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Sunday, July 10, 2011
Ind. Courts - "When Judge Fran Gull recently took a 19-year-old drunk driver’s guilty plea, she asked the teen whether she knew her plea could affect her immigration status"
How the 2010 SCOTUS decision in Padilla v. Kentucky is being implemented in Indiana is the subject of a long Sunday story in the Fort Wayne Journal Gazette, reported by Rebecca S. Green. Here are some quotes:
When an Allen Superior Court judge now handles a guilty plea, among the questions posed to the defendant is: “If you are not a United States citizen, has your lawyer advised you of any immigration consequences of a guilty plea?” Gull said.There is much more to the story.The warning is a trickle-down effect of the March 2010 U.S. Supreme Court decision in Padilla v. Kentucky.
In short, the ruling requires defense attorneys to warn their clients that a guilty plea could affect their residency in the country, regardless of whether they are naturalized U.S. citizens, permanent legal residents, visitors or illegal immigrants.
While the ruling puts the onus on criminal defense attorneys, local courts decided that such a process is best left to judges.
A Honduras native who served in the U.S. Army and lived legally in the U.S. for 40 years, Jose Padilla pleaded guilty in a Kentucky court to transporting a large amount of marijuana.
Because the offense involved drug distribution, Padilla was vulnerable to deportation. But his defense attorney advised him otherwise. Padilla pleaded guilty.
Padilla argued, when the case was heard by the nation’s highest court, that his lawyer’s failure to properly advise him of all the risks of pleading guilty was tantamount to ineffective assistance of counsel.
Had Padilla known of all the consequences, he would have potentially taken his chances with a jury trial.
The Supreme Court agreed.
“(W)hen the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear,” Justice John Paul Stevens wrote for the majority.
If a defendant is found to have had ineffective assistance of counsel, the entire conviction is put into jeopardy and could be overturned.
Potential immigration consequences are just some of the many issues criminal defense attorneys must take into consideration when they are advising their clients, said Joel Schumm, professor of law at the Indiana University School of Law-Indianapolis.
Other issues could include a person’s ability to serve in the military, possess a weapon or receive federal financial aid.
“You don’t necessarily know at the time of the plea what your client wants to do in the future,” Schumm said. “I think (the Padilla ruling) is important because it’s the U.S. Supreme Court making it clear that you have to be aware of these things.”
Posted by Marcia Oddi on July 10, 2011 10:43 AM
Posted to Indiana Courts