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State v. Muriithi5/31/2002
efendant of. In Cox v. State, 16 Kan. App. 2d 128, Syl. 1, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992), the Court of Appeals stated:
"Under K.S.A. 22-3210, a trial court is required to inform the defendant of the direct penal consequences of a guilty plea before accepting the guilty plea. The trial court is not required to inform a defendant of the collateral consequences of a guilty plea, including the loss of certain civil rights or privileges."
Defendant's parole eligibility and loss of unspecified civil rights were held to be collateral consequences. In City of Ottawa, 16 Kan. App. 2d 244, Syl, 2 and 3, the principle that the trial court need not inform a defendant of the collateral consequences of a guilty plea was reiterated, and suspension of defendant's driving privileges was held to be a collateral consequence. In In re J.C., 260 Kan. 851, 925 P.2d 415 (1996), the familiar principle was applied, and the court concluded that the possibility that a plea may be used to enhance the sentence for a later crime is a collateral consequence. The court stated that " uch a consequence is not definite, immediate, or automatic but rather only speculative." 260 Kan. 851, Syl. 2. In State v. Legg, 28 Kan. App. 2d 203, 13 P.3d 355 (2000), rev. denied 270 Kan. ___ (2001), the familiar principle was applied, and the Court of Appeals concluded that the mandatory registration under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was a collateral consequence because sex offender registration is not penal in nature and imposes no affirmative disability or restraint. 28 Kan. App. 2d at 207.
Muriithi would distinguish Kansas cases, particularly Bussell, from the present case on the ground that the adverse immigration consequences of his plea were definite, immediate, and almost automatic. 8 U.S.C. § 1227(a)(2)(E)(i) (2000) makes " ny alien who at any time after admission is convicted of a crime of domestic violence . . . deportable." Deportation follows upon a finding, at the conclusion of a removal proceeding, that the alien failed to prove by clear and convincing evidence that he or she is lawfully present in the United States. 8 U.S.C. § 1229a(c) (2000). An unanswered question is the likelihood that a removal proceeding will follow a conviction on a deportable offense. Once a removal proceeding is underway, deportation would seem to be nearly inevitable due to the hurdle of establishing lawful presence in this country for an alien who has pled guilty to an offense that made him or her deportable.
The Kansas Legislature has not yet acted to reduce or eliminate the possibility that an alien defendant will plead guilty or nolo contendere without being aware that there might be severe immigration consequences. In the absence of protective legislation in this state, Muriithi urges the court to reserve the direct/collateral- consequences analysis for the pleas of United States citizens. He contends that deportation is such a severe consequence that it ought to be in a separate category. Many states have created separate statutory treatment for immigration consequences of criminal pleas. Federal courts have expressed the view that immigration consequences are so severe as to merit particularized treatment.
Deportation is a collateral consequence of a plea to a criminal charge. We see no valid reason to distinguish the collateral consequence of deportation from the collateral consequences at issue in the Kansas cases previously noted. Absent a statute requiring the trial court to do so, it has no duty to advise a defendant of the immigration consequences of a plea of nolo contendere to a misdemeanor charge.
Muriithi's final argume
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