Padilla v. Kentucky: Just How Bad Does Legal Advice Need to Be to Constitute Ineffective Assistance of Counsel?

On October 13, 2009, the United States Supreme Court will hear oral arguments in the case of Padilla v. Kentucky, Case Number 08-651. While somewhat less-known and less-publicized than other cases on this term's docket, the case poses important criminal procedure issues regarding the interrelationship between immigration consequences flowing from criminal convictions, and the duty of criminal defense lawyers to advise clients of those potential consequences. Specifically, the issues presented in Padilla are:

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

The Padilla case is significant for two groups of people, both fairly significant in number if not popularity: non-citizen criminal defendants, and the criminal defense lawyers who represent them. The basic facts of the Padilla case are that the defendant is a legal permanent resident of the United States from Honduras who has lived in America for about 40 years, even serving in the United States military during the Vietnam War. In 2001 though he found himself indicted on four charges. His lawyer negotiated a plea deal that he entered which triggered automatic deportation. Prior to the plea Padilla asked his lawyer about the potential immigration consequences of the convictions he would face under the terms of the plea deal.

His lawyer told Padilla that he did not have to worry about any immigration consequences as a result of his plea and convictions. He then entered an agreement that his sentence would be the maximum term of 10 years, with 5 years to be served in prison with 5 years on probation to follow. Had the case gone to trial, Padilla would not have faced any more time than he got, and he actually could have presented mitigating factors to the jury for jury-sentencing under Kentucky law that might have led to parole eligibility after just 2 years. He also faced immediate deportation under federal immigration law as soon as he pleaded guilty and got convicted, contrary to his defense lawyer's advice.

In 2002 Padilla moved for a new trial based on the grossly erroneous advice of his lawyer that prompted him to accept a plea deal. The trial court denied his motion and the Kentucky Supreme Court affirmed the conviction by a 5 to 2 vote. Now the case will be argued in the United States Supreme Court, whose ruling on these issues could have far-reaching implications on criminal practice and procedure immediately upon issuance of the opinion in this case.

The New Hampshire Supreme Court dealt with a similar issue in a DWI case in State v. Sharkey in 2007. In that case, a lawyer had advised the defendant that he would lose his driver's license for 90 days if he pleaded guilty. Shortly after the plea, though, the defendant's license was revoked by the Massachusetts Registry of Motor Vehicles for the rest of his life, based on old prior convictions that his lawyer was aware of. On appeal the New Hampshire Supreme Court reversed that conviction, basing its' decision on the gross misadvice of the lawyer who crafted the plea deal. This is a similar type of gross misadvice that Padilla received and relied on.

This is a case to watch.

Have a safe night.

Mark Stevens

5 Manor Parkway
Salem, NH 03079




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