Vacating / Setting Aside A Conviction

Having a conviction on your criminal record may haunt you for the rest of your life. While you may have forgotten a one-time mistake you committed long ago, landlords, employers, lenders, and even potential suitors haven’t. They may conduct a background check, and when your conviction record shows up, deny you what you want.

But do you know you may have pleaded guilty unjustly? Most defendants plead guilty under conditions, which, had they been different, would have pleaded otherwise. For instance, they may have received a bad deal as part of a plea bargain or relied on an ineffective attorney to represent them. If this is you, do not worry because there’s still room to make it right.

California law has enabled convictions to be vacated/set aside under certain conditions. When the court sets aside your sentence, it will grant you the opportunity to enter a new plea that may result in a new fair trial. However, the process to set aside your conviction can be intricate. To navigate it successfully, you need the help of a skilled attorney.

At The Los Angeles Criminal Defense Attorney, we have lawyers with in-depth knowledge of California law and what it says about post-conviction matters. We invite you to contact us to set aside your sentence so we can help you achieve the best possible outcome.

Overview of Vacating or Setting Aside a Conviction

Generally, to vacate a conviction means nullifying the verdict. Put otherwise; it will appear as though the first trial and conviction never occurred. You will withdraw your plea, and the prosecution will have the chance of trying your case again. This means you may have to undergo another round of the criminal trial process.

Note that vacating a conviction is different from dismissing a case. ‘Vacating’ or ‘setting aside’ is used when referring to nullifying a specific judgment from the judge (in this case, a guilty or ‘no contest’ judgment). On the other hand, ‘dismissing’ applies to the entire case. It means that the case is thrown out for reasons other than its factual merits. While a vacated judgment may result in a new trial for the same case, a dismissed case is concluded at a particular preliminary stage before trial. In other words, dismissal occurs before sentencing.

To kick off the process of setting aside your conviction, you have to file a timely motion with the court where your sentencing took place, which has to spell out a valid reason for your move to vacate. California law outlines several Penal Codes under which you may bring the motion to set aside a sentence, each of which provides different grounds for this motion. They include Penal Code (PC) 1018, PC 1016.5, and PC 1473.7.

  1. Vacating/Setting Aside A Conviction Under Penal Code 1018 (For Good Cause Within Six Months of Conviction)

California penal code provides that when you plead ‘no contest’ or are guilty of any charge against you, you do so knowingly, intelligently, and freely. But when this isn’t the case, because:

  • You learn afterward that you didn’t know all the repercussions of pleading guilty/no contest,
  • You were forced into taking the plea, or
  • The lawyer who represented you at trial was incompetent, or you didn’t have legal representation at all, you can move to vacate your conviction.

PC 1018 permits you to bring a Motion to Vacate Judgment, also known as a Motion to Withdraw a Plea.  If you win this Motion, the court will allow you to withdraw your initial plea so you can instead enter the ‘not guilty’ plea for your crime. In essence, your conviction is deleted, and your case starts again from the beginning. To win this motion, you need to demonstrate with clear and convincing evidence that you wouldn’t have pleaded ‘no contest’ or ‘guilty’ had you been aware of all the specifics.

According to PC 1018, if you show good cause and request to vacate your motion either before you’re convicted or within six months of your probation sentence (not prison/jail sentence), the court should grant your request to take back your plea and instead enter a ‘not guilty plea.’ Note that the court will only grant your motion if the points we mentioned above are true. But it may also approve your motion even if you received expert legal representation if it believes doing so is in the interest of justice.

Please keep in mind that you can also request the court to vacate your conviction after you’ve been sentenced to jail or prison. But in this case, you wouldn’t bring a Motion to Vacate Judgment for that to happen. Instead, your lawyer would file a Writ of Habeas Corpus (petition to argue that you’ve been illegally imprisoned). Alternatively, you may withdraw your plea via expungement proceedings.

Good Cause As The Legal Basis for Vacating a Conviction

California law doesn’t permit you to take back your plea simply because you feel sad about your decision to enter a guilty plea. Before the judge grants your request, you have to substantiate you have good cause to do so. Here, good cause implies that you pleaded guilty due to mistake, incompetence, inadvertence, ignorance, or any other factor that’s overreaching. The point is if you didn’t intelligently, freely, and knowingly plead guilty, the judge should grant the motion.

Examples to illustrate good cause include:

You Didn’t Know All the Repercussions of Your Plea.

When you plead ‘no contest’ or guilty under the presumption that you're aware of all the consequences that come with it, only later to realize that you’re going to suffer unexpected punishment, PC 1018 permits you take back that plea. You can successfully withdraw the plea if you prove by clear & convincing evidence that you wouldn’t have pleaded ‘no contest’ or guilty had you been aware of all the specifics at the time of taking the plea. Luckily, judges are required to interpret this concept liberally to uphold the interest of justice.

General examples of cases where you will be considered to have been unaware of the repercussions of your plea include but not limited to situations where you didn’t understand or know that your sentence:

  • Involved a mandatory prison or jail term
  • Would lead to the suspension/revocation of your professional license. Most convictions affect professional licenses. Unfortunately, this is a fact that most judges and even lawyers overlook when explaining to defendants the consequences of ‘no contest’ or guilty pleas.
  • Could lead to immigration consequences like deportation or inadmissibility, given that various convictions result in immigration-related consequences.
A Lawyer Didn’t Represent You During the Plea Taking.

Suppose you pleaded ‘no contest’ or guilty without a lawyer representing you. In that case, the judge has to grant your request to vacate your conviction if you prove you didn’t enter the plea knowingly, intelligently, and freely. Put otherwise, the point that you pleaded guilty without a lawyer isn’t in itself a warranty that the judge will agree to vacate your sentence. You need to demonstrate further that you didn’t do so knowingly, intelligently, and freely.

For instance, suppose you want to represent yourself. The judge explains that you have the legal right to a lawyer, but you explicitly and unequivocally state that you nonetheless wish to proceed with self-representation. In this case, the judge wouldn’t necessarily be obligated to vacate your conviction.

Consider this other example. Suppose the judge did not confirm whether or not you understood that you had the legal right to legal counsel, even if you were incapable of affording to retain one yourself. In this case, the judge would have to agree to your request to withdraw your plea. Equally, if the judge did not ensure you know and understand all the consequences that come with your plea, he/she would have to set aside your sentence.

An Incompetent Attorney Represented You

Even if a lawyer represent you at the time of taking your plea, but they either failed to:

  • Properly explain to you all the repercussions of the plea,
  • Probe your case appropriately,
  • Bring and argue appropriate motions,
  • Present sufficient mitigating factors to receive a less severe sentence, or
  • Persuaded you to take a plea that was not in your best interest, the judge should agree to vacate your sentence.

This defense is not as straightforward as it appears to be. To win the Motion to Vacate Judgment, you should be capable of proving that your attorney’s representation was below the objective standard of reasonableness under existing professional norms, which isn’t an easy thing to prove. What makes it hard is that:

  • The judge will usually not criticize a lawyer’s tactical decision by presuming to have better tactics.
  • The decision of whether to enter a guilty/no contest plea or not is yours to make, even if the lawyer disagrees with it, provided you knowingly and voluntarily do so.

However, if you successfully show that your lawyer indeed failed to give a reasonable standard of representation or guidance, the judge should agree to set aside your conviction. If you received legal representation from a public defender, the judge should appoint another lawyer to probe the basis for your motion. Similarly, if a private lawyer had represented you during the plea taking, you should retain a new legal counsel to review your case. This prevents conflicts of interest. It’s critical to know that if your new lawyer (whether a private or public one) believes you didn’t have any good cause to file the motion, they aren’t required to take your case.

You Were Compelled Into Pleading Guilty/‘No Contest.’

If you didn’t voluntarily and freely take the plea because someone coerced, lured, or threatened you to do so, the judge must grant your request to set aside your sentence. Coercion into taking a plea can occur if, for instance:

  • The judge or lawyer improperly pressurized you into taking a deal.
  • The arresting officer told you that if you did not plead guilty, they would harm your family. This would be police misconduct, which you should reveal to your attorney.
  • A co-accused threatened to hurt your family member if you didn’t plead guilty.

A guilty plea obtained through terror, coercion, blatant or subtle threats, or inducement is involuntary, and, therefore, a legal basis that can justify a vacation of a conviction.

What Happens If You Win the Motion to Set Aside a Conviction?

If the court agrees to set aside your sentence, it means you will have a new opportunity to challenge the charges against you. The guilty or ‘no contest’ plea will be erased, and your case will start again from the arraignment step.

However, note that going back to the arraignment stage has various negative consequences too. After your plea is erased, the prosecution may take any previous deals it had offered you off the table. By this, it means you may be forced to face a trial by the jury or plead guilty to more severe charges. But it’s only logical that if you’re requesting to withdraw your plea, it’s because you’ll benefit from the new results.

What If You Lose the Motion?

In case you lose the motion, you have to fulfill all the terms and conditions of your sentence. However, there are various options you can still pursue. One of them is appealing the judge’s decision. The other is to move to have your conviction record expunged.

  1. Vacating a Conviction Under PC 1016.5 (For Immigrants Who the Court Failed to Warn About the Possible Immigration Consequences)

PC 1016.5 of California law provides that courts must read specific advice to defendants facing criminal charges and are not US citizens. The defendant is advised that their charge could attract deportation exclusion from admission to the United States, or denial of naturalization according to the US laws.

Failure for the court to read this admonition and leads you to plead ‘no contest’ or guilty, you are entitled to seek to vacate the conviction if it can lead to inadmissibility or deportation. This serves as a kind of post-conviction relief that removes the immigration repercussions of the sentence.

There’s no statute of limitations for moving to set aside a conviction under PC 1016.5 because you weren’t advised of possible immigration repercussions as the law requires. However, for a vacation under this Penal Code to be successful, the court requires you to prove that the failure to warn you of the immigration consequences affected your decision to plead guilty.

For instance, if the judge didn’t advise you on the possible immigration consequences, but you’re a paralegal that’s trained in immigration statutes and were explicitly already aware of them, the judge may not vacate your conviction.

  1. Vacating a Conviction Under PC 1473.7 (For Immigrant Offenders Already Out of Custody)

PC 1473.7 permits immigrants who have been released from custody to bring a motion to set aside a sentence in criminal cases. The motion may be filed depending on:

  1. A prejudicial mistake which hurt the accused’s capability of meaningfully understanding, defending against, or consciously accepting the potential or actual immigration consequences of pleading ‘no contest’ or guilty
  2. Newly discovered proof of actual innocence.

Penal Code 1473.7 was effected on 1st January 2017. Before then, many immigrants had limited options to challenge their sentences.  One of the ways to challenge the legality of a conviction was to bring a habeas corpus petition.  However, a defendant could only bring this petition while still in custody (i.e., in prison, jail, or parole). After release from custody, they would no longer have the right to challenge their conviction. 

Consequently, most people lacked a remedy after release from custody. In some instances, individuals wouldn’t even realize that the sentence had subjected them to deportation until several years later. Even so, there wasn’t a way to return to court to have their conviction erased, even if they took the pleas without knowing the immigration-related repercussions or the only complaining witness withdrew their testimony.

Vacating a Conviction Based on a Prejudicial Error

PC 1473.7 allows judges to set aside a conviction if your case had a prejudicial error. For an error to be considered prejudicial, it needs to have damaged your capability of meaningfully understanding, defending against, or consciously accepting the potential or actual immigration repercussions of pleading ‘no contest’ or guilty.

Particularly, cases that can result in a motion to set aside a conviction because of prejudicial error include if:

  • Your lawyer violated their duty of probing your case and appropriately advised you about the various immigration-related consequences of your plea.
  • Your attorney did not defend against the immigration punishments that come with the plea by plea bargaining for immigration-safe alternatives.
  • You didn’t understand the kind of immigration repercussions you will face after pleading guilty, for example, because the court didn’t provide you with an interpreter as it is your right)

Setting Aside a Sentence Based On Newly-Discovered Proof

A new proof of your innocence can be another basis to bring the motion to set aside your sentence under Penal Code 1473.7. This evidence may include:

  • Another individual admitting to committing the offense
  • New scientific test results, for example, DNA testing.
  • The finding of new case elements that call vital proof into question, for example, contamination by the crime lab/the law enforcement officer or widespread fraud.

Statute of Limitations to Bring a Motion Under Penal Code 1473.7

You have to bring the motion to vacate a conviction under PC 1473.7 with reasonable diligence, and you must do so after:

  • The date of receiving a Notice to Appear in immigration court, or
  • The day on which a deportation order becomes final, whichever comes later

By ‘reasonable diligence’ it means without unjustifiable delay after you discover or reasonably could have discovered the proof supporting your motion to set aside your plea. However, you don’t need to wait for the Notice to Appear to bring a motion under PC 1473.3. You can file any time, including when seeking naturalization, a green card, or any other immigration relief.

Note that unlike a habeas corpus petition, which can be declined without any hearing being held, a motion to vacate under PC 1473.7 is entitled to a court hearing. You don’t necessarily need to attend the hearing personally, provided your attorney is present.

If the judge rules in your favor, your conviction will be set aside. The judge will then permit you to withdraw your original plea of ‘no contest’ or guilty. But unless the DA agrees to dismiss the initial charge against you, you still have to take responsibility for them, meaning a new trial or plea agreement.

However, you’ll receive credit for the period you had already served. And more importantly, you’ll have the chance to negotiate a new plea, which might have less severe immigration consequences. If the judge denies your motion, you can appeal their order. The government can also move to appeal the judge’s decision to grant your motion.

Appealing the Court's Decision to Deny Your Motion

As we mentioned earlier, you can appeal the judge’s verdict to deny the request to vacate your motion. If you successfully prove that the judge who declined your motion ruled based on a legal mistake or abused their discretion, you may win your appeal.

If you opt to appeal the court’s decision, you have to consult with a skilled appellate lawyer who is conversant with the stipulated deadlines and timeframes that govern appeals. The lawyer would also be conversant with the most convincing arguments to cite on your behalf.

Find a Post-Conviction Matters Attorney Near Me

At The Los Angeles Criminal Defense Attorney, we have successfully helped clients set aside their convictions, be it for immigration or any other purposes. If you’ve been convicted of an offense and feel that the sentencing is unjust, reach out to us right away. We are experienced in post-conviction relief matters and are committed to ensuring our clients receive the best possible outcome. Call us today at 310-564-2605 for a cost-free consultation, at which point we will discuss with you how we can help.

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