Constitutional Law

Case with implications for DV misdemeanor pleas

Padilla v. Kentucky, handed down this morning.

Defendant was a lawful permanent resident, and pleaded guilty to transporting a large load of marihuana. His attorney advised him not to worry about deportation, and he pled guilty. When he discovered that deportation was in fact inevitable, he challenged the plea on ineffective assistance of counsel bases, and a majority of the Court agrees. The opinion points out that various immigration reforms have changed the deportation consequence from something of a concern (the sentencing judge could recommend against it, and that was virtually binding) to an inevitability. The majority thus find that deportation is a key part of the penalty, and a person pleading out must be informed of it. (Alito and Roberts concur, on the basis that the attorney affirmatively misled the defendant; Scalia and Thomas dissent, arguing that counsel need not advise a defendant regarding collateral consequences of a plea).

Thoughts: (1) This would likely extend to misdemeanor DV pleas, where the defendant was not informed of the plea's effect on firearm possession, now that Heller establishes that as a constitutional right; (2) it may also have a bearing on pre-Lautenburg pleas. Defendants there could not be informed of the consequences, because there were none at the time of the plea, but this suggests that application to pre-enactment pleas is indeed an ex post facto increase in the penalty.

Full post as published by Of Arms and the Law on March 31, 2010 (boomark / email).