PER CURIAM:
Appellant Eduardo Bautista appeals the trial court's denial of his motion to vacate his conviction and withdraw his plea of guilty to the charge of criminal contempt.
The circumstances of the plea proceedings were unusual. During the first part of the proceedings, Bautista was advised of the potential immigration consequences of entering a plea of guilty to simple assault,
We begin our discussion of the issues with a more detailed account of the plea proceedings. At the outset of the plea proceedings of November 4, 2004, the trial judge was aware that Bautista was charged with simple assault, but for reasons not clear from the record was not aware that what the Assistant United States Attorney referred to as "the full information" set forth a charge of criminal contempt as well as the charge of assault. Before being made aware of the contempt charge, the judge engaged in a colloquy with appellant concerning his constitutional right to go to trial and the panoply of related rights that he could exercise if he did so, including his right to require the government to prove his guilt of the crime of assault beyond a reasonable doubt, the opportunity to cross-examine the government's witnesses and to put on evidence in his own behalf, the right to take the stand himself, or not to do so without incurring any negative inferences, and the right to appeal if found guilty, with appointed counsel if he could not afford counsel. The court then addressed the maximum penalty for the count of simple assault. After informing appellant of the maximum penalty, the judge advised him as follows, quoting virtually verbatim the language of § 16-713:
The judge then asked, "[d]o you understand that, sir?" Bautista replied, "I do." Bautista's counsel then started to tell the judge what the plea agreement was, whereupon the Assistant United States Attorney noted that the "full information" set forth charges of both assault and contempt. Bautista's counsel agreed. After a pause, the trial judge said, "I see only one, one information here for assault." The government then informed the court that Bautista and his counsel knew about the amended information "long ago" and that the parties were making no request for a continuance. Bautista's counsel acknowledged that she had been given a copy of the amended information a few weeks earlier.
Informed of the existence of the amended contempt charges, the trial judge attempted to resume the plea proceeding. She advised Bautista of the additional sentence that the court could impose, and asked him whether he wished to plead guilty. After Bautista's affirmative response, the court had the government state the evidence it expected to adduce on both charges. The government did so.
As the court was then completing its colloquy with Bautista about the plea, Bautista's counsel stated that while she had received the amended information some weeks before, Bautista had not been arraigned on the added charge. The judge, who had understood counsel to have indicated otherwise, then interrupted the plea proceeding to have Bautista arraigned on the contempt charge.
The court then discussed with Bautista the matter of his plea to the contempt charge, which arose out of a violation of a court order that he stay away from the woman whom he admittedly assaulted. In connection with that charge, the trial judge did not repeat, with reference to the contempt charge, the advisement of immigration consequences she had given with specific reference to the assault charge. She advised appellant of the maximum penalty for the two charges, and again called upon the government to state the evidence with which it expected to prove both charges beyond a reasonable doubt. Appellant agreed that he had committed those acts, and confirmed that he was entering his pleas of guilty to assault and contempt voluntarily. Finally, before accepting Bautista's pleas to both offenses, the judge asked Bautista whether he had any questions, to which Bautista replied, "No, your honor." There was no objection to the manner in which the court conducted the proceeding.
Almost four-and-a-half years after he entered his pleas, on April 8, 2009, Bautista filed a motion to vacate judgment and withdraw guilty plea to the contempt charge on the ground that the court had failed to administer the alien-sentencing advisement "with regard to the contempt
Bautista argues that, although the court read the required advisement earlier in the plea proceeding, "the warning was only read in relation to the assault charge" and the court was required to repeat the advisement after he was arraigned on the contempt charge. Bautista also argues here, as he did in the trial court, that the "lack of any immigration consequence warning to Bautista is of critical significance as he now faces exclusion from the United States by virtue of two misdemeanor convictions, one of which is his ... contempt of court charge."
The government counters that the initial colloquy between the court and appellant, during which the required advisement was read, was part of a rather brief "unitary proceeding" and that, although the court did not reread the advisement after appellant was arraigned on the contempt charge, "[he] was clearly on notice of [the] potential consequences" of the contempt conviction.
The issue presented is whether, in the circumstances presented, the court's warning of potential immigration consequences of a plea of guilty to simple assault in the initial part of the plea proceedings also served to give the statutorily required warning with respect to criminal contempt.
We preface our discussion of this issue with the observation that for noncitizen criminal defendants, "`preserving the ... right to remain in the United States may be more important ... than any potential jail sentence.'" Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010) (quoting INS v. St. Cyr, 533 U.S. 289, 322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Apparently recognizing this fact, the D.C. Council enacted the statute that we consider today as an important step toward ensuring that noncitizen defendants contemplating a guilty plea appreciate the immigration consequences that such an action may entail. The statute does not ask much of trial courts, but what it does require is clear.
In straightforward language, the controlling statute, D.C.Code § 16-713(a) (2001), provides that "[p]rior to acceptance of a plea of guilty ... to any offense punishable as a crime, the court shall"
Context makes clear, and we previously have recognized, that the categorical, emphatic phrasing of § 16-713 is no accident. Before § 16-713 was enacted, trial courts had discretion to permit defendants who had entered guilty pleas without full knowledge of the risk of deportation to withdraw such pleas. Alpizar, 595 A.2d at 993. The Council of the District of Columbia, however, perceived the courts to be "reluctan[t]" to grant such motions. Daramy v. United States, 750 A.2d 552, 555 (D.C.2000). Responding in part to this reluctance, id., the Council stepped in and enacted § 16-713, thereby "end[ing] the trial court's discretion to assess on a case-by-case basis whether such pleas should be vacated in the interest of justice." Alpizar, 595 A.2d at 993 (footnote omitted). In view of this history, it is not surprising that the resulting statute speaks in terms that we have called "mandatory," id., "categorical," Slytman v. United States, 804 A.2d 1113, 1116 (D.C.2002), and "compulsory," Daramy, 750 A.2d at 556. Indeed, as we explained in an early case refusing to apply the statute retroactively, the statute effected a sea-change in the law so dramatic that interpreting the statute to apply to guilty pleas entered before it was enacted "would have far reaching consequences for the criminal justice system and possibly for immigration proceedings based upon those convictions that would then be vacated." Alpizar, 595 A.2d at 993.
Regarding advisement of potential immigration consequences, the trial judge began in a most appropriate manner, quoting the statute virtually verbatim. Understandably, however, in light of the fact that the only charge of which she was then aware was simple assault, she directed it explicitly to that charge.
The government argues that because Bautista had heard the court's advice of immigration regarding the assault charge, he "was clearly on notice of those potential circumstances" when he entered his plea of guilty to contempt. We cannot agree.
The court used no language that suggested to Bautista that the advice it gave him specifically regarding assault applied also to the distinct and quite different offense of criminal contempt. In light of the fractured sequence of the proceeding, we are not convinced by the government's argument that the court conducted a "unitary proceeding" and that as a result of the court's advisement of potential immigration
At the outset of the proceeding both counsel were aware, as the court apparently was not, that the information had been amended to include a count of contempt. Neither counsel, however, pointed out to the court the omission of immigration advisement regarding a plea of guilty to contempt, and defense counsel did not object to that omission.
The government has not argued plain error either in its brief or at oral argument. Its decision not to do so is understandable, as we indicated in Slytman, supra, that the plain error standard does not usually apply in cases involving a failure to give the § 16-713 warning. 804 A.2d at 1117-1118.
At oral argument, however, the government argued for the first time that Bautista was required to show manifest injustice to prevail on his motion to vacate judgment and withdraw plea of guilty.
In the end, while we conclude that it is possible that Bautista understood that the advice of immigration consequences relating to assault also applied to contempt, it
Accordingly, the order on appeal is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
So ordered.