Deported man wants to re-open case (Fremont Tribune)

Deported man wants to re-open case
By Don Bowen/Fremont Tribune
Wednesday, Sep 09, 2009 - 10:57:23 am CDT

Just one month before Yobani Carrillo’s 19th birthday in October 2007, the U.S. permanent resident from Guatemala faced three counts of delivery of cocaine, each a Class II felony, in Dodge County District Court. Each count was punishable up to 50 years in prison.

Shortly after his birthday, he pleaded no contest to one count with the other two counts dismissed and sentenced to two years of supervised probation. In November, his attorney said that became a life sentence -- away from his family and everything he knew from the time he was 3 years old -- by being deported by U.S. Immigration Service to Guatemala.

Fremont attorney Rob Keith, representing Carrillo, has filed a petition in Dodge County District Court for post conviction relief -- in essence eliminating the no contest plea.

In the petition, Keith alleges Carrillo wasn’t aware it would lead to deportation.

Even though Carrillo is in Guatemala, his parents are still in Fremont and were at a hearing on the case Tuesday morning.

District Court Judge John Samson set Sept. 25 at 9 a.m. for a final hearing to decide the matter.

Since Carrillo has been deported, he cannot come back for the hearing, but Keith asked Samson if it would be possible for him to testify by telephone.

Samson said even though a new law allows testifying by telephone, he foresees logistical issues.

“I won’t know who will be on the other end testifying,” the judge said, adding Keith must come up with a way to verify Carrillo is actually testifying and how he would take the traditional witness oath before testifying.

Samson said in order for someone to testify by telephone, attorneys for both sides must agree and the judge must approve it.

Even if Samson grants the petition for post conviction relief, Dodge County Attorney Paul Vaughan said Carrillo wouldn’t be out of the woods. That would just mean they would start over again with him facing three charges of delivery of cocaine.

Vaughan has countered Keith’s petition by filing a motion to revoke Carrillo’s probation since he has not reported to Dodge County probation officers since November 2007.

Samson said he would decide on that motion at the same time he decides on Keith’s petition.

“He can’t be supervised by probation in Guatemala,” Vaughan said. “He did report to probation until he was picked up by immigration officials in November 2007.”

Keith said his client didn’t understand the unexpected consequences of his plea. By removing the plea, perhaps some day in the future he could return to the United States.

“Right now, he can never come back,” Keith said. “His parents can’t go to Guatemala because they’re political refugees.”

At best, Keith said Carrillo and his family hope he can get a visa some day to visit them.

“That’ll still probably be five to 10 years before that can happen, if we win,” Keith said. “We have a big uphill battle.”

Keith said people should not misunderstand Carrillo’s legal status.

“The key thing is that he’s legally here,” he said. “He has been. He was a permanent residence, but not a citizen.”

Because Carrillo was a permanent resident rather than a U.S. citizen delivery of cocaine is a crime that is on the list for automatic deportation, Keith said.

“That’s for life as it sits right now. He’s exiled for all practical purposes,” he said. “That’s because he didn’t have all the information he needed. It’s nothing that the other counsel did. He just didn’t have all the information. This is the only avenue that we have.

“We could technically end up in the same boat, if we can’t come up with some kind of agreement. It’s not an ideal situation to be in, but this is the only avenue that we have to get this kid back in the United States at some point. Right now, he’s not allowed to come here, and they’re not allowed to go there.”

Vaughan said this is a unique case.

“This could leave me in a quandary if the judge decides for them,” Vaughan said, adding if Samson does erase the no contest plea, he would start over and seek conviction on all three counts.

“But how do we go forward if the defendant is not here. We’re in real unchartered territory here,” Vaughan said. “The problem for me would be how to proceed if he’s in Guatemala. I would go forward as much as I can.”

That would mean setting a new arraignment date in district court, and when Carrillo wouldn’t show because he was deported, Vaughan would seek a warrant for his arrest.

“If the warrant is issued, that would put the case on hold. It could sit there for years until the warrant is served,” Vaughan said. “The warrant stops the time on statute of limitations.”