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Friday, September 14, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

For publication opinions today (1):

In Mark Clarke v. State of Indiana , a 12-page opinion, Judge Friedlander writes:

Mark Clarke appeals from the denial of his petition for post-conviction relief following his conviction for dealing in cocaine as a class B felony. Clarke presents the following issue for review: Did trial counsel render ineffective assistance in failing to advise Clarke with respect to the possibility of deportation in the event he pleaded guilty? We affirm. * * *

As a final matter, we take this opportunity to encourage criminal defense lawyers henceforth to ascertain the citizenship of their clients and to advise them of the implications attending convictions with respect to the risk of deportation. Among other things, such would obviate the need for post-conviction and appellate courts to undertake a “special circumstances” analysis. * * *

The State asks us to focus upon the clause, “the knowledge of the lawyer of the client’s status as an alien” as one of the facts a court should consider when deciding whether the failure to advise constitutes deficient performance. We need not address this question in the present case because the post-conviction court’s decision is affirmable on other grounds. We note, however, that this issue is percolating in other states and the early trend seems to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients. See, e.g., Commonwealth v. Clarke, 949 N.E.2d 892, 905 (Mass. 2011) (“[t]hat the defendant’s counsel failed to ascertain that the defendant was not a United States citizen may be sufficient to satisfy the first prong of the Saferian standard because effective representation requires counsel to gather at least enough personal information to represent him”); State v. Paredez, 101 P.3d 799, 805 (N.M. 2004) (“[w]e hold that criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain”); Salazar v. State, 361 S.W.3d 99, 102 (Tex. App. 2011) (the argument that there was no deficient performance because there was no indication the attorney knew the defendant had less than five years of legal resident status “is not persuasive because the counsel’s duty to give correct legal advice where the consequences of a guilty plea with respect to deportation are clear carries with it the obligation to investigate what the deportation consequences to the client would be given the client’s individual circumstances”); but see State v. Stephens, 265 P.3d 574, 577 (Kan. Ct. App. 2011), review denied (“[t]he Padilla Court did not extend its ruling to obligate defense counsel to correctly predict a client’s probation or prison sentence, nor did the Padilla Court impose upon counsel the duty to investigate the citizenship or immigration status of every client in a criminal case). Judgment affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Mandy Craig v. State of Indiana (NFP)

Myron Markas Cook v. State of Indiana (NFP)

Antonio D. Jones v. State of Indiana (NFP)

Carlos E. Odom v. State of Indiana (NFP)

Posted by Marcia Oddi on September 14, 2012 11:24 AM
Posted to Ind. App.Ct. Decisions