In vacating his prior acceptance two and a half years ago of the plea of an criminal defendant/alien, a New York judge has ruled that a judge’s warning that a criminal defendant could be subject to deportation if he pleaded guilty to a misdemeanor did not lessen the ineffectiveness of his lawyer under a new standard expressed by the U.S. Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
The case is People v. Garcia, 4050-06. Garcia, a lawful permanent resident of the United States since 2005 and a native of the Dominican Republic, was arrested in 2006 after a police officer allegedly spotted him handing over a Ziploc bag containing cocaine to two men. At a plea hearing, Garcia’s criminal defense attorney claimed that he had discussed with Garcia and an attorney he had hired to advise on immigration matters, that there may be immigration consequences following a guilty plea.
The judge, prior to accepting Garcia’s plea, advised Garcia that he could possibly face deportation if he pleaded guilty. With this warning in mind, Garcia still pleaded guilty to a class A misdemeanor offense of possession of a controlled substance in the seventh degree.
Two years after his guilty plea, Garcia was apprehended and arrested by the Department of Homeland Security as he was returning from a trip abroad. He was placed in removal proceedings. He also filed a motion to vacate his criminal conviction on the basis that he had received ineffective assistance of counsel by his former criminal defense attorney, who Garcia alleged did not know immigration law and simply advised him to seek the assistance of an immigration specialist. Based upon this advice, Garcia went to an immigration paralegal (note: NOT an immigration lawyer), who told him that a guilty plea would not have any affect on his permanent residency. Garcia claimed that had he known the immigration consequences of his guilty plea, he would have opted to go to a trial instead.
Garcia relied on the Supreme Court’s case in Padilla, where the Court held that an attorney’s failure to inform a client of the deportation consequences of a guilty plea amounted to ineffective assistance of counsel.
The prosecutors in Garcia’s case argued that the Padilla did not apply in Garcia’s case, because the Supreme Court had indicated that Padilla did not apply retroactively to a motion to vacate a judgment or a conviction by a criminal defendant.
The judge admitted that different courts have applied Padilla in different ways, but concluded that Padilla did not create any new “laws”; rather, according to the judge, Padilla applied a well-established constitutional principle (right to effective counsel) to a new circumstance, so it is considered to be an application of an ‘old’ rule, which is always retroactive.
The judge then went on to decide whether Garcia proved, as required under the law, that his former criminal defense lawyer’s deficient performance caused him any legal prejudice. The judge concluded that because it was easy to determine whether Garcia could have suffered immigration consequences of a guilty plea, simply telling his client to go to an immigration specialist, without doing anything more, was ineffective assistance of counsel on the part of the defense attorney within the meaning of Padilla.
Accordingly, the judge vacated Garcia’s guilty plea from two and a half years ago, and scheduled a trial.
Noeleen G. Walder
New York Law Journal
September 1, 2010
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