By Brian Pasquale, Law Clerk
While the Supreme Court does not believe that non-citizens who pleaded guilty without advice from their attorneys that the guilty plea may result in deportation do not have a right to retroactively challenge their conviction, the Massachusetts Supreme Judicial Court does believe so and expressed this in a recent decision (Read the opinion here).
Background: The defendant, a noncitizen, was arrested and charged with one count of possession of cocaine with intent to distribute and one count of a drug violation in a school zone. The defendant pleaded guilty to simple possession of cocaine to avoid the minimum mandatory sentence of two years that results from being found guilty of a drug violation in a school zone. As part of his guilty plea the defendant signed a waiver of rights and an alien rights notice acknowledging that if he was not a citizen of the United States, conviction of or admission to the offense may result in deportation. Subsequent to pleading guilty, the defendant, citing the Supreme Court case of Padilla v. Kentucky, filed a motion to vacate his guilty plea contending that he was denied effective assistance of counsel. During the defendant’s appeal the Supreme Court decided Chaidez v. United States, whereupon on the defendant filed an application for direct review, which was granted.
Analysis: In Padilla, the Supreme Court held that The Sixth Amendment requires a criminal defense attorney to provide accurate analysis regarding the deportation consequences arising from a guilty plea. In Commonwealth v. Clarke, the SJC determined that for retroactivity analysis, Padilla did not announce a new rule and the Sixth Amendment right applied retroactively to cases on collateral review. The Supreme Court, prior to Chaidez, had not ruled on whether Padilla created a new rule. In Chaidez, the Supreme Court concluded that Padilla did in fact create a new rule and as a result the holding in Padilla does not apply retroactively. The Court’s reasoning was that prior to Padilla, the Sixth Amendment did not require counsel to inform their clients of a conviction’s collateral consequences, but Padilla now required that thereby creating a new rule.
When the SJC issued its decision regarding retroactivity in Clarke, the court used the framework provided by the Supreme Court. However since Clarke has been decided, the Supreme Court has greatly expanded its definition of what constitutes a “new” rule, which is at the heart of retroactivity analysis. Under the original analysis, a “new” rule was created if the result was not dictated by precedent. The SJC chose to apply the previous framework and not adopt the new expanded analysis that the Supreme Court applied in Chaidez. Reasoning that it was customary in Massachusetts prior to Padilla for attorneys to warn their clients of position deportation consequences and that the ruling in Padilla simply applied a general standard, the SJC stated that Padilla did not announce a new rule.
The SJC has the ability to adopt the narrower interpretation, providing greater protection to defendants, through the Supreme Court’s decision in Danforth v. Minnesota. In Danforth, the Supreme Court stated that the finality of State convictions is a matter that States should be free to evaluate, and weigh in importance of, when prisoners held in State custody are seeking remedy for a violation of Federal rights by their lower courts.
Aside from the issue of retroactivity, the court also sought to answer the question of whether Art. 12 requires defense counsel to provide defendants with accurate advice concerning the deportation consequences of a guilty plea or conviction at trial. The court concluded that under Art. 12, defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial and failure to do so constitutes behavior that falls measurably below that which might be expected from an ordinary fallible lawyer.
The SJC held that as a matter of Massachusetts law, the Sixth Amendment right articulated in Padilla, was not a “new” rule and therefore defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally Padilla grounds.
This decision was highly anticipated in the legal community after the Chaidez decision was announced because many noncitizens that pleaded guilty without knowing the severe consequences were not certain if they would still be able to challenge their guilty plea. While the case is positive for noncitizens, there is still one major hurdle that they must pass in order to successfully challenge their plea. They must also prove that their attorney provided them with ineffective assistance of counsel. When a defendant asserts that his counsel was ineffective he must show two separate elements, (1) that the behavior of his counsel fell well below that of which would be expected from an ordinary fallible lawyer and (2) that it likely deprived the defendant of a substantial ground of defense. While many who challenge their plea will state that they would have never accepted the plea had they known of the implications, they bear a substantial burden of showing that. As difficult as a challenge may be for a noncitizen who pleaded guilty, the fact that they still have the option to challenge the plea is a much better scenario than if the SJC agreed with the Supreme Court and took this option away.