By Shaffer & Engle Law Offices, LLC posted in Deportation on Friday, February 22, 2013
Padilla does not apply retroactively to cases already final on direct review.
By Attorney Elisabeth K.H. Pasqualini, Federal Defense Attorney, Harrisburg, PA
In CHAIDEZ v. UNITED STATES, No. 11-820. Argued November 1, 2012-Decided February 20, 2013, the United States Supreme Court determined in a 7-2 decision that the application of Padilla v. Kentucky does not apply retroactivley to cases that were not either on review or committed after the decision in Padilla was announced. In its decision announced on February 20, 2013, the High Court found that the decision in Padilla announced a new rule and, therefore, is not applicable retroactively. A "case announces a new rule if the result was not dictated byprecedent existing at the time the defendant's conviction became final."
InPadilla v. Kentucky, 559 U. S. \__ (2010), (see_ link to prior article) this Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. We consider here whether that ruling applies retroactively, so that a person whose conviction became final before we decided Padilla can benefit from it. We conclude that, under the principles set out in Teague v. Lane, 489 U. S. 288 (1989),Padilladoes nothave retroactive effect.
In Padilla v. Kentucky,559 U.S. , 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court ruled that an alien offender's trial counsel provided ineffective assistance when counsel failed to advise the offender that by pleading to a drug distribution offence, the offender would automatically face deportation.
In Padilla, the offender, originally a native of Honduras but who had resided in the United States for 40 years and had served with the United States Armed Forces, was charged with transporting a large quantity of marijuana in his tractor-trailer through Kentucky. In his postconviction petition, the offender alleged that his trial counsel not only failed to advise him of the consequences of his guilty plea but also assured him that hedid not have to worry about his immigration status since he had been in the country so long.
The Kentucky Supreme Court denied the offender relief on the basis that the Sixth Amendment does not protect criminal defendants from erroneous advice about deportation since deportation is only a collateral consequence of his conviction. The United States Supreme Court reversed the Supreme Court of Kentucky's denial of postconviction relief, holding that constitutionally competent counsel would have advised the offender that his drug distribution conviction would subject him to automatic deportation. The consequence of deportation is intimately connected with the criminal process and that the offender's trial counsel was ineffective for failing to advise the offender that a plea of drug distribution charges would automatically face deportation.
The end result was that Padilla was permitted to withdraw his plea due to ineffective assistance of his trial counsel. The Chaidez decision limits the application of Padilla to cases that occurred or were under review after 2010.
Following Padilla, The Pennsylvania Supreme Court, in Commonwealth v. Abraham, 58 A.3d 42 (Pa., Dec. 7, 2012) held that trial counsel was not ineffective for failure to advise defendant that he would loose his publicemployee pension if he pled guilty. Not every failed piece of advice from defense counsel is deemed to be punitive in nature, therefore, allowing for relief under the Padilla decision.