Sometimes a Conviction is Better than a Dismissal
by: Rjohnson • January 3, 2011 • no comments
On occasion, a defendant is better off with an actual conviction than with a dismissal resulting from diversion, community court, or another sort of delayed adjudication, because appeals and post-conviction relief are only possible in the case of a genuine conviction, but a dismissal can count as a conviction in immigration court and for some anti- recidivist statutes. Consider the following two hypothetical defendants. Both are charged with offenses relating to cocaine found in a car borrowed from a friend, so each one has a legitimate factual defense and might win at trial, but a victory at trial is not certain.
Defendant no. 1 is charged with delivery of a controlled substance and possession of a controlled substance. He is offered a conventional plea bargain: plead guilty to the possession charge in exchange for dismissal of the delivery charge, and agree to a sentence of probation. His attorney promises that a conviction for possession of a controlled substance won't have any collateral effects, such as loss of a job, deportation, or whatever. Ultimately, the attorney is wrong, and the defendant loses his realtor's license and his job as a result of the conviction. (By the way, I have no idea whether you'd lose a realtor's license for cocaine possession.)
Defendant no. 2 is charged only with possession of cocaine, not delivery. He is offered a standard deal; he pleads guilty and agrees to do community service and drug treatment, and after six months the court will dismiss the charges. His attorney promises that there won't be any collateral consequences. Because the court never accepts the guilty plea, and there is no finding of guilt, there isn't ultimately any conviction at all.
Defendant no. 1 could attack his conviction in post-conviction relief, and possibly in federal habeas corpus. He might prevail on the theory that his attorney was constitutionally inadequate and that he had entered his plea without understanding the consequences. Or maybe not; it depends on a lot of details. But he would have a court in which to make the argument.
Defendant no. 2 has no conviction to attack. He should be safe from consequences, but he is not. Under immigration law, for instance, a guilty plea plus restraint of liberty by a judge count as a conviction, even if the guilty plea is never accepted and the charges are dismissed. As legislatures try to broaden the reach of laws relating to recidivism, felon-in-possession statutes, sex-offender registration, and the like, they adopt broader and broader definitions of convictions, sometimes akin to the immigration-law definition.
Accordingly, although he could lose his job or be deported, defendant no. 2 cannot attack his non-conviction through normal channels. I had a case where my client, a legal immigrant, had been charged with theft and went through community court. He entered a guilty plea, did community service, and the charges were dismissed. He did not have counsel. If his guilty plea had been accepted and he had been convicted, as in the case of an ordinary plea deal, his plea could have been attacked in post-conviction relief. But, because he was never convicted, post-conviction relief is not available. Federal habeas corpus is not likely to be available, except maybe after he is actually arrested on immigration charges, because federal habeas corpus requires custody. The court denied my motion to correct the judgment under ORS 138.083, and the denial of that motion is not appealable. So, my client had a "conviction" for immigration purposes. But it was not a conviction under Oregon law, and thus he was foreclosed from any ordinary attack on his conviction.
For a federal conviction, he could seek a hoary old writ called coram nobis, a mechanism to attack a conviction that cannot be attacked through ordinary appeal or collateral review. But a petition for a writ of coram nobis is filed in the court that issued the conviction, and it has been explicitly abolished in Oregon law. So, in my client's case, he was quite a lot worse off because his case resulted in a dismissal rather than a conviction. It's worth knowing about that when you advise a client about community court, diversion, delayed adjudication, or some similar procedure. That wouldn't have helped my client, though, because he didn't have counsel when he entered his plea, so he's likely to be deported as a result of an uncounseled non-conviction.
Rankin Johnson IV is a Portland criminal defense attorney, handling primarily appeals, post-conviction relief, and federal habeas corpus. www.briefwright.com
