A New York intermediate appellate court held that the prejudice inquiry performed as part of a Padilla claim must account for a noncitizen defendant’s desire to remain in the USA when determining whether it would have been rational to turn down a plea offer. People v. Picca, No. 2006-09056, 2010-10696, slip op. (N.Y. App. Div. June 6, 2012) (Skelos, Dickerson, Eng, and Sgroi, JJ.). Judge Skelos wrote the court’s decision.
This case involved an LPR who was convicted of attempted criminal sale of a controlled substance in the third degree in 1997 and again in 2001. Picca, slip op. at 2-3. On direct appeal of the 2001 conviction, he argued that his plea-stage attorney failed to inform him of potential immigration consequences of conviction. His sentencing attorney (a different attorney than the plea-stage lawyer, but also a public defender at the same office) agreed that the plea-stage lawyer, who has since died, did not inform the defendant of these consequences. Picca, slip op. at 6. The defendant and his wife claimed that the defendant would have turned down the plea offer (which resulted in a conviction for immigration purposes and placement in a drug diversion program) in exchange for the possibility of avoiding deportation even if it meant risking more jail time. Picca, slip op. at 4.
If these allegations are true, then the defendant met the first of Strickland v. Washington’s two-pronged requirement for ineffective assistance of counsel: that plea-stage counsel fell below an objective standard of reasonable performance by failing to advise him of the potential immigration consequences of conviction. Picca, slip op. at 7.
Importantly, the court rejected the state’s claim that Padilla is triggered only when the defendant informs the attorney that he’s not a U.S. citizen. “This contention,” the court explained, “is logically flawed, as it presupposes that the defendant understands that his immigration status is relevant to the criminal proceedings.” Picca, slip op. at 7. The court could have added that this contention is also flawed because it presupposes that defendants know their citizenship status. Citizenship law, including the INA’s naturalization provisions, is so complicated that it is not at all unusual for individuals to believe that they are USCs when they’re not or that they are not USCs when they are.
The court then turned to whether plea-stage counsel’s deficient performance prejudiced the defendant. Here the court concluded that the prejudice inquiry must take into account the defendant’s desire to remain in the USA. It is insufficient to merely consider the potential maximum sentence available if convicted after trial versus the sentence offered in the plea. Picca, slip op. at 12.
Referring to a noncitizen defendant’s unique desire to avoid banishment, the court wrote: “Those particular circumstances must then be weighed along with other relevant factors, such as the strength of the People’s evidence, the potential sentence, and the effect of prior convictions. If, for example, an alien has significant ties to his or her country of origin, or has only resided in the United States for a relatively brief period of time, or has no family here, a decision to proceed to trial in lieu of a favorable plea agreement may be irrational in the face of overwhelming evidence of guilt and a potentially lengthy prison sentence.” Picca, slip op. at 11.
Because the defendant had been here for over 30 years and his entire family resides here, however, “[w]e conclude that the defendant’s averments sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational.” Picca, slip op. at 12. This conclusion was particularly striking given the existence of the 1997 conviction that itself is a removable offense, as the court acknowledges. Picca, slip op. at 12.
The appellate court found that the allegations about the lack of advice that the defendant received prior to pleading guilty, if true, and the consequence of being deported was sufficient to merit a hearing where the trial court could weigh everyone’s credibility. Because the trial court failed to conduct such a hearing, vacatur was required. Picca, slip op. at 14.