Intimately Related to the Criminal Process: Examining the Consequences of a Conviction After Padilla v. Kentucky and State v. Sandoval

• Publication year: 2011

§ Spring / Summer 2011-#10. Intimately Related to the Criminal Process: Examining the Consequences of a Conviction After Padilla v. Kentucky and State v. Sandoval

Washington Seattle Journal For Social Justice
Volume 9, No. 2
Spring / Summer 2011

Intimately Related to the Criminal Process: Examining the Consequences of a Conviction After Padilla v. Kentucky and State v. Sandoval

Travis Stearns

I. Introduction

In 2010, the US Supreme Court held in Padilla v. Kentucky that effective assistance of counsel required that a criminal defense attorney provide affirmative advice for noncitizen clients who faced immigration consequences in their pleas or sentences.(fn1) On March 17, 20II, the Washington State Supreme Court issued State v. Sandoval, which analyzed Padilla and found that counsel's advice to his client "fell below an objective standard of reasonableness" when he downplayed the immigration consequences of his client's conviction.(fn2) While both of these cases deal specifically with the immigration advice for noncitizen clients, they provide a framework for analyzing what effective assistance of counsel means for criminal defense attorneys when providing advice on a sentence or plea bargain.

This article will examine not only immigration but also other consequences that result from a criminal conviction in Washington. It will argue that instead of analyzing a consequence as direct or collateral, the court must now determine whether a consequence is intimately related to the criminal process or an integral part of the penalty. When found to be an integral part of the penalty, an attorney must give affirmative advice regarding that consequence. Finally, this article will examine those consequences that are traditionally termed "direct," such as incarceration and supervision, and those that have been considered "collateral," like employment, registration, and driver's license restrictions. This article will look at what it means to give affirmative advice about these consequences and then provide some advice on what competent counsel should do when faced with a particular issue.

Padilla held that an attorney has an obligation to provide affirmative advice on the consequences of a conviction that are "intimately related to the criminal process" and an "integral part of the penalty."(fn3) Sandoval made clear that when a plea involves obvious immigration consequences, it falls below the objective standard of reasonableness for an attorney to not give affirmative advice regarding those consequences to a noncitizen client.(fn4) Both Sandoval and Padilla deal with the issue of advising a noncitizen client on immigration consequences, but neither examined other consequences in detail.(fn5) Importantly, Padilla left open the broader issue of when affirmative advice for other consequences of a conviction is required, recognizing that the Court had never distinguished between direct and collateral consequences in defining the scope of constitutionally "reasonable professional assistance" required under Strickland v. Washington(fn6) In fact, the Court specifically declined to reach the issue of whether the distinction between "direct" and "collateral" was an appropriate way to examine conviction consequences.(fn7)

As a result of Padilla's rule requiring affirmative advice for immigration consequences and the court's decision to not reach the broader issue, state and federal courts are grappling with whether to extend Padilla beyond the issue of immigration consequences.(fn8) While Washington State courts have not yet examined whether Padilla applies to other consequences, other courts extended this rule, including advice regarding post-release commitment hearings,(fn9) loss of pension,(fn10) sex offender registration requirements,(fn11) parole eligibility,(fn12) and eligibility for early release from prison for good behavior.(fn13) In all of these instances, the reviewing courts have extended Padilla beyond immigration and held that effective assistance requires affirmative advice with regard to these important consequences.(fn14)

The commonality in all of these cases is that competent counsel requires an understanding of the potential consequences of a sentence and an obligation to provide affirmative advice with regard to those consequences when it matters to that client.(fn15) Competent representation requires that an attorney discuss what matters to their individual client and then attempt to craft a specific resolution that comports with the client's stated goals.(fn16) only those consequences that impact the individual client should be considered "integral to the penalty."(fn17) As consequences and clients are unique in every legal situation, it is not possible to say which consequences will matter in any particular case. Instead, competent counsel must take the time to consider which consequences are relevant whenever they represent a new client.

II. The Right to Effective Assistance of Counsel

A. Establishing Effective Assistance of Counsel at Sentencing: Strickland v. Washington

In Strickland, the Supreme Court established that the Sixth Amendment of the US Constitution required that an attorney must provide effective assistance of counsel at sentencing, holding that the defendant is entitled to relief where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.(fn18) Strickland established a two-prong test to determine whether a defendant was entitled to withdraw a guilty plea.(fn19) The test requires the defendant to establish that counsel's representation fell "below an objective standard of reasonableness,"(fn20) and that there was a "reasonable probability that, but-for counsel's unprofessional errors, the result of the proceedings would have been different."(fn21)

Washington State courts examined Strickland prior to Padilla with regard to the consequences of a conviction, but courts only applied the Strickland test to direct consequences including incarceration, fines, and criminal history.(fn22) Where a defendant could establish prejudice with respect to direct consequences, Washington courts strictly applied the Strickland test, finding that effective assistance was required by Sixth Amendment of the US Constitution and Article 1, Section 22 of the Washington State Constitution.(fn23) Prior to Sandoval, failure to advise a client on a traditionally termed collateral consequence could not be the basis for ineffective assistance of counsel in Washington.(fn24) It was only where the attorney actually misinformed the client of a consequence that a claim of ineffective assistance of counsel could be made.(fn25)

This analysis resulted in uneven and result-oriented rulings by the court that could be considered inconsistent with each other. For example, In re Isadore held that the failure to advise about community custody could result in a finding of ineffective assistance,(fn26) but State v. Music held that the failure to advise that the parole board could examine criminal history (which might result in a longer sentence) was collateral and not subject to a finding of ineffective assistance.(fn27) Furthermore, Washington State courts excluded immigration advice from being the basis of a claim of ineffective assistance, finding that deportation was collateral to the conviction and could only be the basis for withdrawal of a plea where the client was affirmatively misadvised.(fn28)

B. Washington's Commitment to Effective Assistance of Counsel: Council on Public Defense, RCW 10.101, State v. A.N.J., and CrR3.1

The Washington State Bar Association (WSBA) established the Blue Ribbon Commission on Criminal Defense in 2003 to address concerns about the quality of indigent defense services in Washington.(fn29) As a result of the work done by the commission, the WSBA adopted Indigent Defense Standards in 2007.(fn30) The Indigent Defense standards are based upon standards created by the Washington Defender Association (WDA) that established-among other important principles-parity of pay with prosecutors, maximum caseloads, the requirement of training, and experience levels in order to handle a particular type of case.(fn31) The commitment of the WSBA to improving public defense continues as the Blue Ribbon Commission has now been established as permanent part of the WSBA, known as the Council on Public Defense.(fn32)

The legislature has also shown its commitment to improving public defense.(fn33) RCW I0.I0I.030 requires each county to establish standards for the delivery of public defense services.(fn34) Counties must set standards for compensation, caseload limits, qualifications, supervision, and training, among other qualifications.(fn35) The legislature created this rule because "effective legal representation must be provided for indigent persons . . . consistent with the constitutional requirements of fairness, equal protection, and due process."(fn36) The Washington State Office of Public Defense (OPD), whose mission is "to implement the constitutional and statutory guarantees of counsel and to ensure the efficiency of indigent defense services,"(fn37) administers state funds to improve indigent defense services consistent with RCW I0.I0I.(fn38)

Despite these efforts, problems have persisted with regard to effective assistance, especially for indigent clients.(fn39) In 2004, the Seattle Times ...