Counsel can be Deemed Ineffective for Failing to Advise a Defendant of Collateral Consequences

The Superior Court of Pennsylvania recently considered whether a defendant’s counsel was ineffective for failing to inform him that a guilty plea to indecent assault would result of the loss of his vested pension rights under the Public Employee Pension Forfeiture Act (PEPFA). Defendant Joseph Abraham, a high school teacher, had offered $300 to a student in exchange for sex, and also touched her buttocks. Abraham gave the student a business card with his private cell phone number written on it. Several months later, the student disclosed the incident to school police. Abraham, 67 years old at the time, was allowed to retire with pension. In December of 2008, Abraham pled guilty to one count of corruption of minors and one count of indecent assault in the Court of Common Pleas of Allegheny County. Pursuant to PEPFA, by pleading guilty to indecent assault, Abraham forfeited his rights to his pension upon conviction.

On appeal, Abraham argued that his counsel at trial had been ineffective for failing to have informed him that he would lose his pension upon conviction prior to entering his guilty plea. In order for a plea bargain to be valid, a defendant’s plea must be knowing and voluntary. Under the Sixth Amendment to the US Constitution, all criminal defendants are guaranteed a right to assistance of counsel in making all decisions related to critical stages of the criminal process. In Strickland v. Washington, 466 U.S. 668, 686 (1984), the US Supreme Court held that counsel must be competent, and that the attorney’s actions must be effective. In reviewing Abraham’s claim of ineffective assistance, the Superior applied the test set forth in Strickland, considering whether Abraham’s attorney’s so undermined the adversarial process that the trial could not be relied on as having produced a fair result in his case.

The Court found that Abraham’s attorney’s failure to inform him that he would forfeit his pension rights upon pleading guilty to indecent assault rendered his assistance ineffective. It reasoned that because forfeiture of benefits is punitive in nature, it is intimately connected to the criminal process, and thus is knowledge that must have been communicated to Abraham by his attorney. The Court remanded the matter to hearing to determine what prejudice Abraham suffered.

Those accused of crimes, or administratively punished by “state” officials, are subject to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures that a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.