Supreme Judicial Court (June 17, 2011)
The holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) applies retroactively to criminal convictions obtained after the effective date (April 1, 1997) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
On February 2, 2005, the defendant pleaded guilty to possession of a class B substance with intent to distribute, possession of a class D substance with intent to distribute, and underage possession of liquor. On December 15, 2009, the United States Department of Homeland Security informed the defendant that he was subject to deportation due to the 2005 convictions. The defendant filed a motion for a new trial seeking to withdraw his guilty pleas on the ground that they were not knowing and voluntary; that motion was denied.
On April 14, 2010, the defendant filed a second motion for a new trial arguing ineffective assistance of counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In Padilla, the U.S. Supreme Court held that defense counsel's failure to inform a client that his guilty plea likely would result in deportation constituted ineffective assistance of counsel. Id. at 1483. In support of his motion, the defendant filed an affidavit from the attorney who represented him at the plea hearing. In her affidavit, the attorney declared that she was unaware that the defendant was not a United States citizen, and that she had no memory of discussing any immigration consequences. The defendant also filed an affidavit stating that he was not advised about the potential for deportation.
The defendant's case docket sheet was stamped "Deportation Warning Given," and the court file contains a plea form, signed by the defendant, which states "I understand that if I am not a citizen of the United States, conviction of this offense may have the consequences of deportation…." The judge also signed the tender of plea form which certifies that "the defendant was informed and advised that if he or she is not a citizen of the United States, a conviction of the offense with which he or she is charged may have the consequence of deportation." Based on this evidence, the judge denied the defendant's second motion for a new trial.
The defendant appealed the denial of the motion for new trial, and the Supreme Judicial Court transferred the case from the Appeals Court. On appeal, the defendant argued that he was deprived of his Sixth Amendment right to effective assistance of counsel under Padilla.
The Padilla decision came after the defendant's convictions were final. The Supreme Court articulated the retroactive application of constitutional decisions in Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Court held that a "'new' constitutional rule of criminal law does not apply on collateral review to convictions that were final before the new rule was announced." Id. at 301.
In this case, the Commonwealth argued that the rule announced in Padilla was a "new" rule because it was not "dictated" by precedent. The Court reviewed the Padilla decision, as well as the case upon which Padilla relied, Strickland v. Washington, 466 U.S. 668 (1984). After a thorough examination of case law, the Court concluded that Padilla is not a "new rule," and instead found that Padilla is merely an application of Strickland. "In sum, the opinion in Padilla relies primarily on citation to Strickland itself; Strickland controls ineffective assistance claims by providing a broad rule of reasonableness grounded in professional norms and applied with regard to the factual circumstances of each case." "This is the definitive application of an established constitutional standard on a case-by-case basis, incorporating evolving professional norms (on which the standard relies) to new facts. It is not the creation of a new constitutional rule."
Ineffective Assistance of Counsel
The Massachusetts standard for ineffective assistance of counsel is articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The SJC has held that satisfying the Saferian standard necessarily satisfies Strickland. Under the Saferian test for ineffective assistance of counsel the court must determine "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 - and, if that is found, then typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Saferian, supra.
In this case, the defendant satisfied the first prong of Saferian - he filed an affidavit from counsel indicating that she was unaware of the defendant's immigration status and that she has no recollection of discussing immigration issues or consequences with him during his plea. The second prong of the Saferian test - that the consequence of counsel's incompetency must be prejudicial - could not be satisfied in this case. The record demonstrated that the defendant received oral and written warnings of the potential for deportation.
"[A]lthough we hold that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), is to be retroactively applied to convictions obtained on or after April 1, 1997, the defendant here has failed to demonstrate that, but for his counsel's failure to advise him of the immigration consequences of his plea, there is a reasonable probability that the outcome of the proceeding would have been different." The Court affirmed the order denying the motion for a new trial.