ADVICE ON CONSEQUENCES OF PLEA

Criminal Defense Attorney Must Advise Noncitizen Defendant of Immigration Consequences of Guilty Plea

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In Padilla v. Kentucky (2010) __ U.S. __, __ S.Ct. __, __ L.Ed.2d __, 2010 WL 1222274, defendant, a lawful, permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug distribution charges. In postconviction proceedings, defendant claimed ineffective assistance of counsel in that his attorney not only failed to advise him of the deportation consequences, but also told him not to worry about deportation because of defendant's long-term residency. The Kentucky Supreme Court denied relief on the ground that the Sixth Amendment guarantee of effective assistance of counsel does not protect defendants from erroneous deportation advice because deportation is merely a "collateral" consequence of a conviction. Held, judgment reversed.

(a) Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 5 Cal. Crim. Law (3d), Criminal Trial, §203, which held that a defendant is entitled to the effective assistance of competent counsel before deciding to plead guilty, controls. And the scope of this assistance is not defined by whether the consequences of the plea are direct or collateral, particularly as here, where deportation is intimately related to the criminal procedure. Thus, advice regarding deportation "is not categorically removed from the ambit of the Sixth Amendment right to counsel." (__ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 1222274, p. 6.)

(b) The question under Strickland is whether an attorney's representation falls below an objective standard of reasonableness. The weight of prevailing professional norms supports the view that an attorney must advise a noncitizen criminal defendant of the risk of deportation. Here, the relevant immigration statute was succinct, clear, and explicit in defining the deportation consequence of defendant's conviction, and defendant's attorney could have easily determined this simply from reading the statute. Instead, defendant's attorney provided false assurances. "When the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." (129 S.Ct. ___, ___ L.Ed.2d ___, 2009 WL 1222274, p. 7.) Whether defendant is entitled to relief will depend on whether he establishes on remand that he was prejudiced by his attorney's ineffectiveness. (129 S.Ct. ___, ___ L.Ed.2d ___, 2009 WL 1222274, p. 8.)

Witkin References

On advice on consequences of pleas generally, see 4 Cal. Crim. Law (3d), Pretrial Proceedings, §279 et seq.

On duty of trial court in accepting guilty plea to advise defendant of deportation or denial of naturalization, see 4 Cal. Crim. Law (3d), Pretrial Proceedings, §283.

On right to competent and effective counsel in criminal trials, see 5 Cal. Crim. Law (3d), Criminal Trial, §199 et seq.