Judge Elisa Koenderman
Bonilla moved to vacate his judgment of conviction for sexual abuse arguing his attorney failed to advise him of immigration consequences of his guilty plea. Yet, the court noted as Bonilla was removed from the United States, thus was unavailable to obey the mandate of the court, his motion was dismissed. Further, it stated, as an alternative holding, Bonilla’s motion was denied without a hearing. The court stated a defendant’s right to be present at a criminal trial was guaranteed by the Confrontation and Due Process Clauses, and by statute which required that a defendant must be personally present at trial, albeit a defendant may waive the right to be present, but waiver may not be inferred from the mere failure to appear. Here, it found Bonilla’s inability to appear was not volitional, thus as he had no control over his ability to appear, he would be unable to show the waiver of his right to be present was voluntary. Thus, dismissal of the motion was an appropriate exercise of the court’s discretion. Also, the court found the allegations to sustain the motion were made only by Bonilla, were unsupported by any other evidence, and were contradicted by the court record. Further, as Bonilla was unable to show he was prejudiced by his attorney’s alleged error, his motion was denied on the merits.
