Counsel ineffective in theft case for failing to advise the defendant that his guilty plea carried
possible deportation consequences. Counsel’s conduct was deficient and he admitted–“with
admirable candor”–“that he dropped the proverbial ball.” Id. at 707. The fact that
the probation officer preparing the presentence investigation report may have advised the
defendant of the deportation causes a month after the plea was irrelevant to what the
defendant knew at the time of the plea. Prejudice found because the defendant, a native of
Pakistan, had been in the U.S. for 20 years and had a wife and 13-year-old daughter, who was
presumably born here and a U.S. citizen. Thus, sufficient circumstances existed to establish
a reasonable probability that the defendant would not have plead guilty if he had been
adequately advised.
2006: State v. Patel,
626 S.E.2d 121 (Ga. 2006)
Counsel was ineffective in sexual battery plea of nolo contendre for making affirmative misrepresentations to the defendant with respect to the effect of the plea on the defendant’s future participation as a physician in federal health care programs, such as Medicare and Medicaid. The defendant entered a plea only after specifically asking counsel about this issue. Without conducting “the basic research” necessary, counsel incorrectly advised the defendant that there would not be any long-term consequence when, in fact, the defendant was prohibited from participation in these programs for 10 years. Although there is no constitutional requirement to advise defendant’s of collateral consequences of a plea, counsel here made an affirmative misrepresentation in response to the defendant’s specific inquiries. Prejudice found because the defendant would not have entered a plea of nolo contendre if he had been properly advised.
2005: Davis v. Murrell,
619 S.E.2d 662 (Ga. 2005).
Counsel was ineffective in armed robbery plea case. The defendant was charged with six armed robberies and other offenses and plead guilty to one armed robbery in exchange for dismissing the other charges and a sentence of 20 years that was made concurrent to a sentence he was serving in Florida. Counsel’s conduct was deficient because counsel affirmatively misinformed the defendant that he would be eligible for parole and sentence review when neither was true. Prejudice found.
2004:Cobb v. State
895 So. 2d 1044 (Ala. Crim. App. 2004)
Counsel ineffective in driving under the influence case for failing
to adequately investigate and advise the defendant prior to his entry of
a guilty plea. The defendant plead guilty under the assumption that he
would be accepted into drug court and would receive no prison time.
Because of a prior conviction of which counsel was unaware, the
defendant was ineligible for drug court. Counsel admitted in his
post-trial motions and conceded that his conduct was deficient.
Prejudice found because the defendant consistently maintained innocence
and would not have plead guilty if he had been adequately advised.
Hernandez v. Commissioner of Correction
846 A.2d 889 (Conn. App. Ct. 2004).
Counsel ineffective in murder nolo contendre plea case for
erroneously advising the defendant concerning parole eligibility. During
the first day of trial, the defendant withdraw his not guilty plea and
entered a nolo plea in exchange for a 25 year sentence. He had been
informed by counsel that he would be eligible for parole after serving
half of the sentence, when the defendant was ineligible for parole under
state law. Counsel’s conduct was deficient and the defendant was
prejudiced because he likely would not have entered the plea absent
counsel’s misadvice because the defendant had a plausible self-defense
argument and the court had already excluded the testimony of the only
state’s witness that could testify about the defendant’s motive to
commit murder.
Matton v. State
872 So.
2d 308 (Fla. Dist. Ct. App. 2004).
Counsel
in sexual battery case was ineffective in probation revocation
plea case for failing to advise the defendant that he
was
entitled to credit for his previously accrued "gain time" in prison
and that, by entering plea agreement for 9 years credit, he was
waiving his
right to this gain time credit to which he was otherwise entitled.
Counsel was also ineffective for failing to challenge the victim
injury points included in the sentencing guidelines scoresheet
simply because
they had been included in the initial sentencing and counsel believed
she could not challenge them. Counsel’s conduct was deficient because
she could have made the challenge. Prejudice was found because
the defendant was entitled to the gain time absent a knowing and
intelligent
waiver and the state could not include the victim injury points
without proof of actual physical injury to the victim. Admission
to probation
violation withdrawn.
Rollins v. State
591
S.E.2d 796 (Ga. 2004).
Counsel was ineffective
in drug plea for giving the defendant erroneous advise concerning
the collateral consequences
of pleading
guilty, which resulted in the defendant pleading guilty. The defendant
was a native of Barbados and a resident alien when she entered
a first
offender guilty plea to a drug charge based on trace amounts of cocaine
discovered on a dollar bill in her purse. Although the defendant
maintained innocence and the state’s evidence was very weak,
she entered
a plea on the advice of counsel. Prior to entry of the plea, the
defendant asked counsel if there would be any negative repercussions
from the plea that would effect the defendant’s desire to
go
to law
school and become a lawyer and her INS status. Without conducting
any research, counsel advised the defendant that there would be
no
repercussions. Counsel’s conduct was deficient because basic research
would have revealed that the defendant was subject to deportation
upon a
drug conviction. Basic research also would have revealed that it
is standard practice for any state bar to require the applicant
to provide
information concerning prior convictions. Prejudice was found because
both the defendant and counsel testified unequivocally that
the
defendant would not have entered a plea had she known of the adverse
impact on either her intension to become a lawyer or her
immigration status.
2003:State v.
Rojas-Martinez
73 P.3d 967 (Utah Ct. App. 2003), cert. granted
80 P.3d 152 (Utah 2003)
Counsel ineffective in affirmatively misrepresenting the deportation consequences prior to entry of guilty plea. While deportation is a collateral consequence and an attorney has no duty to inform a client of deportation consequences of a guilty plea, if counsel addresses the subject the advice must be accurate. Here where deportation was a virtually automatic, unavoidable consequence but counsel informed the defendant that he "might or might not" get deported this was an affirmative misrepresentation of the truth. Prejudice found because the defendant would not have plead guilty if he had known the truth.
2001: Crabbe v. State,
546 S.E.2d 65 (Ga. Ct. App.
2001)
Counsel ineffective in negotiated plea
for kidnaping and other charges for erroneously advising the defendant
that he would be eligible for parole after 10 years when defendant
would, in fact, have to serve the entire 20 years without parole
eligibility. While "[t]here is no requirement that a defendant be
advised of his eligibility or ineligibility for parole for his guilty
plea to be valid . . . [if] the defense strategy in plea negotiations is
an attempt to ensure the defendant's eligibility for parole, and the
defendant's attorney misinforms his client that he will be eligible for
parole, the attorney renders ineffective assistance."
State v. Kress
636
N.W.2d 12 (Iowa 2001)
Counsel ineffective
in plea to obtaining prescription drug by forgery case for failing
to file a motion in arrest
of judgment, which was required to challenge the voluntariness of the
plea on appeal, because the trial court incorrectly advised the
defendant of the minimum sentence. The court advised her that the
minimum was one third of the maximum indeterminate sentence but that
it could be waived by the court. The court initially did waive but
then
reopened the record and declared no discretion to do so. The court was
correct that it had no discretion but defense counsel did not object
or
file the motion. Counsel was deficient because there was no strategy,
just "legal misadvice." Defendant was prejudiced because she may
not have pled guilty absent the misadvice.
Bronson v. State,
786 So. 2d 1083 (Miss. Ct. App. 2001)
Counsel ineffective in armed robbery
plea for misleading the defendant about the possible minimum sentence,
which rendered the plea invalid because it was not knowingly and
voluntarily made. The court reversed due to the combination of the
judge's failure to apprize the defendant of the minimum sentence, the
petition to enter the plea contained incorrect and misleading
information, and the attorney misled the defendant to believe that he
could possibly get off without serving any jail time, when in reality
the minimum sentence for his crime was three years.
2000: Aldus v. State,
748 A.2d 463 (Me. 2000)
Counsel ineffective in aggravated
assault case for failing to request a continuance in plea hearing in
order to learn why the INS was "looking for" the defendant and to advise
her accordingly. Defendant plead guilty in a plea arrangement unaware
that the plea made her "conclusively presumed" deportable. While the
court did not find that every defense lawyer should know immigration
consequences and did not review the issue of whether this was a
collateral consequence for which no advice was required, deficient
conduct found for not seeking continuance in order to answer defendant's
question about INS. Prejudice found because she would not have plead
guilty if she had known of deportation consequence.
State v. Vieira,
760 A.2d 840 (N.J. Super. Ct. 2000)
Counsel ineffective in failing to
address deportation issue for defendant from Portugal, who had resided in U.S. for 30
years, prior to plea for third degree case. While deportation may not be a penal
consequence of guilty plea and counsel is not obligated to make specific inquiry as to
residency status of a defendant, when a defendant previously discloses that he is a
resident alien, the knowledge is imputed to defense counsel and the defendant discloses
in open court that he has problems reading and writing English, counsel's performance is
constitutionally deficient if counsel does not address issue of deportation with defendant
and defendant is not aware of risk of deportation. "When counsel makes a strategic
choice based on inadequate investigation, however, the strategic choice is robbed of its
presumption of competence and must be judged on whether reasonable professional
judgments support the limitations on investigation. Id. at
685-86.
People v. Brown,
723 N.E.2d 362 (Ill. App. Ct. 1999), appeal denied, 729 N.E.2d 498 (Ill.
2000)
Counsel ineffective in plea
negotiations in aggravated battery and firearms case because counsel was
not aware that the defendant was subject to a mandatory life term as
habitual criminal if convicted of aggravated battery. Defendant had told
the investigator of prior convictions and information was in counsel's
file. The state had offered a plea agreement that still would have
subjected the defendant to mandatory life. Prejudice found though
because there was a reasonable probability that if defense counsel had
known of the mandatory life problem, counsel may have been able to
negotiate a better deal to avoid the issue.
Coker v. State,
995 S.W.2d 7 (Mo. Ct. App. 1999)
Counsel ineffective in burglary,
theft, damage to property, and possession of drug case for failing to
adequately advise defendant on sentence possibilities prior to guilty
plea. Guilty plea to possession of controlled substance was rendered
involuntary by defense counsel's ineffective assistance in representing
that sentence for possession, which was initially sentence of probation,
would run concurrently with sentences for two other offenses, without
disclosing that trial court had discretion to order consecutive
sentences if probation was revoked, though defendant understood possible
sentencing range for possession offense. Probation revoked and
defendant's sentences ran consecutively.
Turner v. State,
335 S.C. 382, 517 S.E.2d 442 (1999)
Counsel ineffective for failing to
adequately advise prior to plea. Defendant entered plea to pending
charges after his probation was revoked and he was sentenced to serve
the remaining 14 years on prior charges. He actually only had 7 years
remaining on prior though and would not have plead guilty for 15 year
concurrent sentence if he had known that.
Ex parte Moody,
991 S.W.2d 856 (Tex. Ct. App. 1999)
Counsel ineffective in drug possession
case for advising defendant erroneously that, if he plead guilty in
state court, he would be transferred back to federal prison to serve a
previously imposed sentence and his state and federal sentences would
run concurrently. This advice was false and defendant had to serve 15
year state sentence and then serve all of federal sentence. Defendant
would not have plead guilty but for this erroneous
advice.
1998: Ward v. State,
708 So. 2d 11 (Miss. 1998)
Counsel ineffective in sale of cocaine
and escape from jail plea case for failing to adequately advise the
defendant of the possible punishments. Even though the escape charge the
defendant faced carried only a six month maximum, counsel allowed
defendant to plead guilty to the more serious violent felony escape
charge and the defendant was sentenced to five years on that charge.
Defendant also argued that he was not advised of the possible punishment
range on the cocaine charge and the record and the state's evidence did
not rebut that claim. Because counsel made such an egregious error on
the escape charge, the court was not satisfied that counsel rendered
adequate assistance on the cocaine charge. Thus, both pleas set aside
because not voluntarily and knowingly made. Court held, "Effective
assistance of counsel contemplates counsel's familiarity with the law
that controls his client's case." 708 So. 2d at 14.
State v. Thomsen,
719 A.2d 1288 (N.J. Super. Ct. App. Div. 1998)
Counsel ineffective
in case of eluding police by motor vehicle, which was charged as fourth degree. Even
though statute had been amended effective prior to this crime to make these offenses
second degree, counsel was unaware of the change in the statute and did not advise the
defendant of the possible increase in penalty. No one discovered the change until after
conviction, but before sentencing, and the judge changed the conviction to second degree.
The Court held that the lack of knowledge prejudiced the defendant in his consideration of
the proffered pre-trial plea offer when he was unaware of his potential criminal exposure in
rejecting it. The Court declined, however, to conduct Strickland prejudice analysis
because the result was that the defendant was denied a fair criminal process and notice
similar to the problem in Lankford v. Idaho, 500 U.S. 110 (1991)
(failure to give notice that defendant was subject to death penalty
prior to death sentence violated due process).
1995: Morales v. State,
910 S.W.2d 642 (Tex. Ct. App. 1995)
Counsel ineffective in child abuse
case for failing to advise non-English speaking client prior to entering
plea with no deal that judge could sentence her to up to 99 years and
that she would be deported. Counsel never mentioned deportation and told
client that she would get no more than 30 years. She got 75
years.
Tallant v. State
866
S.W.2d 642 (Tex. Ct. App. 1993)
Trial counsel ineffective in aggravated
sexual assault case for advising defendant that if he plead guilty
and waived
jury sentencing that he would probably get probation when the court
was
precluded from granting probation in aggravated sexual assault
case.
1992: People v. Blommart,
604 N.E.2d 1054 (Ill. App. Ct. 1992), appeal denied, 612 N.E.2d
516 (Ill. 1993)
Counsel ineffective in murder of child
prosecution for misinforming defendant as to potential penalty for
murder, misleading her concerning eligibility for work release, and
possibility of losing parental rights to other son. Based on incorrect
advice, defendant rejected plea agreement in which she could have pled
guilty to involuntary manslaughter and did not even request a
manslaughter instruction at trial.
Williams v. State,
605 A.2d 103 (Md. 1992)
Counsel ineffective for failing to
advise defendant that he faced a mandatory sentence of 25 years which
resulted in defendant turning down a plea offer for a lesser included
offense and 10 years.
1991:Reeves
v. State
564
N.E.2d 550 (Ind. Ct. App. 1991)
Counsel
ineffective for advising defendant to accept plea offer to avoid
being charged as habitual offender when
defendant was not eligible for habitual offender
status.
1991: Alexander v. State,
303 S.C. 539, 402 S.E.2d 484 (1991)
Trial counsel ineffective for advising
client that he would face potential life sentence if he proceeded to
trial when he would have actually faced a 7-25 year sentence for one
charge and a 25 year sentence for the second charge. Based on trial
counsel's erroneous advice, defendant pled guilty.
Ray v. State,
303 S.C. 374, 401 S.E.2d 151 (1991)
Counsel ineffective for advising
defendant he would get life without parole if convicted which prompted
guilty pleas when sentence actually ranged from 75 years without parole
to as little as 10 years if sentences ran
concurrently.
Ex parte Battle,
817 S.W.2d 81 (Tex. Crim. App. 1991)
Trial counsel ineffective in
aggravated sexual assault case for advising defendant that if he pled
guilty he could get probation when state law prohibited probation for
that offense.
1990: Howard v. State,
783 S.W.2d 61 (Ark. 1990)
Trial counsel in kidnapping and rape
case (defendant's husband was accomplice) ineffective for recommending
that the defendant plead guilty without the benefit of a plea bargain.
Counsel's advice was based on reliance on outdated statutes and
counsel's belief that all or part of the sentence would be suspended and
the defendant would spend no more than 90 days in prison when the
defendant actually got 20 and 40 year consecutive sentences. In
addition, during the representation, the defendant was undergoing
psychiatric treatment, having problems with alcohol abuse, and having
sexual relations with counsel.
Lotero v. People,
560 N.E.2d 1104 (Ill. App. Ct. 1990)
Counsel ineffective for incorrectly
advising client that he could not be deported if he pled guilty to
narcotics charge.
People v. Maranovic,
559 N.E.2d 126 (Ill. App. Ct. 1990)
Counsel ineffective for failing to
realize defendant's alien status and advise him of deportation
consequence of pleading guilty to felony even though presentence report
indicated that defendant was born in Yugoslavia and counsel had to have
an interpreter at times to communicate with client.
1989: People v. Miranda,
540 N.E.2d 1008 (Ill. App. Ct.), appeal denied, 545 N.E.2d 736 (Ill.
1989)
Counsel ineffective for failing to
advise alien defendant of deportation consequence of pleading guilty to
felony.
Hinson v. State,
297 S.C. 456, 377 S.E.2d 338 (1989)
Trial counsel in murder case
ineffective for advising client that he would be eligible for parole in
10 years if he pled guilty when in fact he would not be eligible for
parole until 20 years had passed. Defendant pled guilty based on this
erroneous advice.
1987: Ex parte Pool,
738 S.W.2d 285 (Tex. Crim. App. 1987)
Counsel ineffective for misadvising
based on prosecutor's assertions that defendant could get a minimum 25
year sentence for felony DWI if he didn't accept state's plea
offer.
1986: People v. Padilla,
502 N.E.2d 1182 (Ill. App. Ct. 1986), appeal denied, 508 N.E.2d 734
(Ill. 1987)
Counsel ineffective for incorrectly
advising client that he could not be deported if he pled guilty to
felony charge.
1985: People v. Correa,
485 N.E.2d 307 (Ill. 1985) (affirming 465 N.E.2d 507 (Ill. App. Ct. 1984))
Counsel ineffective for incorrectly
advising client that he could not be deported if he pled guilty to
felony.