Padilla v. Kentucky: It’s impact on Criminal & Immigration Law

In 2010, the court held in Padilla v. Kentucky that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Therefore if your defense attorney did not advise you of the immigration consequences of your plea, the disposition could be vacated. The problem is that the Supreme Court held that the new rule in Padilla should not apply retroactively to criminal convictions before March 2010.

The good news is that the Massachusetts Supreme Judicial Court didn’t like that, so in Commonwealth v. Clarke, the court held that Padilla v. Kentucky applies retroactively to guilty pleas entered after April 1, 1997. If Padilla applies to you, you still have to prove ineffective assistance of counsel.

There is a two prong test to whether there was an ineffective assistance of counsel. The first prong is found in Commonwealth v. Saferian and states “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.”

The second prong is that the consequence of counsel’s serious incompetency must be prejudicial. In Clarke they define prejudice as “a ‘reasonable probability’ that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Therefore in order to prove ineffective assistance of counsel you have to prove that your lawyer didn’t act or advise you as a normal lawyer should AND that your criminal proceeding results would have been different if you had received proper advice.

Padilla was significant, because now non-citizens must be advised of immigration consequences if they are in criminal proceedings, but in order to get your case vacated it may still be a long road ahead!

If you have any questions about whether Padilla applies to your current situation, please call our office at 508-438-1198.

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

#criminallaw #immigration #padilla #retroactive #clarke

Dating in the Internet Age: Catfishing and Statutory Rape

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In the new millenium, meeting a significant other is no longer 2 consenting adults at a bar or night club flirting; dating is not a set up by mutual friends.  Most dating relationships are a matter of swipe left or right on Tinder;  answer 1000 questions on Eharmony; or clicking on interesting profiles and messaging back and forth on Plenty of Fish.

When you meet a prospective significant other on the internet, there are so many unknowns.  Because the circle of possible mates has expanded by a million, there is no way to knoow for sure you are getting what you are looking for.

A large danger of online dating is catfishing.  Catfishing occurs when someone is untruthful about their identity in their online profile.  This can include lies about gender, age, appearance or other characteristics.

From a legal prospective, lies about age can be extremely dangerous to the other party.  Many of the websites require participants to be a certain age and to check a box that they are 18 or to enter a birthdate, however, there are no safeguards in place to ensure that the parties are actually over the age of 18.

In Massachusetts, mistake of age of your sexual partner is not a defense to a charge of statutory rape, even if that mistake is reasonable. If the child claims to be 17 years old, and produces a drivers license indicating they are in fact 17 years old, it is not a defense to statutory rape if that child is in fact 15 years old.   (Commonwealth v. Miller, 432 N.E.2d 463 (Mass. 1982).)

Criminal charges can result when the parties in the above scenerio engage in sexting with one another.  Sending or receiving or forwarding sexually explicit messages, photos or images to a person under the age of 18 is a crime in Massachusetts.  It is illegal for ANYONE to knowingly send out or desseminte pictures  of a person under 18 in the state of nudity or engaged in a sexual act.  This includes the act of the child sending out the lewd pictures, which can actually result in felony charges being filed AGAINST the child taking the pictures and sending them out.  In the same vein,  mere possession of these photos (without further dissemination) is also a felony, and can result in charges to anyone that knowingly possesses these photos, even if they were not solicited.

With internet dating becoming predonimant, the danger of children posing as adults on social networks and on dating websites has become a growing problem.  A lack in adult supervision with internet use, and growing popularity of types apps and websites make it a clear danger to anyone who is actively looking to date.  If you are involved in internet dating, do your homework.  Make sure your partner is who they claim to be before engaging in sexual conduct.  Make sure your partner is of age before engaging in sexting.

If you find yourself in a situation where you have been catfished and need legal advice, contact Broadbent & Taylor at (508) 438-1198 for a consultation.

THIS BLOG WAS WRITTEN BY ATTORNEY KELLY BROADBENT.  IT IS NOT INTENDED AS LEGAL ADVICE AND DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP.

#CRIMINALLAWYER #MASSACHUSETTS #catfish

 

 

CWOF? Pre-Trial Probation?

If you have a criminal matter and you are thinking about a plea, you have several options, including asking for a CWOF or Pre-Trial Probation, but what is a CWOF and what is Pre-Trial probation and what is the difference between the two terms? Read on.

A CWOF stands for “Continuance without a Finding.” A CWOF is a determination by the court that there is sufficient evidence against the defendant, but the court refrains from entering the ‘guilty’ finding. The CWOF is a final adjudication, but the defendant avoids having the ‘guilty’ on his/her record. The court will continue the case for a certain amount of time, and as long as the defendant adheres to certain conditions, the criminal matter is dismissed. If the defendant violates any of the conditions, the CWOF may be revoked and a guilty finding may be entered, which may include jail time.

Pre-Trial Probation is different than a CWOF because you do not have to admit that there is sufficient evidence against you, and if you violate pre-trial probation you are not found guilty, but your case returns to the court and goes through the process once again.

If you have any questions or find yourself in a criminal conundrum please call our office!

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

 

#cwof #pretrialprobation #criminal

A Warrant? Am I Going To Jail?

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If you do not attend a criminal proceeding, Massachusetts Courts will issue a warrant for your arrest.

Most envision a person with a warrant on the run from the law, hiding out, keeping a low profile.  Sometimes, this is actually the case, where a criminal defendant purposely fled after the arraignment to avoid facing a likely punishment.

A different scenario occurs when someone mixes up a court date, and is not present on a scheduled date.

A third scenerio occurs in situations where a summons for a show cause or arraignment was sent out, however the defendant never received the summons.  This occurs frequently in criminal motor vehicle cases where the address was incorrect with the registry or the person moving between receiving a criminal citation and the date for the hearing getting mailed out.

If a warrant issues, typically, the Registry of Motor Vehicles will suspend your license.  You will usually receive a notice from the RMV and be prompted to clear the warrant.  If an out of state driver receives the warrant, it may not initially suspend a license but eventually, the home state will discover the warrant and prevent the driver from renewing the license. 

A large number of warrants that we deal with at Broadbent & Taylor involve criminal motor vehicle summonses from 15-20 years ago that never reached the defendant.  The defendant learns of the outstanding criminal charges when they are told they are not able to renew their driver’s license.

If you discover that you have an outstanding warrant (or if you know you have one and want to clear it up), it is smart to first consult an attorney.  A court will allow you to walk in to clear up the warrant, but depending on the charge and the circumstances behind the missed date, the court may revoke bail, or order bail to let you go free.  An attorney is key to trying to resolve the old charges in the most favorable manner.

If you have an outstanding warrant in Massachusetts that you are looking to clear up, contact Broadbent & Taylor at (508)438-1198 to discuss the options. 

THIS BLOG IS NOT LEGAL ADVICE. IT IS NOT MEANT TO FORM AN ATTORNEY CLIENT RELATIONSHIP

#CRIMINALLAWYER #MASSACHUSETTS #WARRANT #SUSPENDEDLICENSE