Kirk D. Lewis 0000-00-00 00:00:00
Understanding and Applying Padilla v. Kentucky Ineffective assistance of counsel!!! No lawyer ever wants their name in the same sentence with such a claim. To avoid those claims, criminal defense attorneys must have an understanding of immigration law, especially here in Arizona. In past years, surprisingly, Arizona criminal defense attorneys did not have to stress about a claim of ineffective assistance of counsel when it came to explaining the immigration consequences of accepting a plea agreement in court. Under State v. Rosas, 183 Ariz. 421, 423 (1995), the law provided that an attorney’s failure to advise a defendant of the immigration consequences of his or her plea was not ineffective assistance of counsel because such advice related to a collateral matter. When the Supreme Court decided Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the previous law in Arizona under Rosas became completely irrelevant. See State v. Poblete, 260 P.3d 1102 (Ariz. App., 2011). The big change that the Supreme Court mandated in Padilla is simply that criminal defense lawyers are now required to advise their noncitizen clients of the potential immigration consequences of accepting a plea agreement. 130 S. Ct. at 1486. Thankfully, criminal defense attorneys are not now required to be completely competent in federal immigration law, but consulting with an immigration attorney would most certainly be recommended. Justice Stevens stated in his majority opinion for Padilla, that “there will undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. 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.” 130 S. Ct. at 1483. As a result, the failure of an attorney to advise their noncitizen client regarding the immigration consequences of their plea offer may lead to a legitimate claim for post-conviction relief. In Arizona, a request for post-conviction relief is governed by Rule 32 of the Arizona Rules of Criminal Procedure. Under Rule 32, an individual must seek post-conviction relief within 90 days of the entry of judgment and sentencing. If relief is sought after the 90 day statute of limitations, then the individual must demonstrate that the failure to file such relief was due to no fault of the defendant. Ariz. R. Crim. P., Rule 32.1(e). Even though the Supreme Court held in 2010 under Padilla that the failure to advise a defendant of the immigration consequences of their plea agreement constitutes ineffective assistance of counsel and is a legitimate ground for relief under Rule 32 of the Arizona Rules of Criminal Procedure, Arizona has held that the holding in Padilla v. Kentucky does not apply retroactively. See State v. Poblete, 260 P.3d 1102. Accordingly, the argument that the defendant was not aware of the immigration consequences during the 90 day period does not justify the failure to file for relief within the prescribed 90 days. Id. As long as there are no issues involving the timely filing of the petition for post-conviction relief, two separate points must be established in order to prevail. The defendant must first establish that their counsel’s representation fell below an objective standard of reasonableness. Padilla v. Kentucky, 130 S. Ct. at 1482. More specifically, under a Padilla argument, the defendant must show that their constitutional right to effective assistance of counsel was violated due to a failure of counsel to advise them of the immigration consequences of their plea agreement. Padilla v. Kentucky, 130 S. Ct. at 1482; Ariz. R. Crim. P., Rule 32.1(a). Thus, if the defendant can show that their attorney failed to give correct immigration advice, the defendant should have no difficulty establishing the first requirement under Padilla. The Supreme Court in Padilla stated the second prong as “whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 130 S. Ct. at 1482; See Also Strickland v. Washington, 466 U.S. 668, 694. Prior to 2004, it might have been easier to establish that reasonable probability here in Arizona. But, on December 1, 2004, the new Rule 17.2(f) of the Arizona Rules of Criminal Procedure went into effect. Rule 17.2(f) requires the court give each individual who wishes to accept a plea agreement an immigration advisement. The specific advisement in Rule 17.2(f) is as follows: That if he or she is not a citizen of the United States, the plea may have immigration consequences. Specifically, the court shall state, “If you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status. Admitting guilt may result in deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or removal, could prevent you from ever being able to get legal status in the United States, or could prevent you from becoming a United States citizen.” As a result of Arizona implementing Rule 17.2(f), a finding of “prejudice” will be more difficult to obtain. Without a showing of prejudice, the second prong cannot be established. See Padilla v. Kentucky, 130 S. Ct. at 1483. A possible line of reasoning to establish prejudice should focus on the quality of the immigration advice. According to Padilla, if the immigration consequences for a specific criminal statute are unclear, then the general advisement would suffice. On the other hand, if the immigration consequences were straightforward and succinct, then the advice given to the noncitizen defendant must also be straightforward and succinct. So, if an attorney needed to demonstrate that the general immigration advisement given by the court was not sufficient, the attorney should argue that the specific immigration consequences of the plea agreement are clear and succinct. Such a finding would require that the immigration advice be likewise straightforward and clear; thus, the defendant would have an argument that if they had received straightforward and clear immigration advice they would not have accepted the plea. Now that the law has been established by Padilla v. Kentucky, it is now the task of criminal attorneys to follow its guidelines. 130 S. Ct. 1473. Understanding the complexities of immigration law, or at least having an immigration attorney on speed dial, can both save you from the stress of an ineffective assistance of counsel allegation, and give you the satisfaction of helping a distressed client.
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