RI Supreme Ct: No Padilla prejudice b/c could’ve received longer sentence at trial; applies Padilla to expired TPS recipient

The Rhode Island Supreme Court held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), only requires advice that a plea would make a defendant eligible for deportation and no prejudice is shown if the defendant could have received a longer sentence at trial than was actually received by pleading. Neufville v. State, 13 A.3d 607 (RI 2011) (Suttell, Goldberg, Flaherty, Robinson, and Indeglia, JJ.). Justice Goldberg wrote the court’s opinion.

This case involved an individual who pleaded nolo contendere to multiple offenses in May 2004. Neufville, 13 A.3d at 609. Neufville, who was born in Liberia but lived in the United States since being two-and-a-half years old, at one time had TPS but “at the time of the pleas, his visa for temporary-protection status had expired, rendering his immigration status questionable.” Neufville, 13 A.3d at 609-610. This is the only decision I’ve seen to date where the court applies Padilla to someone with expired TPS status—effectively making Neufville out of status unless he had a way of late renewing.

Though the court applied Padilla to Neufville’s claim of ineffective assistance of counsel, it had little difficulty concluding that Padilla does not help Neufville. Importantly, the court adopted this reading of Padilla’s advice requirement: “Counsel is not required to inform their clients that they will be deported, but rather that a defendant’s ‘plea would make [the defendant] eligible for deportation.’” Neufville, 13 A.3d at 614 (quoting Padilla, 130 S. Ct. at 1483).

All that defense counsel is required to do, the Rhode Island court seems to suggest, is explain that a conviction will make deportation available to the federal government; defense counsel is not required to predict whether the federal government will actually initiate removal proceedings and, if they do, whether removal will actually result.

It is unclear to me whether this dictate falls into either of the two levels of advice Padilla identifies: “When the law is not succinct and straightforward…, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear…the duty to give correct advice is equally clear.” Padilla, 130 S. Ct. at 1483.

The court does not explain whether the charges facing Neufville clearly led to deportation or not, the preliminary inquiry that is necessary to determine which level of advice is required. As such, figuring out whether the court’s explanation refers to the general advice requirement (“pending criminal charges may carry a risk of adverse immigration consequences”) or the specific advice requirement (“when the deportation consequence is truly clear…the duty to give correct advice is equally clear”) is nothing more than a guess.

The court placed a great deal of weight on the plea attorney’s testimony that Neufville “was well aware of the potential for deportation” as a result of conversations that the attorney had with Neufville. Neufville, 13 A.3d at 613. In addition, the court relied on the trial judge’s admonishment, in accordance with R.I. Gen. L. § 12-12-22, that a plea “may have immigration consequences…” and Neufville’s admission that he knew “that he probably would be deported upon conviction.” Neufville, 13 A.3d at 613. Accordingly, the court concluded that Neufville’s “trial attorney provided him adequate counsel about the possibility of immigration consequences.” Neufville, 13 A.3d at 614.

Despite not needing to determine whether Neufville suffered prejudice (because it had already determined that Neufville’s attorney did not represent him inadequately), the court nonetheless went on to explain that Neufville was not prejudiced by his attorney’s performance. Relying on its earlier decisions, the state supreme court explained “that when counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice.” Neufville, 13 A.3d at 614 (citing Rodrigues v. State, 985 A.2d 311, 317 (RI 2009)).

Neufville was sentenced to twenty years only 3.5 of which he was required to serve in prison. Had he gone to trial and been convicted he could have faced up to thirty more years (though the court does not specify whether this would have to be served in prison). Consequently, the court was “satisfied that had Neufville proceeded to trial, he ran the risk of receiving a longer sentence than was imposed and therefore has failed to establish prejudice because of his counsel’s alleged ineffective assistance.” Neufville, 13 A.3d at 614.