A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims

Fordham Law Review, Sep 2017

The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so–called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions. In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Lower courts have differed on whether to interpret Padilla as effecting a change to the collateral consequences rule, and more specifically, how to define direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla.

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A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims

Counsel Claims Joanna Rosenberg 0 0 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Joanna Rosenberg, A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims, 82 Fordham L. Rev. 1407 (2013). Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss3/7 - Article 7 Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Joanna Rosenberg* The Sixth Amendment entitles a criminal defendant to effective assistance of counsel when deciding whether to plead guilty. Defense counsel, therefore, must ensure that his client understands the direct consequences of the plea: the nature of the criminal charge and the sentence. However, pursuant to the traditional collateral consequences rule employed by most courts, counsel has no Sixth Amendment obligation to warn that criminal defendant of so-called collateral consequences, such as mandatory sex offender registration, civil commitment, or ineligibility for parole. Prior to 2010, deportation was also considered a collateral consequence of a guilty plea in most jurisdictions. In Padilla v. Kentucky, the U.S. Supreme Court made deportation an exception to the collateral consequences rule, and held for the first time that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Lower courts have differed on whether to interpret Padilla as effecting a change to the collateral consequences rule, and more specifically, how to define direct consequences, in the context of an ineffective assistance of counsel claim. This Note examines the conflict, and concludes that courts should redefine the scope of direct consequences in light of the factors considered by the Court in Padilla. * J.D. Candidate, 2014, Fordham University School of Law; B.A., 2009, Dartmouth College. I would like to thank Professor Joseph Landau for his insight and guidance. I am also grateful to my Mom, my Dad, and my brother Marc for their endless support and encouragement. TABLE OF CONTENTS 2013] 2. The Interpretive Gloss: Innovator Courts’ Assessment of Padilla......................................................................... 1437 III. RESHAPING THE DEFINITION OF DIRECT CONSEQUENCES IN LIGHT OF THE SUPREME COURT’S DECISION IN PADILLA V. KENTUCKY.. 1439 INTRODUCTION Imagine that you are a noncitizen charged with a criminal offense. The prosecution presents a plea bargain: you plead guilty in exchange for a reduced prison sentence. Your case does not look promising, and the plea bargain seems like a great offer. But is there a catch? An overwhelming number of criminal offenses result in the deportation of noncitizens like you Would you want your lawyer to tell you if accepting the guilty plea would cause you to be deported? Almost certainly yes. But does your lawyer have a constitutional duty to do this? Until a few years ago, the answer was probably not. However, in Padilla v. Kentucky,1 the U.S. Supreme Court held that an attorney’s failure to warn his client that pleading guilty to a criminal drug charge would result in his deportation constituted ineffective assistance of counsel in violation of the Sixth Amendment.2 Recognizing the severity of a deportation consequence, the Court determined that Padilla’s counsel failed to give him the constitutionally adequate assistance required under the Sixth Amendment’s Counsel Clause.3 This decision by the Padilla Court has the potential to effect a sea change in ineffective assistance of counsel jurisprudence. The distinction between the direct and collateral consequences of a guilty plea runs throughout both state and federal jurisprudence.4 Pursuant to the collateral consequences rule, attorneys are constitutionally required to warn their clients about direct consequences of a guilty plea, which typically 1. 559 U.S. 356 ( 2010 ). 2. Id. at 360. 3. Id. at 373–75. 4. Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 706–08 (2002). relate to the nature of the criminal charge and sentencing.5 By contrast, attorneys are not required to warn their clients about collateral consequences, which are usually noncriminal in nature.6 Deportation, the consequence at issue in Padilla, was traditionally considered a collateral consequence of a guilty plea because it is a civil, not a criminal, consequence.7 Therefore, prior to Padilla, counsel was not constitutionally required to advise a criminal defendant of the deportation consequences of a guilty plea in most jurisdictions. However, the Padilla Court cr (...truncated)


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Joanna Rosenberg. A Game Changer? The Impact of Padilla v. Kentucky on the Collateral Consequences Rule and Ineffective Assistance of Counsel Claims, Fordham Law Review, 2018, Volume 82, Issue 3,