SB 625

            
2020 SESSION


20107739D

SENATE BILL NO. 625

AMENDMENT IN THE NATURE OF A SUBSTITUTE

(Proposed by the Senate Committee on the Judiciary

on February 5, 2020)

(Patron Prior to Substitute--Senator Surovell)

A BILL to amend the Code of Virginia by adding in Title 19.2 a
chapter numbered 19.4, consisting of a section numbered 19.2-327.15, relating
to failure to advise of consequences of guilty plea; vacation of conviction.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Title
19.2 a chapter numbered 19.4, consisting of a section numbered 19.2-327.15, as
follows:

CHAPTER 19.4.

VACATION OF CONVICTIONS FOR FAILURE TO ADVISE OF
CONSEQUENCES OF GUILTY PLEA.

� 19.2-327.15. Failure to advise of consequences of guilty
plea; vacation of conviction.

A. Notwithstanding any other provision of law or rule of
court, a person convicted or adjudicated delinquent of a criminal offense,
other than an offense for which registration is required as defined in �
9.1-902 or a violent felony as defined by � 17.1-805, who is not a citizen of
the United States may petition to vacate his conviction or adjudication of
delinquency if (i) (a) on or before July 1, 2019, the petitioner was found
guilty of such offense or (b) the petitioner received actual notice that he is
subject to deportation or removal from the United States, exclusion from
admission to the United States, or denial of naturalization under federal law
as a result of entering a plea of guilty or nolo contendere to such offense and
such petition is filed within one year after receiving such notice; (ii) a
conviction or adjudication of delinquency for such offense is grounds for
deportation or removal from the United States, exclusion from admission to the
United States, or denial of naturalization under federal law; and (iii) the
petitioner had not been advised of the potential consequences set forth in
clause (ii) of a conviction or adjudication of delinquency for such offense.
Only one such petition may be filed by a petitioner based upon such conviction
or adjudication of delinquency.

B. The petitioner shall file the petition with the circuit
court that entered the original judgment order of conviction or adjudication of
delinquency complained of in the petition or, if the original judgment order
was entered by a district court, the circuit court for the locality wherein the
district court sits.

C. The petitioner shall allege in the petition
categorically and with specificity, under oath, the following: (i) the offense
for which the petitioner was convicted or adjudicated delinquent; (ii) the date
the original judgment order of conviction or adjudication of delinquency was
entered; (iii) that the petitioner entered a plea of guilty or nolo contendere
to such offense; (iv) that a conviction of adjudication of delinquency for such
offense is grounds for deportation or removal from the United States, exclusion
from admission to the United States, or denial of naturalization under federal
law; (v) that the petitioner was not advised by his counsel of the potential
consequences set forth in clause (iv) of a conviction or adjudication of
delinquency for such offense prior to entering the plea; and (vi) that the
petitioner would not have pled guilty or nolo contendere to the offense if he
had been aware of such consequences.

D. The petitioner shall serve a copy of the petition on the
Attorney General. The Attorney General shall have 30 days after being served
with a copy of the petition in which to file a response to the petition.

E. The court may hold a hearing on the petition or, if the
allegations contained in the petition can be fully determined on the basis of
the record of the case resulting in the petitioners conviction or adjudication
of delinquency, the court may make a determination on the basis of the record
of the case without holding a hearing. However, the court shall hold a hearing
upon request of the petitioner or the Attorney General.

F. Upon consideration of the petition, the response by the
Commonwealth, previous records of the case, and any evidence presented at the
hearing, the court shall (i) dismiss the petition for failure to establish
allegations sufficient to justify vacating the petitioners conviction or (ii)
upon a finding by clear and convincing evidence that the petitioner has proven
all of the allegations contained in the petition, grant the petition and vacate
the petitioners conviction, subject to retrial in the discretion of the
Commonwealth. The burden of proof in a proceeding brought pursuant to this
section shall be upon the petitioner.

G. The petitioner shall be deemed to waive his privilege
with respect to communications between the petitioner and his trial counsel to
the extent necessary to permit a full and fair hearing on the alleged basis for
vacating the petitioners conviction.

H. In any petition filed pursuant to this section, the
petitioner is entitled to representation by counsel subject to the provisions
of Article 3 (� 19.2-157 et seq.) of Chapter 10.