Taking Padilla One Step Further


The Supreme Court of Pennsylvania recently issued an interesting opinion that may be the opening salvo in another round of Padilla-related litigation, this one on the scope of the Court’s ruling in Padilla.  The case is Commonwealth v. Abraham, decided on December 7, 2012.  The defendant in Abraham, a public school teacher, sought postconviction relief because he claimed his counsel was ineffective for failing to advise him he would forfeit his public employee pension if he pleaded guilty to an offense involving an inappropriate with a former student.  The defendant argued that the near automatic pension forfeiture in his case was no different from the deportation consequences at issue in Padilla, and that he should have received counsel on this issue before he decided to enter his plea.  The threshold question before the court in Abraham, however, and one that I think will be litigated in more and more postconviction relief cases, concerned the viability of the distinction between direct and collateral consequences in the ineffective assistance of counsel context post-Padilla.

This is how the Pennsylvania Supreme Court answered the question:

Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa’s general holding remains: a defendant’s lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Frometa, at 93.

The Abraham court then went on to conclude that the consequence at issue in the case fell under the category of collateral consequences for which the Constitution did not require legal counsel.  In a notable concurrence, Chief Justice Castille wrote separately to observe that the defendant in the case would not have been entitled to retroactive application of Padilla in any event.  One justice dissented, arguing that Padilla did, indeed, do away with the distinction between collateral and direct consequences, and that the defendant did, in fact, receive ineffective assistance based on his attorney’s failure to advise him on the possibility that his pension would be forfeiting in light of his conviction.

The decision in Commonwealth v. Abraham can be downloaded here.

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