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