Fla Supreme Ct: Padilla not retroactive; admonishment doesn’t cure bad advice

The Florida Supreme Court held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively and that a trial court’s admonishment to a criminal defendant about the possible immigration repercussions of conviction doesn’t necessarily cure a defense attorney’s deficient performance. Hernandez v. State, No. SC 11-941 & SC 11-1357, slip op. (Fla. Nov. 21, 2012) (Polston, Lewis, Quince, Canady, Labarga, and Perry, JJ.; Pariente concurs).

The court began by noting, without explanation, that Hernández’s conviction for sale of a controlled substance constitutes a controlled substances offense and drug trafficking type of aggravated felony. Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 8. As such, it was clear to the court that removal was presumptively mandatory, thus Hernández’s plea-stage attorney was required to have advised him of that. Because the attorney only told Hernández “that a plea could/may affect [Hernandez’s] immigration status,” the attorney did not do as required by Padilla. Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 9. Consequently, the attorney provided deficient performance.

Moving onto the ineffective assistance of counsel’s prejudice prong, the court rejected the state’s argument that the defense attorney’s deficient performance was cured by the trial court’s warning, pursuant to a state rule of criminal procedure, Fla. Rule of Crim. Proc. 3.172(c)(8), that pleading guilty or nolo contendere “may subject him or her to deportation.” Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 9. The admonishment doesn’t cure the defense attorney’s deficiency, the court explained, because its warning is more “equivocal” than Padilla requires “[w]here deportation consequences are ‘truly clear.’” Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 10.

Having determined that Hernández had a viable Padilla claim, the court then turned to whether Padilla even applies to him given that his conviction long preceded the Supreme Court’s decision. The court decided that it does not.

Under Florida law, a criminal procedure rule applies only prospectively unless it “‘(a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.’” Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 11 (quoting Chandler v. Crosby, 916 So. 2d 728, 729 (Fla. 2005)). Clearly Padilla meets the first two requirements so the only question before the court was whether it’s “fundamental,” which Chandler explained means it “places beyond the authority of the state the power to regulate certain conduct or impose certain penalties or when the rule is of sufficient magnitude to necessitate retroactive application.” Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 12 (Chandler, 916 So. at 729). The second option has somewhat of a circular bent since it seems to define a rule of criminal procedure as fundamental when it is sufficiently important to merit retroactive application. The court didn’t see it that way, however.

Instead, it proceeded to explore whether Padilla is of sufficient magnitude to merit retroactive application, a three-factor assessment that considers: “(a) the purpose to be served by the new rule; (b) the extent of the reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.” Hernandez, No. SC 11-941 & SC 11-1357, slip op. at 12. None of these factors, the court concluded, were met. Accordingly, the court concluded that Padilla doesn’t apply retroactively to Florida convictions.

Without question this is tough news for noncitizens with Florida convictions. DHS’s emphasis on targeting “criminal aliens,” including folks with old convictions, suggests that many more people will find themselves in removal proceedings due to convictions that became final long before Padilla was announced.

The saving grace for defendants with convictions from other jurisdictions is that Florida uses a different retroactivity standard from the federal courts and the many states that have adopted the federal standard announced in Teague v. Lane, 489 U.S. 288 (1989). Of course, we’ll see what the U.S. Supreme Court decides about retroactivity under Teague when it issues its decision in Chaidez v. United States, No. 11-820 this winter or spring (an online symposium containing detailed analyses of Chaidez is available here. Michael Vastine, an immigration law professor at St. Thomas University, argued Hernandez and contributed to the Chaidez symposium.