A-10543035
Decided by Board May 29, 1957
Conviction — Final in Texas where execution of sentence was suspended and alien placed on probation — Section 241 (a) (4), Immigration and Nationality Act.
(1) A final judgment of conviction exists for purposes of the immigration laws (section 241 (a) (4) of the 1952 act) when an alien has been convicted and sentenced in Texas to imprisonment for a crime involving moral turpitude, notwithstanding that his sentence has been suspended for the full period of confinement and he has been placed on probation under the provisions of article 781b of the Code of Criminal Procedure.
(2) The fact that under Texas law the court is required to discharge the defendant upon satisfactory fulfillment of the conditions of probation and may expunge the conviction from the record does not affect the finality of the conviction during the period of probation. Although such expungement might remove liability to deportation under section 241 (a) (4), that action is discretionary with the court and the possibility that expungement may be granted in the future does not divest the conviction of finality at this time.
NOTE — Instant case which involves suspension of sentence and probation under article 781b of the Texas Code of Criminal Procedure is to be distinguished from the situation where there has been suspension of sentence under article 778 of the Code. In the latter case, the conviction lacks finality until there has been a subsequent conviction. See Matter of L---- R----, A-8769665, Int. Dec. No. 846.
CHARGE:
Order: Act of 1952 — Convicted of crime within 5 years of entry — Theft.
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer finding the respondent deportable on the ground stated above. The appeal will be dismissed.
The respondent is a 24-year-old male, a native and citizen of Mexico, who has been admitted to the United States for permanent residence. On June 20, 1956, as a returning resident, he last entered the United States. The Service charges that he is deportable under section 241 (a) (4), 8 U.S.C. 1251 (a) (4), as one who, within 5 years after entry, has been convicted of a crime involving moral turpitude and has been sentenced to confinement for a year or more. The issue is whether there has been a "final" conviction.
Respondent was indicted by a State grand jury at El Paso, Texas, for the fraudulent taking of certain automotive equipment valued at $144.00. The crime was committed on or about March 31, 1956. On December 13, 1956, in a District Court of El Paso County, Texas, the respondent entered a plea of guilty. The case was then heard by a court without jury. The court, having considered the plea of guilty and the evidence, found the respondent guilty of the offense of theft of property of the value of $50.00 and over, and ordered him confined in the state penitentiary for 3 years. Sentence was ordered suspended for the full period of the confinement imposed and respondent was placed on probation for the 3 years on condition that he commit no other offense; that he avoid injurious or vicious habits; that he work faithfully at suitable employment; and that he post bond in the sum of $3,000.00.
To sustain a deportation charge based on conviction of crime and sentence to confinement under section 241 (a) (4) of the act, the Service must establish that there has been a "final" conviction ( Pino v. Landon, 349 U.S. 901; Matter of L---- R----, A-8769665, Int. Dec. No. 846). Whether a conviction is "final" is a matter to be determined under the law of the place where conviction occurred.
The special inquiry officer found that the conviction in the instant case was a final one. The examining officer agrees with this position and has submitted a carefully written brief asking that it be sustained. Counsel, however, argues that the conviction is not "final" for it is in the nature of an interlocutory order. We find the order to be a final one for the reasons we shall later state.
The law under which the respondent was placed on probation follows. It is contained in article 781b of Vernon's Code of Criminal Procedure, State of Texas, 1950 edition.
Art. 781b. Adult Probation and Parole Law
Authority to suspend sentence and place on parole
SECTION 1. The courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby, shall have the power, after conviction or a plea of guilty for any crime or offense except murder, rape, and offenses against morals, decency, and chastity where the maximum punishment assessed the defendant does not exceed ten (10) years imprisonment, and where the defendant has not been previously convicted of a felony, to suspend the imposition or the execution of sentence and may place the defendant on probation for the maximum period of the sentence imposed or if no sentence has been imposed for the maximum period for which the defendant might have been sentenced, or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided. Any such person placed on probation shall be under the supervision of such court and a probation and parole officer serving such court as hereinafter provided.Investigation
SEC. 2 * * *
Terms and conditions of probation
SEC. 3. Such court shall determine the terms and conditions of probation and may at any time during the period of probation alter or modify the conditions and may include among them the following, or any other that the probationer shall:
(a) Commit no offense against the laws of this or any other State or the United States;
(b) Avoid injurious or vicious habits;
(c) Avoid persons or places of disreputable or harmful character;
(d) Report to the probation and parole officer as directed;
(e) Permit the probation and parole officer to visit him at his home or elsewhere;
(f) Work faithfully at suitable employment as far as possible;
(g) Remain within a specified place;
(h) Pay his fine, if one be assessed, in one or several sums, and make restitution or reparation in any sum that the court shall determine; and
(i) Support his dependents.
Period of probation; discharge
SEC. 4. The period of probation shall be determined by such courts and may at any time be modified or terminated by such courts. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, such courts, by order duly entered, shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty, and the courts have discharged the defendant hereunder, such courts may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.
Arrest and detention; report; fugitives from justice; appeal from revocation
SEC. 5. At any time during the period of probation such courts may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation and parole officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the request of the judge of such courts. A probationer so arrested may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such probation and parole officer shall forthwith report such arrest and detention to such courts and submit in writing a report showing in what manner the probationer has violated his probation. Thereupon, the court shall cause the defendant to be brought before it and, after a hearing without a jury, may continue or revoke the probation and shall in such case proceed to deal with the case as if there had been no probation. If the defendant is arrested in a county or district in the State of Texas other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish such courts a report concerning said probationer, and such courts shall have authority after a hearing to continue or revoke probation and shall in such case proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward a transcript of such order to the clerk of the court of original jurisdiction, and the clerk of that court shall proceed as if the order of revocation had been issued by the court of original jurisdiction. Any probationer who removes himself from the State of Texas without permission of the court placing him on probation or the court to which jurisdiction he has been transferred shall be deemed and considered a fugitive from justice and shall be subject to extradition as now provided by law. No part of the time that the defendant is on probation shall be considered as any part of the time that he shall be sentenced to serve. The right of the probationer to appeal to the Court of Criminal Appeals for a review of the trial and conviction, as provided by law shall be accorded the probationer at the time he is placed on probation. When he is notified that his probation is revoked for violation of the conditions of probation and he is called on to serve a jail or penitentiary sentence he may appeal the revocation.Change of residence
SEC. 6. * * *.
Counsel contends that the order of the court is interlocutory because as long as sentence is suspended pending the respondent's compliance with the conditions of probation, the case is still pending in the State court and has not been fully adjudicated. He points out that the order of the court leaves unfinished the necessity of the discharge of the alien upon compliance with the conditions of probation and allows the court to revoke probation upon the respondent's failure to comply with the conditions of the order.
In Texas, a conviction exists after the entry of a "judgment" of conviction — the declaration of the court setting forth certain prescribed facts among which is the statement of the defendant's guilt (Vernon's Annotated Code of Criminal Procedure, Texas, article 766; Gossett v. State, 282 S.W. (2d) 59; Matter of L---- R----, A-8769665, Int. Dec. No. 846). The conviction, however, does not become final until a "sentence" is entered pronouncing the judgment and ordering it to be carried into execution in the manner prescribed by law. The sentence is the final judgment. The sentence need not be in any fixed form and may be in one order. (Vernon's Annotated Code of Criminal Procedure, article 767; Arcia v. State, 9 S.W. 685; Garbs v. State, 234 S.W. (2d) 869.) The issue as to whether there has been a final conviction requires a determination as to whether a "sentence" was entered in the instant case. Here an order was entered on December 17, 1956, containing a finding (judgment) of the guilt of the defendant and in the same order the court pronounced the finding of guilt and ordered respondent to be confined in the State penitentiary for 3 years. This is the entry of a sentence and this under Texas law makes the conviction a final one.
Execution of the sentence was suspended. However, the sentence imposed is the sentence. If the suspension of execution of sentence is revoked, no further sentence need be entered; execution of the sentence must follow as if there had been no probation. If respondent's probation is revoked, he will go to jail because of the sentence of December 13, 1956 (see Ex parte Gomez, 241 S.W. (2d) 153; Cromeans v. State, 268 S.W. (2d) 133; Beard v. State, 267 S.W. (2d) 551; Ex parte Fernandez, 241 S.W. (2d) 155). This judgment and this sentence can be reviewed on appeal (Vernon's Code of Criminal Procedure, article 781b, sec. 5) and would bring before a reviewing court a case in which the trial court left nothing undone to dispose of the issues before it. We find no state cases regarding such a conviction as not final, while cases we have cited reveal that the conviction is final.
Whatever the trial court may be called upon to do in the future in the respondent's case can have no effect upon the finality of his conviction as long as the judgment of guilt and sentence to punishment entered on December 13, 1956, remain of record. The conditions which a convicted defendant is willing to accept in return for suspension of execution of sentence can have bearing upon an issue as to whether or not a court entered a sentence. The provision for delay in the execution of the sentence does not rob the sentence of finality. (See Berman v. United States, 302 U.S. 211.)
Before we discuss the cases relied upon by counsel in support of his contention that the judgment of December 13, 1956, was not a final one, it would be well to point out that 2 procedures exist in Texas to temper the effect of a conviction for crime. A sentence may be suspended under article 778, Vernon's Code of Criminal Procedure, which provides that the sentence shall not become final until there arises a subsequent conviction for a felony; this procedure was not used in the instant case. Then there is the method called adult probation and parole. We have previously set forth the law relating to this process — one which was utilized in the instant case. The 2 procedures are separate and distinct ones. Election between the two is exclusively within the province of the court and once the court has chosen to act under one law it may not thereafter change and proceed under the other law ( Ex parte Pittman, 248 S.W. (2d) 159).
Suspension of sentence under article 778 results in a conviction which is lacking in finality until the happening of a subsequent conviction. This result is expressly provided for by statute ( Matter of L---- R----, A-8769665, Int. Dec. No. 846; Braswell v. United States, 224 F. (2d) 706 (C.C.A. 10, 1955), cert. den. 350 U.S. 845). We have pointed out that adult probation does result in a final conviction.
The published Texas decisions cited by counsel in his brief, and Matter of L---- R----, A-8769665, Int. Dec. No. 846, cited in his supplemental brief, refer to judgments of conviction where sentence has been suspended under article 778. These cases, of course, are not applicable to suspensions based on article 781b ( Dunn v. State, 265 S.W. (2d) 589).
Counsel has not supplied a copy of the unpublished decisions, relating to a member of the United States Navy, which he relies upon. We cannot, therefore, comment upon these cases. Parr v. United States, 225 F. (2d) 329 (C.C.A. 5, 1955), cert. granted 350 U.S. 861, cited by counsel, concerns the finality of judgment dismissing an indictment at the request of the Government. The section of law involved here was not in issue. Parr is not applicable in the instant proceeding where judgment was rendered on the merits after trial.
Pino v. Landon, 349 U.S. 901, concerned a Massachusetts procedure where the court "revoked" sentence after a probationary period had been served and placed the case "on file" subject to the call of the court. The Supreme Court held that the record did not establish finality of judgment. The instant case is distinguishable because there has been no revocation of the sentence. The judgment and sentence stand of record. (See Matter of G----, A-2098105, Int. Dec. No. 780.)
Counsel contends that the conviction is not final in the instant case because upon the satisfactory fulfillment of the conditions of probation and the expiration of the period of probation the court must discharge the defendant, and after discharge, the court may "expunge" the conviction from the record.
It would appear an expungement, although it would not completely obliterate the fact of conviction, would remove the liability to deportation which exists under section 241 (a) (4) of the Immigration and Nationality Act. In considering this contention, it must first be noted that the respondent has not been discharged from probation and the conviction has not been removed from the record. Moreover, it is clear that the law does not require the expungement of the record of conviction. Such action is a matter of discretion. This means that a defendant discharged from probation can nevertheless fail to divest himself of the status of a person convicted of a crime. The law merely creates a possibility that the record of conviction may be expunged after probation is satisfactorily served. The existence of such a possibility does not rob a conviction of finality. For example, an even stronger situation existed where the law of Pennsylvania provided that upon the completion of punishment a convicted person was to receive an automatic "pardon" — a pardon which would exempt the alien involved from deportation by reason of conviction of one crime. Nevertheless it was settled that the coming of a pardon into existence automatically upon the completion of the punishment did not relieve the alien from liability to deportation if at the time his case was under consideration in deportation proceedings he had not endured his full punishment ( United States ex rel. Forino v. Garfinkel, 166 F. (2d) 887 (C.C.A. 3, 1948); Matter of S----, 55845/168, 2 IN Dec. 588; Matter of M----, A-4783029, 2 IN Dec. 871, 872). Moreover, where a California law permitted a plea of guilty to be withdrawn and provided for dismissal of proceedings after a convicted person had completed his probation, we held that a conviction existed until the expungement actually occurred ( Matter of E---- V----, 1610-9315, 5 IN Dec. 194, and cases cited). Furthermore, it is settled that a final conviction exists although likelihood of receiving an executive pardon may be present ( Houvardas v. Wixon, 169 F. (2d) 980, cert. den. 336 U.S. 913). It follows that although for immigration purposes the conviction here may be wiped out by judicial action after the probationary period has been served, until that judicial action occurs, we must hold that a "final" conviction exists.
Counsel points to a conflict which may result if the Federal authorities attempt to deport an alien who is serving a probationary period and is under the control of a State court. The Immigration and Nationality Act provides for the deportation of an alien who is on probation (section 242 (h), Immigration and Nationality Act, 8 U.S.C. 1252 (h); see Ex parte Eng, 77 F. Supp. 74 (D.C., N.D. Calif., 1939); United States ex rel. Kiobge v. Day, 42 F. (2d) 716 (D.C., S.D.N.Y., 1929); United States ex rel. Sollano v. Doak, 5 F. Supp. 561 (D.C., N.D.N.Y., 1939), affd. 68 F. (2d) 1019).
Counsel argues that it is not enough that an alien be convicted of a crime involving moral turpitude. It is his position that the Service must further establish that the alien is an undesirable one. No authority is cited for this contention. The rule is well established that once the record satisfactorily reveals that an alien has been convicted of a crime involving moral turpitude, no further inquiry may be made as to the circumstances under which the crime was committed ( Matter of G----, 56040/547, 1 IN Dec. 8, 12). It is also settled that actual confinement is not required to make an alien deportable under section 241 (a) (4) ( Matter of M----, E-113322, 6 IN Dec. 346).
In brief, we hold that a final judgment of conviction exists for the purposes of the immigration laws when an alien who has been convicted and sentenced to imprisonment for a crime involving moral turpitude under the laws of the State of Texas has been placed on probation under the provisions of article 781b of the Code of Criminal Procedure of the State of Texas and the record of conviction exists at the time the case is being considered in deportation proceedings. (It must be emphasized that article 781b provides for suspension of execution of sentence and also provides for the suspension of the imposition of sentence. In this discussion we have not ruled upon the effect of a conviction where there has been a suspension of the imposition of sentence.)
Order: It is ordered that the appeal be and the same is hereby dismissed.