Padilla held retroactive

In People v. Nunez (2d App. Term 12/15/2010), the defendant plead guilty to Criminal Possession of a Controlled Substance 7° in 1997.  Over a decade later, the defendant moved to vacate his judgment on the ground of ineffective assistance of counsel. Specifically, he argued: (1) his attorney provided him with incorrect advice regarding the immigration consequences of pleading guilty; and (2) his attorney had a conflict of interest because he was employed by the same firm previously representing a person arrested with defendant on an unrelated matter. 

In Padilla v. Kentucky, the U.S. Supreme Court held that the Strickland ineffective assistance analysis requires attorneys to inform their clients of immigration consequences resulting from a guilty plea.   Deportation is an integral part of the penalty potentially applying to noncitizens pleading guilty to specified crimes, rendering the accuracy of legal advice critical. 

According to the Appellate Term, Padilla involved an application of well-established “old” rules (ineffective assistance of counsel) to a new set of facts (deportation consequences). “Old” rules are distinguished from “new” rules as new rules render results not dictated by precedent existing at the time the defendant’s conviction became final. Cases involving old rules applied to new factual circumstances are given retroactive effect. The court concluded that Padilla should therefore be applied retroactively. 

The case was reversed and remanded for a factual hearing to determine if, in fact, the defense attorney provided the Defendant with proper immigration advice in connection with the criminal plea.  There was no basis for a hearing on the conflict of interest claim, however. (RB/LC)

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