Where a state advisal statute exists, as in California, it is possible to make the following argument.  In passing California Penal Code § 1016.5, effective January 1, 1978, the California Legislature determined that in fairness to immigrant criminal defendants, the court must inform each defendant (citizens as well as noncitizens), that if they are not citizens of the United States, a plea to the specific offense charged may have the consequences of deportation, exclusion, and denial of naturalization.[7]

 

The Legislature continued: “It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant’s counsel was unaware of the possibility of [the specified immigration consequences].”[8]  In other words, the Legislature anticipated that prosecution and defense would renegotiate the case, after the defendant learned of the immigration consequences, to enable the parties to achieve an appropriate criminal disposition that does not trigger adverse immigration consequences.  That appears to be the entire point of this legislation.  One hopes that the court and counsel will agree that renegotiating the criminal disposition to avoid adverse immigration consequences is an appropriate goal in the present case, now that the client has been informed of the immigration consequences of the plea that were omitted in the original plea proceeding, and has become aware of the actual impact of the conviction upon his immigration status.

 

[7] California Penal Code § 1016.5(d).

[8] Ibid. (emphasis supplied).

Other

PRACTICE ADVISORY " POST-CONVICTION RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC DURING PLEA NEGOTIATIONS " DISTINGUISHING LOCKHART V. FRETWELL
In 1993, the Supreme Court stated that the only errors of counsel that can be considered as claims of ineffective assistance are those that deprive the defendant of a substantive or procedural right to which the law entitles him in his defense. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). While pertinent in Lockhart, in which counsels error deprived the defendant only of a benefit later declared illegal, Justice OConnor was at pains to point out that this language, as well as the courts decision in that case, flowed from the highly unusual fact that the only benefit of which the defendant was there deprived was one which was forbidden under the correct legal analysis. Lockhart did not alter in any way the normal analysis of claims of ineffective assistance of counsel. The normal Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims. Williams v. Taylor, 529 U.S. 362, 391 (2000). The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland. Ibid. Williams clarified that the Courts earlier decision in Lockhart dealt with the rare situation where the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall to the defendant rather than the legitimate prejudice contemplated by our opinion in Strickland. Williams, 529 U.S. at 392; see also United States v. Glover, 531 U.S. 198, 203 (2001) ([O]ur holding in Lockhart does not supplant the Strickland analysis.); Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 699 n.23 (2011). Lockhart was an exception to the normal Strickland prejudice test, applicable only when the benefit of which the defendant was deprived by counsels error was in fact prohibited by a later change in the law. It would be an unfair error of the gravest magnitude to glorify it into a rule that eliminates any protection against ineffective assistance of counsel except in those rare cases in which the defendant can show a reasonable probability he or she would have taken the case to trial.

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " GUILTY PLEA " REQUIREMENT PLEA MUST BE VOLUNTARY, KNOWING, AND INTELLIGENT " PLEA INVALIDATED BY INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA NEGOTIATIONS
To be valid, a plea of guilty must be free and voluntary, knowing and intelligent. Boykin v. Alabama, 395 U.S. 238 (1969). While a guilty plea validly taken waives various pre-plea claims of error, there are at least eight exceptions to this rule. See A. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES 195 (1988). Chief among the "issues that survive a plea of guilty are . . . (e) whether [the defendant] was adequately represented by counsel in connection with the plea . . . ." Id., citing Williams v. Kaiser, 323 U.S. 471 (1945); Tollett v. Henderson, 411 U.S. 258 (1973); Hill v. Lockhart, 106 S.Ct. 366 (1985).