concurring-in-part-and-dissenting-in-part">HUSPENI, Judge

(concurring in part, dissenting in part).

I concur with the conclusion of the majority that Byron’s motion to withdraw his guilty plea was not time-barred. I also agree that the state did not meet its burden of showing prejudice.

If the district court had denied Byron’s motion to withdraw the plea, I expect that this court would have affirmed that denial as being within the sound and broad discretion of the district court. I believe an affirmance is warranted here also on that same basis, and respectfully dissent from that portion of the majority opinion that reverses the district court.

In granting the motion to withdraw, the district court expressed concern:

I’m very troubled by the result here where the purpose of a stay of imposition rather than a stay of execution is clearly if the person behaves well to have a misdemeanor on their record. And there were no collateral consequences during the time that this pled felony was, in fact, a felony. The consequences now are based upon what appears to be a new rule or new application of the law.

It seems to me that a reviewing court might not only recognize the validity of a district court’s expressed concerns, but might also grant deference to those concerns. I take little issue with the majority’s analysis of post-9/11 immigration law and procedure, and concur with the views expressed in the concluding paragraph of the majority opinion, regarding the draconian nature of Byron losing his adopted home. I also remain convinced that the district court here exercised its broad discretion in a manner that it believed would ensure the fair administration of justice. I can find no abuse of discretion in that exercise and would affirm.

Citation profile

How this case has been treated — in progress