Supreme Court of the United States Holds Failure to Inform Defendant of the Potential for Deportation Prior to Entering a Plea of Guilt Amounts to Ineffective Assistance of Counsel

In a recent decision by the Supreme Court of the United States, the Court held that an attorney who fails to inform his client of the potential for deportation associated with a plea of guilty amounts to ineffective assistance of counsel. The case captioned Padilla v. Kentucky involved a defendant, Jose Padilla, who was a permanent resident of the United States for over forty years. In that time, Padilla had honorably served the United States as a member of the Armed Forces during the Vietnam War. Padilla was arrested and charged with transporting a large amount of marijuana via tractor-trailer while in Kentucky. As a permanent resident of the United States, a finding of guilt associated with said charges carries an automatic deportation. Nevertheless, Padilla’s counsel advised him to plead guilty to the charges, further indicating that he should not worry about deportation since he has lived in the country for so long.

Upon pleading guilty to the charges, Padilla faced a deportation hearing and appealed his guilty plea to the drug charges for post-conviction relief. Padilla alleges that had he been advised deportation would be a consequence associated with his plea, he would never have pled guilty, choosing instead to go to trial. The Kentucky Supreme Court denied Padilla’s post-conviction relief, citing that deportation was a collateral consequence associated with the drug charges and that Padilla’s counsel was effective under the Sixth Amendment. Under the test set forth by Strickland v. Washington, ineffective assistance of counsel under the Sixth Amendment must fall below an objective standard of reasonableness, and the defendant must show that, but for the erroneous advice of counsel, the result would have been different. The Court further stated that neither Strickland nor the Sixth Amendment differentiate between direct and collateral consequences when determining constitutional effective assistance of counsel.

Based upon Padilla’s drug trafficking charges, a presumption of automatic deportation should have been obvious simply by reading the removal statute. Therefore, Padilla’s claim for ineffective assistance of counsel satisfied the first prong of the Strickland test. The Court mentioned that cases in which deportation would not be automatic would only require an attorney to warn a defendant of the potential for collateral consequences. Padilla’s claim was then examined under the second prong of Strickland; but for the erroneous advice, the result would have been different. The Court found that in the case of a collateral matter such as deportation, both parties would actually benefit by informed decisions as to pleas of guilt. Therefore, the Court reversed Padilla’s plea of guilty and remanded his drug trafficking case to trial, and/or informed plea negotiations.

Effective Assistance of Counsel

A defendant in a criminal proceeding is entitled to the effective assistance of counsel under the Sixth Amendment of the United States Constitution. Effective assistance of counsel is defined as diligent, competent legal representation that meets the minimum standards of due care expected of an attorney. A defendant should be informed of the potential consequences associated with the charges and/or acceptance of a plea bargain, prior to negotiations or proceeding to trial. The Law Offices of Marc Neff has been successful in representing clients charged in criminal matters for over twenty years. If you have been charged with a criminal offense, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail Marc@nefflawoffices.com for a confidential consultation.