As we approach the two-year anniversary of the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. ____ (2010), the ramifications of Padilla remain unclear. Just yesterday, the New Jersey Supreme Court issued an 18-page decision ruling Padilla was not retroactive. Most observers agree that both Padilla's retroactive application and its effect on other collateral consequences cases will remain hot-button issues for the foreseeable future. But other Padilla issues are also being litigated. Earlier this month two Ohio decisions addressed Padilla. The first haled from the Eighth Appellate District of Ohio, while the other comes from the Sixth Circuit. Both merit a closer look, and the Eighth Appellate District's decision is particularly informative when compared with a Tenth Appellate District of Ohio opinion issued in November, 2011. These cases do not address novel, undetermined issues of law, but rather Padilla's more practical considerations. They highlight how criminal defense attorneys can comply with Padilla, the difficulties in compliance, and the particulars surrounding plea withdrawals.
A brief discussion of Padilla is warranted to understand later case law. Jose Padilla was a Honduran native and U.S. lawful permanent resident (LPR) arrested on drug-distribution charges in Kentucky. Padilla pleaded guilty in part because his attorney advised him that he need not worry about his immigration status because he had been in the country for so long (Padilla had been a LPR for over 40 years). Like almost all drug charges excepting very minor marijuana offenses, the drug-distribution charges against Padilla were deportable offenses under federal statute. As the Supreme Court explained, deportation or removal on such charges is virtually mandatory. The Kentucky Supreme Court denied Padilla's request for postconviction relief without an evidentiary hearing, ruling that the Sixth Amendment's guarantee of effective assistance of counsel did not include advice on deportation, as this was a collateral consequence of the plea. The Supreme Court of the United States reversed and remanded for further proceedings.
Justice Stevens delivered the Court's opinion, and was joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Justice Alito concurred in judgment, and was joined by Chief Justice Roberts. Justice Scalia dissented, and was joined by Justice Thomas. The majority rejected the Kentucky high court's collateral consequences reasoning, though it recognized that this was a widespread view among many appellate courts.
Stevens found that the Supreme Court had never adopted the collateral/direct consequence distinction. Further, he found that the penalty of deportation had been enmeshed with criminal convictions for almost a century, and as such Padilla's claim fell within the ambit of the Sixth Amendment right to counsel, including the Strickland v. Washington right to effective assistance of counsel. 466 U.S. 668 (1984). In Padilla the Court addressed only the first prong of the Strickland test: whether counsel's representation "fell below an objective standard of reasonableness." Id. at 688. The second prong, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," was not ruled upon by the Court, as it was not passed on in the lower court. Id. at 694. On the first prong, the majority held that when the consequence of deportation is "truly clear" (as in Padilla's case), counsel has a duty to give correct advice. Where the law "is not succinct and straightforward" counsel must only advise the noncitizen client that the criminal charges may carry the risk of adverse immigration consequences.
Alito concurred based on the affirmative misadvice claimed by Padilla, disagreeing that defense attorneys have any duties beyond refraining from giving incorrect advice. The concurrence held that attorneys should simply advise their clients that a criminal conviction may have adverse immigration consequences, and that the noncitizen should consult an immigration attorney for further advice. Alito's opinion is rather instructive as it details why most cases are not like Padilla's, where deportation is near certain. Alito notes that deportable offenses include aggravated felonies and crimes involving moral turpitude. Both terms escape easy definitions, and the crimes they may or may not encompass are up for debate. Also discussed is the variance between immigration consequences such as deportation and exclusion, noting that some noncitizens may not be deported because of their conviction, but could find themselves unable to reenter the United States after leaving. On its face Padilla's holding may appear straightforward in its application. Practically, as foreshadowed by the concurrence, its application has been anything but simple.
The Eighth District had occasion to review Padilla in it's recent case, State v. Kongkeo, 8th Dist. No. 96691, 2012-Ohio-356, decided February 2, 2012. There, defendant Ampha Kongkeo pleaded guilty to receiving stolen property and theft, both first degree misdemeanors. Pursuant to R.C. § 2943.031, the Court advised Kongkeo that the plea could have immigration consequences, including deportation. Two years later, when deportation proceedings were commenced, she filed a motion to withdraw her plea. She alleged that counsel did not address her citizenship status with the court, and did not properly inform her of possible immigration consequences or refer her to an immigration attorney. The lower court denied the motion without a hearing, and Kongkeo appealed the denial of a hearing. In Ohio, post-sentence plea withdrawals are permitted in only extraordinary cases, and are governed by a "manifest injustice" standard, defined as a "clear or openly unjust act." The lower court's refusal is reviewed for an abuse of discretion. In these circumstances a hearing was required only if the facts alleged by the defendant, if accepted as true, required a plea withdrawal be permitted. Kongkeo filed an affidavit in support, however that was contradicted by the record of the plea proceedings. Kongkeo had informed the Court that she was a noncitizen, prompting the Court to read her the statutorily-required language regarding immigration consequences. Defense counsel acknowledged on the record that this presented a "problem," and the Court reset the plea proceeding for a later date. Two weeks later, Kongkeo plead guilty after once again being read the statutory language regarding immigration consequences.
The Eighth District ruled that while the record did not specifically show Kongkeo and her attorney conferred on the possibility of deportation, that conclusion seemed "inescapable." Further, the Court ruled that it would be "irrational" to find counsel did not discuss the matter with Kongkeo after acknowledging it was a problem, and the trial court recessed after said acknowledgement. The Court ruled that the lower court could have concluded the affidavit presented was so self-serving and contrary to the record that it lacked credibility. In an interesting aside, the Court ruled that Padilla was inapplicable to the case because Padilla dealt with a false assurance that deportation would not occur, whereas Kongkeo's affidavit showed only that, "defense counsel did not discuss the residency consequences of the plea, not that defense counsel assured Kongkeo that she would not be deported if convicted." There can be little doubt that this is a mischaracterization of Padilla. The Padilla majority was clear in placing two duties upon defense counsel, that of correct advice where immigration consequences were clear, and that of the informing clients of the possibility of adverse immigration consequences where the law is unclear. Indeed, this characterization of Padilla fails even to comport with the Alito concurrence that would still require defense counsel to advise a defendant of adverse possibilities, and instruct them to seek advice from an immigration attorney.
This is not to say that the Court was incorrect in it's final conclusion. Viscerally it seems difficult to envision an attorney-client relationship where an attorney knows enough to acknowledge on the record that immigration consequences present a "problem," have the plea proceedings rescheduled, and then return without having addressed the issue. That said, knowing and acknowledging a "problem" exists with regards to a noncitizen's plea bargain is actually quite obvious, given the inherent complexities of immigration law. Further, the case begs the question whether Kongkeo's counsel was required to give accurate immigration advice to her pursuant to Padilla. That is, whether the two charges Kongkeo plead to fell within a "truly clear" area of immigration law where any criminal defense attorney would be able to properly advise their client. My own outside research on Kongkeo's crimes indicate that such determinations fall very far from the "truly clear" areas of law the Padilla majority described. For additional discussion, one need look no further than Capital University Law School Professor García Hernández's excellent crImmigration blog, that describes Ninth Circuit case law addressing whether receiving stolen property is a crime involving moral turpitude (it's not, see here) or an aggravated felony (it is, see here). There is also something to be said to the Court's statement that it was Kongkeo herself, and not her counsel, that initially alerted the Court to her immigration status. Nevertheless, the Court ruled that Kongkeo's testimony was simply not sufficiently credible to merit a hearing to determine whether manifest injustice existed.
The Tenth Appellate District ruled on similar issues in its November 22, 2011 decision of State v. Yahya, 10th Dist. No. 10AP-1190, 2011-Ohio-6090. There, defendant Saiqa Yahya sought to withdraw her plea to theft, a fourth-degree felony. Yahya, unlike Kongkeo, argued that her attorney advised her that her plea would not adversely affect her immigration status. She claimed that had she received the correct advice she would have gone to trial. As in Kongkeo, the lower court also denied Yahya's motion to withdraw her guilty plea without a hearing. The Tenth District found the denial of a hearing to be a threshold matter, and analyzed only that assignment of error.
Initially the Court noted that the court below had denied Yahya's request on the basis that she had failed to establish with reasonable probability that she would have proceeded to trial but for counsel's errors. The lower court highlighted Yahya's affidavit, where she repeatedly stated that had she known deportation was a possibility, she would have requested more time to contemplate the plea, not outright rejected it. The Tenth District, however, noted that Yahya stated that had she known the plea would result in mandatory detention (pending deportation proceedings), she would not have plead guilty. The Court found that Yayha was entitled to a hearing because trial counsel's assurance that she would not face deportation constituted ineffective assistance of counsel, the first prong of the Strickland test.
More important was the Court's finding that Yahya's particular conviction fell within Padilla's "succinct and straightforward" area of the law regarding the duty to properly advise a client. The original charge against
Yahya was theft by deception, a third-degree felony involving theft of items worth over $100,000 but less than $500,000. Yahya plead to a fourth-degree felony and was ordered to pay $131,549.27 in restitution. The Court cited federal law defining an "aggravated felony" as "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." As such, it was "sufficiently clear" that Yahya's plea would result in deportation.
The second Strickland prong required the Court to determine whether Yahya had shown a reasonable probability that but for counsel's errors, she would not have plead guilty. The Court noted Padilla's conclusion that a defendant must convince a court that the decision to reject the plea bargain "would have been rational under the circumstances." Next the Court distinguished several Ohio cases cited by the State, noting that in those cases the defendants were read the statutory language with regards to immigration consequences, but had claimed only a lack of advice, or incomplete advice, not incorrect advice. It also distinguished Yahya's case from those where defendant's affidavits were directly contradicted, or those where the court went beyond the statutory language and engaged in a "pointed" discussion with the accused. The Court also highlighted that Yahya had not waited to withdraw her plea, rather opting to do so rather quickly. Finally, the Court stated that even with the lower court's reading of the statutory language, it would be reasonable for a defendant to rely on their counsel's specific assurances over the court's admonition. The Court also considered the rationality of Yahya's claim in light of the automatic deportation she faced, and her being a LPR for 15 years, a third of her life. In those circumstances, the Court believed that Yayha would be quite encouraged to take her chances at trial. As such, the Court held that the ineffective assistance of counsel could constitute a manifest injustice such that she would be permitted to withdraw her guilty plea. Therefore, the trial court should determine at a hearing whether those allegations and the consequent prejudice were credible and a manifest injustice actually occurred. The Yahya decision is worth a read, given its insightful analysis of numerous Ohio state cases on the withdrawal of guilty pleas, and its extensive footnote on the significance of an affidavit in such cases.
The Tenth District also raised an interesting issue when it questioned whether the Court's recitation of the statutory language on immigration consequences could cure the attorney's erroneous advice where misadvice had occurred. The Kongkeo Court was certainly convinced that the statutory admonition weighed against the noncitizen's credibility, but then again, Kongkeo did not allege misadvice, but rather a lack of advice. That was a scenario the Tenth District acknowledged in such a way that it would seemingly have concurred with the Eighth District's ruling. This blogger, however, wonders whether the statutory admonitions can ever truly address a Padilla violation by counsel. The Court's statutory language appears to relate to the duty to verify that a plea be entered into voluntarily and knowingly. Padilla, meanwhile, requires counsel properly advise their client on immigration consequences. It is unclear how the court's admonition could cure constitutionally infirm actions by counsel. Moreover, one would hope that counsel would spend at least a little more time with their client than the Court does in reading all of one sentence.
Which brings us, perhaps mercifully, to the final case of this blog post, Pilla v. United States, 6th Cir. No. 10-4178 (Feb. 6, 2012). There, assistant professor Ramani Pilla sent herself hate mail which led to an extensive investigation by the FBI and Case Western University. She was eventually charged with making false, misleading, or fraudulent statements to the FBI. Pilla's counsel encouraged her to plea, given the "overwhelming evidence of her guilt." That evidence included surveillance camera stills, Pilla's confession, as well as telephone conversations and voicemails Pilla made to FBI agents. Pilla's counsel struck out with numerous experts whom he hoped would testify to Pilla' mental illness and addiction to Klonopin. Pilla's own suggestion, that someone broke into her house and wrote the letters not only lacked credibility, but a forensic examination of her computer would be prohibitively expensive. Pilla eventually plead guilty, and later sought a writ of coram nobis, an extraordinary writ available to some federal convicts who have completed their prison term. A petitioner must demonstrate a factual error unknown at trial, and that error must be fundamentally unjust such that it would have changed the outcome of the challenged proceeding had it been known.
As it relates to Padilla, Pilla's attorney did realize that he was out of his element with regards to immigration advice, and contacted an immigration attorney who had previously served as an INS acting regional director. That attorney concluded Pilla would not be pleading to an aggravated felony, and would not face automatic deportation. This advice was, unfortunately, incorrect.
The Sixth Circuit, like the Tenth District in Yahya, drew attention to Padilla's emphasis on whether a decision to reject a plea bargain was rational under the circumstances. In so doing, the Sixth Circuit avoided the retroactivity argument both sides had briefed. Instead, the Sixth Circuit focused on the prejudice prong of the ineffective assistance of counsel test, and whether it would have been rational for Pilla to proceed to trial. The Court found that given the incredible evidence against her, no rational defendant would have proceeded to trial. Further, the Court held that the only result from a trial would have been a longer prison sentence, followed by deportation. Pilla failed to create even a reasonable probability of prejudice. Therefore, she could not meet the elevated showing required of a writ of coram nobis-that her attorney's advice changed the outcome of the challenged proceeding. Pilla demonstrates how complex immigration law can be, and how difficult compliance with Padilla sometimes is, despite best efforts. It also serves to highlight the rationality discussion in Padilla, or what we might call the "straight-face test." That is, can a defendant really claim they would have proceeded to trial with a straight face? If not, it seems even Padilla will not save many from deportation.
Padilla has spawned numerous legal battles since it was decided, and these look to continue as it enters its "terrible twos." Given Ohio's rapidly expanding immigrant populations, it should come as no surprise that many of those battles are being fought right here in Ohio's state and federal courts. However Ohio courts rule on retroactivity or collateral consequence issues and Padilla's effect on those issues, Padilla's core focus remains muddled in application. As the cases above show, providing effective assistance of counsel before a plea, or litigating ineffective assistance of counsel afterwards, are neither easy nor straightforward tasks.
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