THE CHANGING OBLIGATIONS OF TRIAL COURT AND ATTORNEY OBLIGATIONS IN THE WAKE OF PADILLA

By: Brienna Christiano, Albany Government Law Review

In recent history, there has been a significant upheaval in the understanding of what criminal defense attorneys and trial courts are obligated to tell criminal defendants regarding the deportation consequences of the accepted plea agreement.[1] Recent Supreme Court cases have created a complex line of cases that led to the overruling of a landmark New York Court of Appeals case, People v. Ford, 86 N.Y. 2d 397 (1995).[2] These decisions have created a new procedure for criminal defense attorneys and trial courts prior to a criminal defendant’s acceptance of a plea deal.[3]

In 2010, the Supreme Court decided Padilla v. Kentucky, a groundbreaking case holding that a criminal defendant who is not informed by his attorney of the immigration consequences of a criminal conviction prior to accepting a plea deal has a viable ineffective assistance of counsel claim under the Sixth Amendment.[4] Prior to the Padilla decision, most state and federal courts did not require attorneys to inform their clients of the consequences of their convictions.[5] In Padilla, the defendant, a native Honduran and Vietnam veteran, had been a “lawful permanent resident of the United States for more than forty years.”[6] Padilla pled guilty to the transportation of marijuana.[7] He claims that prior to entering the plea, his counsel not only failed to inform him of the consequences of a criminal conviction, but also erroneously told him that because he had been a resident of the United States for so long, he “did not have to worry about immigration status.”[8] Padilla then accepted the plea, which subsequently led to deportation proceedings being brought against him.[9]

The Court applied the standard set out in Strickland v. Washington for ineffective assistance of counsel claims, and determined that counsel must advise her client regarding the risk of deportation.[10] The Court reasoned that it should be relatively simple for attorneys to look through the relevant deportation statute to decide if their client’s conviction could lead to immigration consequences down the road.[11] As opposed to complicated immigration law, the statute outlining behaviors that lead aliens to be deported from the United States is more simplistic and accessible.[12]

In 2013, the Supreme Court decided Chaidez v. U.S., 133 S.Ct. 1103 (2013),[13] which affects the application of Padilla to defendants whose convictions were final prior to 2010. In that case, the Court explicitly stated that the Padilla holding does not apply retroactively to a person whose conviction was final prior to the date of the Padilla decision in 2010.[14] The appellant in Chaidez was similarly uninformed that her conviction would subject her to removal from the United States; Chaidez’s conviction became final in 2004.[15] The Court declined to apply Padilla retroactively based on its previous holding in Teague v. Lane, 489 U.S. 288 (1989), which held that “retroactivity of our criminal procedure decisions turn on whether they are novel.”[16] Padilla changed the law for most jurisdictions by imposing new obligations on attorneys. However, because the Court considered the holding to be a new rule it refused to apply it retroactively.[17]

The Padilla holding had a major impact on New York State’s position in this area. Prior to the Supreme Court’s decision in Padilla, People v. Ford was the controlling case in New York concerning whether an attorney had the duty to inform his client of the deportation consequences before his client accepts a plea deal.[18] In Ford, the defendant was showing a gun to his girlfriend and, believing the gun to be unloaded, pulled the trigger and instantly killed her.[19]

Following counsel’s advice, Ford pled guilty to manslaughter in the second degree.[20] Since Ford was a legally documented alien from Jamaica convicted of a crime involving moral turpitude, deportation proceedings were commenced against him shortly thereafter.[21] The court held that counsel’s failure to warn Ford of the possibility of deportation did not constitute ineffective assistance of counsel.[22] Applying the Strickland standard, the court reasoned that because Ford’s counsel did not misadvise him, but instead just omitted to mention any deportation consequences, the Strickland standard was not met.[23]

Furthermore, the court concluded that the trial court only has to inform the defendant of the direct consequences of his plea prior to its entry.[24] The court generally does not have an obligation to inform the defendant of the collateral consequences of his plea.[25] Deportation was deemed by the court to be a collateral consequence of a conviction because “it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system.”[26] Therefore, because the risk of deportation would be a unique concern to that particular defendant, the trial court was not obligated to inform him of the potentially life-changing impact that his conviction could have.

The Ford decision is clearly at odds with the Supreme Court’s holding in Padilla. The Court took up this issue in People v. Peque,.[27] The issue in the case was almost identical to that in Padilla, but the court considered whether a trial court must inform a criminal defendant of the deportation consequences of a criminal conviction prior to the acceptance of a plea or whether the duty rested solely on the defendant’s attorney.[28] The court held that “deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness.”[29]

Thus, although the court was split on the issue of whether deportation could be considered a direct or collateral consequence of a guilty plea, the court held that regardless, the risk of deportation is severe enough to warrant its discussion prior to the entry of a plea.[30] The court then partially overruled part of its prior holding in Ford. In particular, Peque overruled the part of Ford holding that a trial court’s omission of any discussion of deportation at the plea proceeding does not render the defendant’s plea involuntary.[31] Thus, trial courts now have the duty to tell defendants that, if they are not United States citizens, their felony guilty pleas may expose them to deportation proceedings.[32]

The Supreme Court’s ruling in Padilla has caused significant changes to the rights of non-citizen defendants. After Padilla, non-citizen defendants who are not warned by their counsel of the deportation consequences of the plea deal have a valid ineffective assistance of counsel claim under the Sixth Amendment.[33] Thus, Padilla has put a duty on attorneys to warn their clients of the possibility of immigration consequences stemming from a criminal conviction.[34] However, the recent Supreme Court holding in Chaidez informs that the Padilla holding only applies to individuals whose convictions were finalized after the Padilla decision was handed down in 2010. Criminal defendants wishing to raise an ineffective assistance of counsel claim under the Padilla holding must have a finalized conviction after 2010.[35] The New York Court of Appeals built off the Padilla decision in Peque by mandating that trial courts have the duty to inform all defendants of the possibility of deportation prior to entering into a plea deal.[36]

The Court of Appeals was undoubtedly influenced by the significant and harsh impact that deportation has on non-citizen defendants. The U.S. Immigration and Customs Enforcement (ICE) reports that “ICE conducted 133,551 removals of individuals apprehended in the interior of the United States.”[37] Additionally, “eighty-two percent of all interior removals had been previously convicted of a crime.”[38] An ICE spokesperson said: “ICE has been vocal about the shift in our immigration enforcement strategy to focus on convicted criminals, public safety and border security and our removal numbers illustrate this[.]”[39] With deportation rates at such staggering heights, it is imperative that criminal defendants are warned of the severe consequences of their acceptance of pleas.

[1] Vincent Bonventre, Supreme Court: Highlights … (Part 7—More Criminal Law Decisions), New York Court Watcher, January 3, 2011.

[2] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (holding that counsel must inform his clients who are criminal defendants of the immigration consequences of his conviction); Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013) (holding that Padilla does not have retroactive effect); People v. Ford, 86 N.Y. 2d 397 (N.Y. 1995).

[3] Padilla, 559 U.S. at 366.

[4] Id at 365.

[5] Kevin Johnson, Court Refuses to Apply Padilla v. Kentucky retroactively, SCOTUS Blog, Feb. 21, 2013, http://www.scotusblog.com/2013/02/opinion-recap-court-refuses-to-apply-padilla-v-kentucky-retroactively/.

[6] Padilla, 559 U.S. at 359.

[7] Padilla, 559 U.S. at 359; 8 U.S.C. § 1227(a)(2) (This statute lays out the types of crimes that warrant the deportation of aliens. Among the crimes that begin deportation proceedings include: crimes of moral turpitude, aggravated felony, high speed flight, failure to register as a sex offender, virtually any drug offense: whether it was a federal or state violation, drug addiction, and certain firearm offenses.).

[8] Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quoting 253 S.W. 3d 482, 483 (K.Y. 2008)).

[9] Padilla, 559 U.S. at 359.

[10] Padilla, 559 U.S. at 366–67; Strickland v. Washington, 466 U.S. 668, 687 (1984)) (The Court set the standard for ineffective assistance of counsel claims: “First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial[.]”).

[11] Padilla, 559 U.S. at 369.

[12] 8 U.S.C. § 122; Padilla, 559 U.S. at 385.

[13] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[14] Id.

[15] Id. at 1106.

[16] Id. at 1107; Teague v. Lane, 489 U.S. 288, 310 (1989) (“[W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”).

[17] Chaidez, 133 S.Ct. at 1110.

[18] People v. Ford, 86 N.Y.2d 397, 401 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168, 176 (N.Y. 2013).

[19] Ford, 86 N.Y.2d at 402.

[20] Id.

[21] Id.

[22] Id. at 404.

[23] Id. at 405.

[24] People v. Ford, 86 N.Y.2d 397, 403 (N.Y. 1995), overruled by People v. Peque, 22 N.Y.3d 168 (N.Y. 2013).

[25] Id. (Some examples the court gives of collateral consequences are the loss of the right to vote, travel abroad, possess firearms, or civil service employment.).

[26] Id.

[27] People v. Peque, 22 N.Y.3d 168, 175 (N.Y. 2013).

[28] Id. at 175.

[29] Id. at 194.

[30] Id. at 189, 192–93, 196, 204, 207*12–13 (“[A] convicted non-citizen defendant’s actual removal from the country exacts the greatest toll on the defendant and his or her family . . . [T]he defendant loses the precious rights and opportunities available to all resident of the United States.”).

[31] Id. at 195–96.

[32] Id. at 197.

[33] Padilla v. Kentucky, 559 U.S. 356, 364–66 (2010).

[34] Id. at 374.

[35] Chaidez v. U.S., 133 S.Ct. 1103, 1105 (2013).

[36] People v. Peque, 22 N.Y.3d 168, 197.

[37] FY 2013 ICE Immigration Removals, U.S. Dep’t of Homeland Security: ICE, (Jan. 25, 2014, 12:53 PM (last visited August 22, 2014), http://www.ice.gov/removal-statistics/. (alterations in original).

[38] Id.

[39] Stephen Dinan, Report: Deportations Plummet in 2013, Lowest Since 2007, Wash. Times, Oct. 30, 2013. (alterations in original).

Advertisements

1 Comment

Filed under Uncategorized

One response to “THE CHANGING OBLIGATIONS OF TRIAL COURT AND ATTORNEY OBLIGATIONS IN THE WAKE OF PADILLA

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s