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Lincoln Award Winner - Criminal Law
Collateral Consequence Considerations for Illinois Practitioners after Padilla v. Kentucky
In Padilla v. Kentucky, the U.S. Supreme Court found counsel was ineffective for failing to advise his client of near-mandatory deportation that would result from entering a plea of guilty. This article summarizes lower courts' interpretations and extensions of Padilla and lists relevant resources helpful to Illinois criminal practitioners.
In 2010 the Supreme Court concluded in Padilla v. Kentucky1 that an attorney provided ineffective assistance of counsel when he failed to advise his client that deportation would likely result from his guilty plea. Prior to Padilla, courts distinguished between direct and collateral consequences of guilty pleas. Illinois and other courts considered deportation a collateral consequence of a guilty plea and thus outside the purview of the Sixth Amendment's guarantee of effective assistance of counsel.
Since Padilla, some courts have found counsel ineffective for failing to advise clients of consequences traditionally viewed as collateral. Other courts have limited Padilla to deportation. Some courts have also suggested that the traditional direct/collateral consequence analysis does not survive Padilla.
Through a review of courts' interpretations of Padilla, this article provides guidance to Illinois practitioners advising their clients of the consequences of a guilty plea and reviewing a client's case for post-conviction relief. We begin with a review of the Padilla case.
Overview of Padilla
Jose Padilla was a legal permanent resident for over 40 years when he was charged with drug distribution in Kentucky.2 Upon his plea of guilty, he was subject to near-automatic deportation. In a postconviction proceeding, Padilla alleged his counsel was ineffective for not advising him of his likely deportation and incorrectly advising him that he need not "'worry about immigration status since he had been in the country so long.'"3 The Kentucky Supreme Court found Padilla's counsel's affirmative misadvice did not constitute ineffective assistance because deportation was a collateral consequence of his conviction.
When the case reached the United States Supreme Court, that court noted it had never distinguished between collateral and direct consequences in its Strickland analyses.4 However, "because of the unique nature of deportation,"5 the Court deemed it unnecessary to consider the direct/collateral distinction. Deportation, said the Court, is "enmeshed" with criminal convictions and is "nearly an automatic result for a broad class of noncitizen offenders."6
The Court analyzed Padilla's claim under Strickland, first determining "whether counsel's representation 'fell below an objective standard of reasonableness.'"7 Professional norms and prior Supreme Court decisions recognized the importance of properly advising a client of deportation risks.
Further, Padilla's immigration consequences were clear from a reading of the removal statute. "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."8 Padilla sufficiently alleged the first prong of Strickland. The Court left the second prong, prejudice, for the Kentucky courts.
Padilla did not address consequences other than deportation and did not say whether the direct/collateral analysis survived. By default, those tasks were left to the state courts and the lower federal courts. This article will next consider how Illinois courts have applied Padilla.
As of the time this article went to press, Illinois courts have addressed Padilla in the context of civil commitment and subsequent federal sentencing enhancements. In People v. Hughes, the Illinois Supreme Court found counsel has a "minimal duty" to advise a client pleading guilty to an offense eligible for mandatory assessment of civil commitment that he may be civilly committed at the expiration of his prison term.9 The court explained that, like deportation, assessment for civil commitment is "enmeshed" in the criminal process because it is mandatory under the Sexually Violent Persons Commitment Act upon conviction of a triggering offense and will toll the defendant's mandatory supervised release.10
The court also relied on the standards of the legal community, including those from the America Bar Association ("ABA") and the National Legal Aid and Defender Association ("NLADA"), to determine the reasonableness of counsel's representation. Nonetheless, the court ultimately found the defendant could not establish Strickland's prejudice prong and did not allow defendant to withdraw his plea.
One Illinois appellate district has addressed Padilla in the context of a future federal sentencing enhancement. In People v. Johnston, an unpublished fifth district opinion, the court concluded counsel was not ineffective where counsel failed to advise the client that a guilty plea would lead to a sentencing enhancement for a subsequent federal conviction.11
Johnston pled guilty to a state burglary charge and was sentenced to six years' imprisonment in 1999. Thereafter, in 2007, Johnston pled guilty to the federal charge of being a felon in possession of a firearm. The federal court enhanced Johnston's sentence by 180 months based on his state burglary conviction. The fifth district concluded Johnston was not entitled to relief because his enhanced federal sentence "was not an automatic consequence of this guilty plea, and any risk that the conviction could result in a more sever[e] sentence for any future crimes was entirely and necessarily contingent on Johnston's decision to commit those future crimes."12
Illinois courts have yet to consider whether Padilla applies to consequences other than deportation, civil commitment, or a future federal sentencing enhancement. This article will now consider other jurisdictions' applications of Padilla that may be persuasive to Illinois courts.
Federal and other states
Other jurisdictions disagree over the reach of Padilla. Some courts have concluded that Padilla is limited to the deportation context. Others, however, have extended Padilla to cover other consequences traditionally classified as collateral. Courts have also struggled in determining whether the direct/collateral analysis survives Padilla. The following cases consider these uncertain implications of Padilla.
Future federal sentencing enhancement. Like Illinois' fifth district in Johnston, the federal seventh circuit, in United States v. Reeves, concluded counsel was not ineffective for failing to advise a client that a conviction may be used to enhance a future sentence.13 The government sought to enhance Reeves' federal sentence pursuant to 21 U.S.C. § 851 on the basis of a prior state felony conviction.14 Reeves argued the government could not use the state conviction to enhance his sentence because the state conviction was invalid. Specifically, Reeves claimed his state counsel was ineffective for failing to advise him that the state sentence could be used to enhance a future federal sentence.
Unlike Hughes, in which the Illinois Supreme Court extended Padilla to civil commitment, the seventh circuit found that Padilla is specific to the realm of deportation because it "is rife with indications that the Supreme Court meant to limit its scope to the context of deportation only."15 Based on this "limited scope of Padilla," the seventh circuit applied the direct/collateral consequence test and declined to find that counsel must advise a client of sentencing enhancements for potential future convictions. The court noted "'deportation is a consequence of this [the instant] conviction; enhancement depends on the defendant's deciding to commit future crimes.'"16
Civil commitment. Unlike the seventh circuit, the eleventh circuit interpreted Padilla to extend beyond the deportation context in Bauder v Department of Corrections.17 Bauder pled guilty to aggravated stalking in a Florida state court, an offense which made him eligible for civil commitment. Bauder's trial attorney, however, affirmatively represented to Bauder that he would not face civil commitment.
Even though the Florida's civil commitment law was unclear at the time of Bauder's guilty plea, the court found Bauder's counsel should have advised him of the potential consequences. The court stressed that counsel gave affirmative misadvice in concluding counsel was ineffective.
Pension forfeiture. Pennsylvania state courts have considered Padilla in the context of pension forfeiture. The state courts' analyses demonstrate the struggles courts have in applying Padilla's holding.18
In Commonwealth v. Abraham, Abraham pled guilty to corruption of minors and indecent assault in a Pennsylvania state court. In a post-conviction proceeding, he alleged counsel was ineffective for failing to inform him that a plea of guilty would result in the loss of his teacher's pension.
The state appellate court declined to apply the direct/collateral consequence analysis, noting it was unclear whether that analysis survived Padilla. Instead, following the Padilla analysis, the appellate court concluded that pension loss was like deportation and "intimately connected to the criminal process" because pension loss was automatic, punitive, and triggered only by criminal behavior.19
Accordingly, the appellate court concluded Abraham's counsel was ineffective for failing to warn Abraham that he would lose his pension. The court noted the result would be the same under the direct/collateral analysis.
The appellate court's extension of Padilla to pension forfeiture was short-lived. The Pennsylvania Supreme Court determined that Padilla did not foreclose the application of the direct/collateral analysis and Abraham's pension forfeiture was a collateral consequence.20 As such, the court concluded counsel was not ineffective for failing to advise Abraham of the impending loss of his pension.
Sex offender registration. In Taylor v. State, a Georgia state appellate court concluded counsel is constitutionally required to advise a client of sex offender registration requirements resulting from a guilty plea.21 Taylor pled guilty to two counts of child molestation in a Georgia state court. As a consequence of that plea, he was required to register as a sex offender.
Like the appellate court in Abraham, the Taylor court indicated it was not clear whether the direct/collateral analysis survived Padilla. Considering the factors in Padilla, the court concluded that "even if registration as a sex offender is a collateral consequence of a guilty plea, the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance."22
In reaching its decision, the court considered the ABA Standards for Criminal Justice, which list sex offender registration as a collateral consequence of which defense counsel should advise their clients before entering a guilty plea. The court also noted that sex offender registration, like deportation, is a "drastic measure" and "'intimately related to the criminal process" in that it is an "'automatic result' following certain criminal convictions."23
Parole eligibility. Some jurisdictions, including Missouri, Kentucky, and Alabama, have considered Padilla's impact on affirmative misadvice or failure to advise a client regarding her eligibility for parole.
In Webb v. State, the Missouri Supreme Court found counsel could be ineffective for misadvising a client about the time in which the client would be eligible for parole.24 Webb's plea of guilty to voluntary manslaughter required him to serve 85 percent of his sentence before becoming eligible for parole. Counsel, however, advised him that the involuntary manslaughter conviction would not trigger the 85 percent rule (10.2 years) and he would be eligible for parole after only serving 40 percent (4.8 years) of his sentence.
The majority, without citing to Padilla, found Webb was entitled to an evidentiary hearing based on counsel's affirmative misinformation. In a concurring opinion, Justice Wolff analyzed the matter under Padilla, noting that the Supreme Court did not intend to limit Padilla to affirmative misadvice and suggesting that Padilla applies to consequences beyond deportation.
The Kentucky Supreme Court has also found affirmative misadvice about parole eligibility may constitute ineffective assistance of counsel.25 In Commonwealth v. Pridham, the defendant pleaded guilty to drug charges and the court sentenced him to 30 years. Counsel advised Pridham he would be eligible for parole after six years, but, in reality, he actually would not be eligible for parole until after 20 years pursuant to Kentucky's violent offender statute.
The court found extended parole ineligibility to be comparable to deportation because it was punitive, easily determined from a reading of the statute, and "a prominent fixture of [Kentucky's] criminal law."26 The court specifically rejected the Commonwealth's argument that Padilla was limited to deportation and remanded the case to the trial court to determine whether Pridham was prejudiced by his counsel's misadvice.
An Alabama state court found counsel ineffective for failing to provide any advice regarding parole ineligibility.27 Defendant Frost's plea of guilty to sodomy and sexual abuse of a child less than 12 years made him ineligible for parole under Alabama law. In his post-conviction petition, Frost alleged his guilty plea was involuntary because counsel failed to advise him he would be ineligible for parole.
The Frost court employed the direct/collateral analysis and found that parole eligibility was a direct consequence of a guilty plea. The court also noted that, similar to the deportation consequences in Padilla, trial counsel could have easily determined Frost's parole ineligibility by a simple reading of the statute. After finding Frost established prejudice, he satisfied the Strickland test.
Good time credit. In Stith v. State, an Alabama appellate court concluded counsel may be ineffective for failing to advise the defendant that the offense to which he was pleading guilty made him ineligible to earn good time credit.28
Stith pleaded guilty to first-degree sodomy and the court sentenced him to 10 years imprisonment. Because first-degree sodomy is a Class A felony, Alabama law rendered Stith ineligible to earn good time credit while in prison.
During plea negotiations, the state offered a deal wherein Stith would plead guilty to first-degree sodomy and receive a 20-year prison term resulting in Stith only serving five years in prison. Under the proposed 20-year sentence, Stith would have served less time in prison than under the "straight" 10-year sentence to which he pleaded guilty. It was clear from the record that Stith believed he would serve less time under the "straight" 10-year sentence because he thought he would be eligible for good time credit.
Stith's counsel failed to advise Stith of the resulting time he would actually serve and simply advised Stith that the Alabama Department of Corrections would calculate good time. Noting that Stith's ineligibility for good conduct was apparent from a plain reading of the statute, the Alabama court found that, regardless of whether this action was classified as an omission or misrepresentation, Stith's counsel failed to provide effective assistance.
Guidance for practitioners
As Padilla and the foregoing cases demonstrate, lawyers must have a working knowledge of the consequences that will result from their client's plea to provide constitutionally effective counsel. Even if the failure to advise a client of a certain consequence does not constitute ineffective assistance of counsel under Padilla, professional standards require advocates to have knowledge of the consequences of clients' pleas.29
While the number of consequences flowing from a conviction may seem overwhelming, organizations such as the ABA and NLADA provide guidance. These standards and guides are particularly relevant because Padilla and lower court decisions applying Padilla cite to ABA and NLADA standards as relevant in determining whether counsel must constitutionally advise a defendant of a particular consequence.
The ABA standards provide that "[t]o the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea."30 In addition to its standards, the ABA maintains a very useful database containing collateral consequences by state which can be found at http://www.abacollateralconsequences.org/.31 After selecting the appropriate jurisdiction, the practitioner can search by consequence or triggering offense category.
NLADA also publishes its standards for attorney performance, which can be found at http://www.mynlada.org/defender/DOJ/standardsv2/welcome.html.32 In addition to other standards, when entering a plea the NLADA standards provide that "[c]ounsel should be fully aware, and ensure the client is fully aware of:...collateral consequences of conviction, e.g., deportation, civil disabilities, and enhanced sentences for future convictions."33 The standard further provides that counsel should advise the client of potential "asset forfeiture," and "restrictions on, loss of, or other potential consequences affecting the client's driver's or professional license."34
Padilla established that constitutionally effective practitioners must advise clients of the deportation consequences of a guilty plea where these are clear. Where those consequences are not clear, practitioners must advise the client there is a risk of adverse immigration consequences.
Whether Padilla extends to consequences other than deportation, and whether those consequences are characterized as collateral or direct, is unclear. While Illinois has only extended the Padilla analysis to civil commitment, other courts have found counsel must advise their clients of other consequences such as parole ineligibility and sex offender registration requirements. In order to provide constitutionally effective counsel or evaluate post-conviction relief claims in light of Padilla, counsel should reference the foregoing opinions and professional standards.
Angela Rollins <firstname.lastname@example.org> graduated from Southern Illinois University School of Law and is a law clerk to the Honorable J. Phil Gilbert. The views expressed here do not necessarily reflect those of the U.S. government.
2014 Lincoln Award writing contest winners
Angela J. Rollins won first place and $2,000 for this article in the 2014 Lincoln Award Contest. The competition is open to ISBA Young Lawyers Division members. Contest judging is blind and conducted by a different panel of lawyers and judges each year. Watch the ISBA Web site and ISBA publications beginning in May for information about the 2015 contest.
The second place winner was Richard J. VanSwol, of Purcell & Wardrope Chtd. in Chicago, who wrote "Playing with Fire: Limitations on Insurance Coverage for Expected or Intended Harm." He won $1,000.
Third place and $500 went to last year's first-place winner, Jill Ausdenmoore of Decatur, for "A Practitioner's Guide to Illinois' Speedy-Trial Statute."
Many contest entries will appear in the Illinois Bar Journal in the coming months. Thanks to all who entered. Watch ISBA publications and our website beginning in May for information about the 2015 contest.
2014 Contest Judges
Justice John Turner of Lincoln has served on the Fourth District Appellate Court since 2001. He is a former associate of Kavanagh, Scully, Sudow, White & Frederick in Peoria. He has also served as a public defender, state's attorney, and state representative.
Hon. Pamela E. Loza of Chicago is supervising judge in the Paternity/Child Support Department of the Cook County Circuit Court Domestic Relations Division. She has also been an assistant Cook County State's Attorney and a private practitioner concentrating in criminal and domestic relations law. She is a member of the ISBA Family Law Section Council.
Mark D. DeBofsky practices with the Chicago firm DeBofsky & Associates, P.C., concentrating in litigation and consultation relating to representation of claimants and plaintiffs in employee benefit claims, disability insurance, and other employment-related matters. He is a regular columnist with the Chicago Daily Law Bulletin.
Mary D. Cascino is Senior Counsel at Handler Thayer, LLP in Chicago, where she heads the firm's estate administration practice. She is past chair of the ISBA Trusts & Estates Section Council. She has been active in promoting Illinois trust legislation, including the recently enacted Distributions in Further Trust (Decanting) and Directed Trust statutes.
Nick Kujawa is a sole practitioner in Belleville focusing on civil litigation. Nick prides himself on personal attention to his clients and is the author of "My Jerry Maguire Moment," Illinois Lawyer Now, Vol 2., No. 1 (2010).
- Padilla v. Kentucky, 559 U.S. 356 (2010).
- Id. at 359.
- Id. (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008))
- In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court explained that a party claiming ineffective assistance of counsel must show that: (1) trial counsel's performance fell below objective standards for reasonably effective counsel; and (2) counsel's deficient performance prejudiced the party's defense.
- Padilla, 559 U.S. at 365.
- Id. at 366
- Id. (quoting Strickland, 466 U.S. at 688).
- Id. at 369.
- People v. Hughes, 2012 IL 112817, ¶ 60.
- Id. at ¶ 50.
- People v. Johnston, 2013 IL App (5th) 110066-U, ¶ 14.
- Id. at ¶ 16.
- United States v. Reeves, 695 F.3d 637 (7th Cir. 2012).
- Reeves' claim was thus different than the defendant's claim in Johnston. Reeves sought to attack the validity of his state conviction by objecting to the government's § 851 enhancement. The seventh circuit noted "that this is a permissible although unusual method to launch a collateral attack on a prior conviction." Id. at 639.
- Id. at 640.
- Id. (quoting Lewis v. United States, 902 F.2d 576, 577 (7th Cir. 1990)).
- Bauder v. Department of Corrections, 619 F.3d 1272 (11th Cir. 2010).
- Commonwealth v. Abraham, 996 A.2d 1090 (Pa. Super. Ct. 2010), overruled by Commonwealth v. Abraham, 62 A.3d 343 (Pa. 2012).
- Id. at 1094-95.
- Commonwealth v. Abraham, 62 A.3d 343, 350-53 (Pa. 2012)
- Taylor v. State, 698 S.E.2d 384, 387 (Ga. Ct. App. 2010).
- Id. at 387-88.
- Id. at 388.
- Webb v. State, 334 S.W.3d 126, 127 (Mo. 2011).
- Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012).
- Id. at 878.
- Frost v. State, 76 So. 3d 862 (Ala. Crim. App. 2011).
- Stith v. State, 76 So. 3d 286 (Ala. Crim. App. 2011).
- See, e.g., Am. Bar Ass'n, Criminal Justice Section Standards - Pleas of Guilty, available at http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_guiltypleas_blk.html (last visited Dec. 2, 2013).
- Am. Bar Ass'n, National Inventory of Collateral Consequences, available at http://www.abacollateralconsequences.org/ (last visited Dec. 2, 2013).
- Nat'l Legal Aid & Defender Ass'n, Standards for Attorney Performance, available at http://www.mynlada.org/defender/DOJ/standardsv2/welcome.html (last visited Dec. 2, 2013).