People v. Pozo , 712 P.2d 1044 ( 1986 )

TURSI, Judge,

specially concurring.

I concur in the result reached by the majority because I believe, under the totality of the facts before us, the withdrawal of the guilty plea to sexual assault is necessary to correct a manifest injustice.

The trial court found as fact that defendant did not know that one consequence of his pleading guilty to a crime involving moral turpitude would likely be deportation. But, concluding that deportation was a collateral consequence, the trial court ruled that defendant’s attorney’s failure to apprise him of this consequence was not ineffective assistance under existing Colorado law. On this narrow issue, the trial court did not err. See People v. District Court, 191 Colo. 298, 552 P.2d 297 (1976).

However, the resolution of the ineffective assistance of counsel question does not resolve the underlying and fundamental issue in this case. The issue is whether the unknown consequence of the plea resulted in such manifest injustice that fundamental fairness requires defendant be allowed to withdraw his plea of guilty to sexual assault. For resolution of this issue, I find guidance in ABA, Standards for Criminal Justice, ch. 14 (2d ed. 1979) concerning guilty pleas.

ABA, Standards for Criminal Justice Standard 14 — 2.1(b) (2d ed. 1979) provides that, upon timely motion, even after sentencing pursuant to a plea of guilty, the court should allow a defendant to withdraw his plea if he proves that the withdrawal is necessary to correct a manifest injustice. The history of the standard explains that the word “should” was substituted for “may” in the revision of the standard. Further, the standard as revised clarifies that the specific grounds listed therein as grounds for determination, such as ineffective assistance of counsel, are intended as examples and not limitations of what constitute manifest injustice.

Thus, since we have a binding finding of fact that defendant did not know of the consequence of deportation, and since it is undisputed that but for this lack of knowledge he would not have pled guilty, we must determine whether refusal to allow defendant to withdraw his plea results in a manifest injustice. I believe it does and agree that the trial court’s refusal to vacate the plea should be reversed, the plea should be vacated, and the charges reinstated for further proceedings in the trial court.

Prospectively, if a trial court is apprised of a defendant’s alienage, I would require that the possible consequence of deportation be encompassed within the Crim.P. 11(b)(4) advisal. Further, since this will no longer be a matter of first impression in Colorado, trial counsel are now on notice that the failure to advise their alien clients fully as to the probable deportation consequences of guilty pleas will be viewed as ineffective assistance of counsel.