NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. 2020 VT 9 No. 2019-129 In re Reco Jones Supreme Court On Appeal from Superior Court, Washington Unit, Civil Division December Term, 2019 Mary Miles Teachout, J. Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Petitioner-Appellant. Rory T. Thibault, Washington County State’s Attorney, Barre, for Respondent-Appellee. PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned ¶ 1. ROBINSON, J. Petitioner appeals the civil division’s denial of his post- conviction relief (PCR) petition alleging that he received ineffective assistance of counsel and that his guilty plea was involuntary. Due to his immigration status, federal deportation policies, and Department of Corrections (DOC) policies, the sentence petitioner agreed to—nominally twelve years to life—likely amounted to a life sentence without the possibility of parole with only a minimal chance of deportation. We conclude that the voluntariness of his plea was compromised by misinformation given to him. We reverse, vacate petitioner’s conviction, and remand to the civil division with instructions to refer the case to the criminal division for further proceedings. ¶ 2. In his PCR petition, petitioner alleged that he entered his guilty plea involuntarily, “in reliance upon materially inaccurate advice of counsel.” After an evidentiary hearing, the PCR court made the following findings. Petitioner is a citizen of Barbados who came to the United States in 1976 when he was sixteen years old. In June 2012, he was arrested based on allegations that he had sexually assaulted his underage stepdaughter. He confessed on tape and in writing to the allegations. The State charged him with repeated aggravated sexual assault of a child, which carried a sentence of twenty-five years to mandatory life. ¶ 3. Initially, the State represented to defense counsel and the court that if petitioner pled guilty, federal Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), would take petitioner into custody immediately upon his entering a guilty plea, without waiting for sentencing. Faced with this charge, petitioner’s initial goal was to be deported to Barbados. Accordingly, he indicated that he would plead guilty, though he later changed his mind because he wanted to stay in Vermont and go to trial. Counsel urged him to accept a plea deal. She reasoned that if they arrived at the plea change and ICE was not present to pick up petitioner, he would not have to plead that day and could keep his options open. ¶ 4. In the meantime, defense counsel made further inquiries to try to ensure that ICE would, in fact, remove petitioner. She first obtained from the State a declaration from a ...
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