule 11. Further, although not necessary to reach this conclusion, the written plea agreements in this case used the specific term “deportation.”