**** READ PADILLA V. KENTUCKY, No. 08-651, 2010 Lexis 2928 ****

Anyone have any thoughts on how this will impact plea practice?

It looks to me that we may need to add another page to the plea packet -- maybe something roughly similar to the Trial Court's Certification of Defendant's Right of Appeal.

Thoughts, comments, suggestions?

LBW

[This message was edited by Lee Westmoreland on 04-05-10 at .]

We have always faced the difficulty of having a lawyer deliver incorrect advice to a defendant about immigration. Not much to change unless judges and prosecutors are simply going to begin going to start saying, "Now, your lawyer has given you lots of advice, including some about immigration and deportation. That advice could be wrong. No matter what he told you, ICE could grab you up and deport you. Are you still willing to plead guilty?" And, isn't that what the admonishment already says?

The dissent got it right. Collateral consequences shouldn't be factored into evaluating the constitutional voluntariness of a guilty plea. Where does it stop?

quote:

---

Where does it stop?

---

I suppose you could stop at the point where the government has to "prove up" valid warnings before collateral consequences are enforceable. The process could be analogous to proving up prior judgments with certified copies and finger prints. Perhaps this is far-fetched but it's a rhetorical answer to a rhetorical question.

Yes, but what qualifies as a collateral consequence that we have to warn about? The reason that we distinguish between direct and collateral consequences is that we know what the direct consequences are and that they'll apply. We know he'll go to jail. (Or be on probation.) We know he'll pay a fine. We might know he could be deported. We might know he'll have to register as a sex offender. We know anyone with a conviction might lose their job, or have trouble finding one in the future, or not be able to get an apartment or join the military. Or might not be able to serve on a volunteer group or be a Troop Leader for their kid's Cub Scout group. When do we have to stop thinking for the defendant and warning him of every possible conceivable consequence that might result from him pleading guilty, even if it has nothing to do with our part of the case?

quote:

---

Originally posted by JB:
We have always faced the difficulty of having a lawyer deliver incorrect advice to a defendant about immigration. Not much to change unless judges and prosecutors are simply going to begin going to start saying, "Now, your lawyer has given you lots of advice, including some about immigration and deportation. That advice could be wrong. No matter what he told you, ICE could grab you up and deport you. Are you still willing to plead guilty?" And, isn't that what the admonishment already says?

The dissent got it right. Collateral consequences shouldn't be factored into evaluating the constitutional voluntariness of a guilty plea. Where does it stop?

---

Yes, all true. Unfortunately, the Padilla decision may be expanded to the point where we will have to refuse guilty pleas from non-citizens and go to trial.

JM

The Padilla opinion, by blurring the line between direct and indirect consequences, does make it difficult to know how to warn the defendant of the consequences of a guilty plea.

Presumably, deportation advice needed to be given because 5 members of the SCOTUS found those consequences to be so important. So, will we now need to run every other collateral consequence through that same SCOTUS filter or risk reversal?

Gun ownership.
Voting.
Jury service.
Eligibility for elected office.
Driver's license.
Loss of professional license.
Job.
Housing.
Scholarships.

This is just the tip of the collateral consequence iceburg. I suppose SCOTUS would say, oh, well, those things aren't as important. Really? Using what scale? The 5-votes says it ain't that important scale.

Wouldn't it make sense to draw the line at government sanctions vs. private sanctions?

Drivers License suspension? Yes.
No job delivering pizza? No.
No car = No prom date? No.

It would make more sense to let the legislative branch hash out those public policies. Now that duty has been appropriated by the third branch, and everything will be a contested "right" that must be litigated for each separate collateral consequence, ultimately subject to the whim of 9 robed lawyers.

Preposterous.

As usual, Scalia gets right to the point:

"In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed."

To read Padilla, click here.

quote:

---

It would make more sense to let the legislative branch hash out those public policies. Now that duty has been appropriated by the third branch [...]

---

One might imagine that the judicial branch is dropping hints to the legislative branch that collateral consequences are a flawed concept so perhaps new consequences should be appended directly onto the criminal statutes.

Does not the deportation admonishment in Article 26.13 protect most guilty pleas in Texas?

Unfortunately, the judicial admonishment required by C.C.P. 26.13 (a)(4), while somewhat helpful, does not completely take care of this problem in Texas. Here in our border county we receive a number of post-conviction writs, often filed under C.C.P. 11.072 many years after disposition of the case, which claim that trial defense counsel failed to adequately admonish his client about potential immigration consequences of a plea.

Based on my expereince with these cases, I read Padilla with great interest. However, I found it quite unenlightening in a number of respects.

First of all, as I read the majority opinion, it imposes a duty to admonish the client when the law clearly indicates that the conviction will result in deportation, as was the case in regard to Jose Padilla. However, this opinion also admits that there are many other situations in which the deportation consequences of a particular plea are unclear and uncertain and then states that, in such situations, counsel must do no more that advise the client that the pending charges may carry a risk of adverse immigration consequences. Yet, the majority opinion does not explain where or how to draw the line between these two types of situations.
Thus, in the end, we are left with a case by case hindsight evaluation of sufficiency of the advise given by counsel.

Secondly, I agree with the observations Judge Alito makes in his concurring opinion. In particular, I agree that Padilla opens the door to challenges based on a number of other collateral consequences of a conviction. I also am quite sure that dtermining whether a particular crime will result in deportation is often quite difficult and complex. As I have already noted, I also agree with Judge Alito's comments that determining which side of the line between a clear-cut situation requiring deportation and one in which the situation is less clear and counsel's duty is thus to only give a general admonishment about potential consequences is often very difficult to draw.

Third, the Padilla opinion does not address the issue of prejudice as a result of counsel's deficient performance and instead remands the case to the Kentucky Supreme Court, which had not previously addressed that issue. In my experience, this often becomes the key aspect of the challenge to counsel's performance.

Typcially, the writ applicant will utilize 20/20 hindsight to claim that they would not have pled had they known that they might be deported down the road. Of course, this claim is no different than the type of claim made by any other writ applicant, who years later when no longer facing a jury and a mountain of incriminating evidence, decides that he should have rolled the dice and gone to trial gets tired of serving time and thus files a post-conviction writ challenging voluntariness of his plea.

The challenge, in the final analysis, is to challenge credibility of such a claim, typically by attacking the motivation to assert it at this point.

Please indulge me while I provide a brief example of a case from Hidalgo County, which is currently pending on appeal.

The defendant pled guilty to possession of more than four ounces and less than five pounds of marihuana and received a sentence of 10 years adjudication in 1991. In 2008, he challenged said plea claiming that neither his attorney nor the court had warned him of the immigration consequences of said plea. The trial judge rejected the State's arguments that the claim was barred by laches and that, even if the applicant had not been admonished, he had failed to demonstrate harm and then granted relief.

The key point in this case is that a Texas deferred adjudication sentence did not become a conviction for immigration purposes until April 1, 1997, six years after the applicant entered his plea. Thus, all involved at the time of the plea correctly understood that the deferred sentence would not subject the applicant to deportation under the law at the time. However, the Illegal Immigration Reform and Immigrant Responsibility Act, which became effective on April 1, 1997, changed the law in this area and the federal Fifth Circuit held said change to be retroactive. Thus, unless defense counsel, the applicant, the trial judge, or the prosecutor could somehow read the future back when the plea was entered in 1991, they could not have known that said plea would result in deportation proceedings at a later date. In a nutshell, if counsel or the court had told the defendant about the applicable immigration law at the time, it would have encouraged him to plead guilty, and not discouraged him from doing so.

In addition, I would point out that I foresee a problem with any type of additional language in plea admonishment forms to deal with Padilla. After all, the forms we currently utilize in Hidalgo County, state, in rather general terms tracking C.C.P. 26.13 (a)(4), that the judge has told the defendant that, if he is not a U.S. citizen, the plea may result in deportation, exclusion from admission to this country, or denial of naturalization under federal law and that counsel has explained these admonishments to the defendant. While Padilla says that this general language may not be enough in a case where deportation is clearly going to result, any greater detail in the vast majority of cases where the immigration consequences are not so clear will run the risk of providing incomplete or inaccurate admonishments about the complex subject of immigration law.

I beleive that this danger of inadvertently giving too much detail and perhaps ending up making inaccurate comments is precisely why the statute utilzes the general terms mentioned above. While I have not found it recently, I also seem to recall a case stating that the statute deliberately requires the judge to simply say to the defendant that the immigration consequences mentioned in the statute will apply if he is not a citizen of the United States, without asking if that is the case. As I recall, the case noted that this general approach was intended to avoid any risk of the judge utilizing the defendant's citizenship status in deciding whether to accept the plea and what sentence should be imposed.

I would certainly be interested in any comments about Padilla or suggestions about dealing with challenges to the adequacy of admonishions about potential immigration consequences which other members of T.D.C.A.A. might have.

I'm not sure how it would work practically, but I think in order to protect the finality of the plea, we're going to have to start requiring Defense Counsel to file some sort of document roughly analogous to our Certification of Defendant's Right of Appeal -- though I doubt it would have to have the judge's signature.

How's this for a new wrinkle: could conceivably this opinion open the door to getting appointed IMMIGRATION counsel (or consultant) prior to plea?

If so, then great, yet more money we don't have . . .

This takes us back to a prior thread. Put your plea proceedings on the record!

But off the record, gently remind counsel about Padilla. Then, on the record, make it clear that you reminded counsel. That way the trial judge can make inquiries and allow additional time if required. This record will serve you if and when an IAC is made on habeas. Counsel should be more accountable and less likely to roll over. Yes, prosecutors have to make sure that their convictions stick by doing the work of defense counsel and the trial court, but that is nothing new.

I thought that ineffective assistance law was not supposed to be about improving representation. Seems like that's what SCOTUS set out to do in this opinion.

I include the CCP Art. 26.13 warning as part of a comprehensive written stipulation that the defendant's attorney and defendant sign, which reads as follows:

Effect on citizenship status. If the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendre (no contest) for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

The signature of both the defendant and attorney on this stipulation should remedy any Padilla problem.

Ken, not if the defense attorney makes a misrepresentation to the defendant. We have all had a lawyer come back and say, oh dear, I told him he wouldn't be deported, and now the law has changed or I got the law wrong, so please, please agree to undo the conviction.

Padilla opens the door to also make the argument that failing to give clear advice (I guess when 5 SCOTUS judges think it is clear) in some circumstances could also be ineffective.

Padilla is written by judges with clerks who can research immigration law for a year before writing an opinion. And the very advice they today deem clear could be murky in 10 years. It is a bad constitutional decision that strays from the bright lines of direct and collateral consequences.

Here is another thought.

So, defense lawyer tells defendant, "You will definitely be deported." Based on that advice, defendant demands a jury trial, passing up a plea bargain. Defendant gets convicted, gets maximum punishment and, lo and behold, doesn't get deported.

So, defendant then files a writ, claiming ineffective assistance, saying he would have accepted plea bargain but for bad advice.

Result?

This is the problem with linking collateral consequences to a criminal case. No defense attorney can ever know and deliver absolutely accurate advice on things that don't happen until some other entity makes a future decision. The only thing the defense attorney can know for certain is the potential punishment available for the crime charged.

SCOTUS judges haven't had to face that reality in a long time. At age 90, when was the last time Stevens was in a trial court?

I agree with John Bradley's observations. While the statutory judicial admonishment and written plea forms indicating that defense counsel made similar statements to his client are some help, the problem of how general or specific the warnings about potential immigration consequences must be remains. Padilla fails to explain where to draw the line between being too vague and general and being too specific; ends up calling for a case by case hindsight evaluation of whether counsel correctly guessed where to draw the line in that regard; and also does not give any guidance as to how an attorney can be asked to predict future changes in the applicable immigration law.

I have attended several seminars at which somone suggested that a defense attorney who is representing a non-citizen consult an imigration attorney concerning the potential consequences of a conviction. While this might be good advice, I share Mr. Westmoreland's concern about the potential financial impact attorneys doing so will have. After all, the vast majority of cases involve indigent defendants and thus, in most cases, the county would end up paying additional fees to defense counsel and/or the immigration attorney/consultant for this task.

I also agree with Mr. Bradley's comment that the judges on the U.S. Supreme Court have not been in the trenches dealing with the practical realities of dealing with criminal cases involving non-citizens in many years, if ever.

I would conclude by pointing out that a local attorney has already filed a C.C.P. 11.072 writ based on Padilla and told our post-conviction writ attorney that he plans to file several more shortly.

Of all the collateral consequences listed by JB and others, the most obvious one is this: if you are a foreigner in this--or any other country--and you misbehave, they will probably kick you out. This is so obvious that it should not require any warning from anyone. It is just common sense. That the Supremes now require def. attys to give specific warnings about this shows how out of touch some members of the Supremes are.