SC Lawyer, May 2011, #4. Direct and Collateral Consequences After.

• Author: By Marco T. Torres

South Carolina BAR Journal

2011.

SC Lawyer, May 2011, #4.

Direct and Collateral Consequences After

South Carolina Lawyer May 2011 Direct and Collateral Consequences After Padilla v. Kentucky By Marco T. Torres Introduction

After the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), South Carolina lawyers who represent non-U.S. citizen criminal defendants have a duty to advise their clients of the immigration consequences of their guilty pleas. If a lawyer chooses to represent a non-U.S. citizen criminal defendant, then that lawyer must now have an understanding of immigration laws or seek the advice of an immigration attorney who can counsel such a client about the possible immigration liabilities of a guilty plea. Padilla clearly shifted deportation out of the realm of a collateral consequence for purposes of post-conviction relief, and it may also have opened the door for other penalties to come under attack, including penalties previously thought of as "collateral," in South Carolina jurisprudence. As discussed below, South Carolina attorneys and courts may now find themselves revisiting the analysis of what constitutes a Sixth Amendment claim of ineffective assistance of counsel.

New duties for criminal defense counsel representing non-U.S. citizen clients

Padilla involved a petitioner's claim of ineffective assistance of counsel. The petitioner, Jose Padilla, was a lawful permanent resident of the United States for more than 40 years who had served in the Vietnam War with honor. Mr. Padilla was charged by the State of Kentucky with distribution of large amounts of marijuana. Id. at 1477. Based upon his long history as lawful resident of the United States and his distinguished military service, Mr. Padilla claimed his counsel advised him prior to entering his plea to the drug charge that there was no need to worry about his immigration status. Id. at 1478. Specifically, Mr. Padilla claimed that his counsel failed to advise him of the immigration consequences of his plea, provided him with erroneous information, and that he relied on his counsel's erroneous advice when he pleaded guilty to the drug charge that subjected him to deportation from the United States. Id.

In reviewing Mr. Padilla's claim of ineffective assistance of counsel, the Supreme Court applied the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, the Supreme Court addressed the issue of whether Mr. Padilla's counsel's representation "fell below an objective standard of reasonableness." Padilla, 130 S. Ct. at 1482 (citing Strickland, 466 U.S. at 688). Second, the Supreme Court asked whether "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. Applying its Strickland analysis to Mr. Padilla's claim, the Supreme Court held that counsel had a duty to inform her client of the immigration consequences of his plea. Id. at 1486. Noting its longstanding Sixth Amendment precedents and the seriousness of deportation as a consequence of a criminal plea, the Court held that "constitutionally competent counsel would have advised [Mr. Padilla] that his conviction for drug distribution made...