In a case with implications in the Padilla postconviction context, particularly in Georgia, the Supreme Court of Georgia recently reversed a trial court’s denial of a motion to withdraw a plea, finding that the trial court incorrectly relied on the plea colloquy of the defendant in determining that the defendant was not prejudiced by counsel’s misadvice as to a collateral consequence of his conviction — in this case, the amount of time the defendant had to serve before becoming eligible for parole. The trial court had denied the defendant’s motion to withdraw his plea because the defendant failed to voice his concerns about parole eligibility during his plea colloquy, instead stating that he “knew all his rights.” In the view of the trial court, this adversely affected the defendant’s credibility and amounted to a failure by the defendant to establish the prejudice prong of the two-part test for ineffective assistance. The Georgia Supreme Court rejected such reasoning as “an irrelevant basis to discredit appellant because, at the time, appellant had not in fact been correctly advise of his parole eligibility or its effect on his plea.”
Courts often reject Padilla claims on a similar basis — that is, citing a defendant’s failure to raise the immigration consequence issue during the plea colloquy or his acknowledgment that he knows his conviction may result in imminent deportation as evidence that either counsel was not ineffective or that the defendant was not prejudiced. See, e.g., Momah v. United States, Case No. 10-CV-369-A (N.D. Tex. Aug,. 30, 2010); United States v. Obonaga, Case No. 10-CV-2951 (E.D.N.Y. June 30, 2010). In light of Crowder, however, a defendant could well argue that his failure to raise immigration consequences during his plea colloquy has nothing whatsoever to do with proving IAC prejudice since he simply didn’t know, through the misadvice of counsel (or absence of advice), that immigration consequences was even a collateral issue of his conviction.
The decision in Crowder is available here.
albert – i hope you are doing well. i appreciate your blogging. take care.
Thanks Marshall. I am glad someone is reading the blog! Hope things are going well for you too.
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