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Deportation or Jail? The Padilla Case.

Posted By Cliff Tuttle | April 6, 2010

The US Supreme Court in Padilla v. Kentucky held recently that a legal immigrant was given ineffective assistance of counsel when advised to plead guilty to a serious criminal charge because it would not affect his status as a legal alien of 40 years duration.  The truth was, as Justice Stevens’ opinion noted, that under current law, deportation was virtually automatic with a guilty plea to a serious charge, regardless of how long the alien had resided in the country.

The allegation of ineffective assistance of counsel is a primary avenue to a new trial following guilty plea or a conviction.  A waiver of trial by pleading guilty must be knowing and courts frequently make queries on the record to establish that a guilty plea was given with full knowledge.  Advice as to collateral matters, such as deportation, has not ordinarily been considered by courts in determining effective assistance.  But now it must.


FOOTNOTE:  This is not the Padilla who was involved in Padilla v. Rumsfeld, a well-known 2003 Supreme Court Case involving terrorism.


CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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