Massachusetts Extends Padilla Protections for Noncitizen Criminal Defendants to Include Trial Convictions

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In Commonwealth v. Marinho, although the Massachusetts Supreme Judicial Court denied a non-citizen defendant’s request for a new trial, it significantly increased a non-citizen defendant’s protection under the Sixth Amendment.

Facts:

On February 17, 2010, the defendant, Allesandro Marinho was convicted of assault and battery causing serious bodily injury. He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.  The defendant was not a United States citizen and was deported after being convicted.

The defendant filed a motion for a new trial alleging ineffective assistance of counsel, claiming that his lawyer failed to (1) advise him of the immigration consequences of an assault and battery conviction, (2) explore a plea resolution, and (3) advocate for a sentence that might have mitigated such immigration consequences.

Holding:

In order for a defendant to successfully claim ineffective assistance of counsel, a two-prong test, known as the Saferian test, must be satisfied.  First, the defendant must show serious incompetency, inefficiency, or inattention of counsel– behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.  If that is found, the defendant must then show that the claimed ineffective assistance has deprived him of an otherwise available, substantial ground of defense.[1]

As the number of deportable offenses has continued to increase in recent history, the United States Supreme Court recently addressed the issue of a noncitizen defendant’s Sixth Amendment rights with respect to assistance of counsel.[2]  The Supreme Court, in Padilla v. Kentucky, held that constitutionally competent counsel would have advised the defendant that a guilty plea for drug distribution made him subject to automatic deportation.  The Court’s reasoning focused mainly on the landscape of federal immigration law and the significant changes that have occurred.

“These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  The importance of accurate legal advice for noncitizens accused of crimes has never been more important.  These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”[3]

In light of Padilla, the SJC held that defense counsel is required to inform a non-citizen client that a conviction at trial may carry immigration consequences.  In announcing their holding on this issue, the SJC expanded on Padilla and now provides additional protection to non-citizen defendants.  Thus, as defense counsel was required to inform the defendant of any consequences resulting from a conviction, the first prong of the Saferian test was not met.

The SJC also stated defense counsel’s failure to discuss plea resolution with the defendant and failure to advocate for a lesser sentence also failed the first prong of the Saferian test.

After concluding that defense counsel’s performance fell below the standard set out in Saferian, the SJC then had to determine whether the second prong was met; whether the defendant was prejudiced by the ineffectiveness of defense counsel.  The SJC determined that while satisfying the first prong, the defendant failed to provide sufficient proof of prejudice and therefore, the defendant is not entitled to a new trial.

While defense counsel’s failure to discuss the possibility of a plea with the defendant falls below the level of professionalism for attorneys, in order to show prejudice the defendant must:

“Demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.  Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution cancelling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”[4]

The SJC reasoned that the evidence provided by the defendant only establishes that defense counsel failed to engage in plea negotiation or discussing that option with the defendant and there is no evidence to suggest that the prosecutor would have offered the defendant a plea deal.  Finally, the SJC held that had the defendant been given a lesser sentence, there is nothing to suggest that it would have resulted in the defendant “flying under the radar” and avoiding deportation.


[1] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

[2] Padilla v. Kentucky, 130 S.Ct. 1473, 1476 (2010).

[3] Id. at 1480.

[4] Missouri v. Frye, 132 S.Ct. 1399, 1410 (2012).

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