Kristin A. Molavoque, Esquire and Leonard J. Rivera, Esquire
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Enhanced Rights for Noncitizens, New Obligations for Criminal Defense Attorneys

On March 31, 2010, the United States Supreme Court made a pivotal decision that will provide increased rights to noncitizens entering into guilty pleas and will impose heightened obligations on criminal defense attorneys. The case at the center of the decision is Padilla v. Kentucky.

Padilla, a lawful, permanent resident of the United States for over forty years, pled guilty to transporting large amounts of marijuana in Kentucky. Nearly all drug trafficking offenses are deportable offenses, including Padilla’s offense. Padilla claimed criminal defense counsel never warned him about the immigration consequences of his guilty plea. As a result, he filed an ineffective assistance of counsel claim under the Post-Conviction Relief Act before the Kentucky Supreme Court.

The Kentucky Supreme Court denied Padilla’s claim for post-conviction relief, holding that the Sixth Amendment right to effective assistance of counsel did not protect a criminal defendant who received erroneous advice about the immigration consequences of the guilty plea. The Court explained such advice was a “collateral consequence” as opposed to a direct consequence of his conviction. This meant that being misinformed or uninformed regarding the deportation consequences of a plea would have no impact on the plea itself, according to the Court.

Like the Kentucky Supreme Court, the Pennsylvania Supreme Court has held that a guilty plea is not subject to collateral attack for defense counsel’s failure to inform a defendant of the immigration consequences surrounding his plea, and that a plea made under those circumstances is still considered to be voluntary and knowing. However, the holding in Padilla trumps this line of cases and will enable noncitizens to seek relief.

As a direct result of Padilla, the Supreme Court adds to the responsibilities of criminal defense attorneys. Now Pennsylvania criminal defense counsel must warn defendants of the deportation consequences of entering into a guilty plea. When preparing a case or guilty plea, criminal defense attorneys will need to be aware and inform their clients of the impact that pleading guilty to certain criminal offenses will have on their immigration status. Otherwise, an attorney’s failure to warn a client could form the basis of a post-conviction relief claim under Pennsylvania’s Post-Conviction Relief Act (“PCRA”).

Within the context of Padilla, PCRA petitioners must allege they were not properly notified, instructed, and/or informed by an attorney that their immigration status would be affected by pleading guilty to their particular criminal charges, and that the outcome of the proceeding would have been different if it were not for the attorney’s conduct.

Of significance, the rules of criminal procedure and PCRA specify that an appeal must be filed within one (1) year from the date the judgment becomes final. A judgment becomes final at the conclusion of direct review, including discretionary review by the state appellate courts. There are three (3) exceptions to the one-year requirement, one of which includes an exception for newly found constitutional rights such as those presented in Padilla.

If a post-conviction appeal is untimely, neither the Supreme Court nor the trial court has jurisdiction over the petition, and without jurisdiction, the courts simply do not have the legal authority to address the substantive claims.

Any petition invoking an exception shall be filed within sixty (60) days from the date the claim could have been presented. Since the Padilla decision was filed on March 31, 2010, the sixty (60) day period to file a PCRA petition expires May 31, 2010. However, there may be a chance to file an appeal after this date.

You should contact an attorney with immigration experience to determine whether a person you know has appellate remedies available as a result of the Court’s decision in Padilla. It could prevent someone you know and care about from being permanently removed from this country.

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