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Using a “canned” speech while reviewing a plea petition with a client who is not a U.S. citizen teeters on the brink of ineffective assistance of counsel.

Recently, the Minnesota Court of Appeals determined a defendant received ineffective assistance of counsel when his lawyer advised him he would not be deported for pleading guilty to domestic assault.[1] Instead of referring his client to an immigration attorney or researching the issue, Guevara’s lawyer used a “canned” speech many lawyers use in plea petitions around the state. The speech: if you are not a U.S. citizen, you understand that a conviction could result in deportation.

Guevara plead guilty to domestic assault as a misdemeanor offense. Only after his guilty plea did Guevara learn that a domestic assault conviction is a deportable offense. At that point, Guevara obtained a new lawyer and moved the court to withdraw his guilty plea. Guevara relied on ineffective assistance of counsel in his motion. The post-conviction court agreed that Guevara received ineffective assistance of counsel, because his lawyer did not advise him that a guilty plea to domestic assault is deportable. But, the post-conviction court decided the error by Guevara’s counsel did not prejudice him and denied his motion.

On appeal, the court of appeals held that Guevara’s trial counsel’s representation fell below an objective standard of reasonableness, which satisfies the first step of an ineffective-assistance-of-counsel claim under Strickland. The second step is whether there is a “reasonable probability” that “but for the alleged errors of his counsel, he would not have pleaded guilty.”[2] This second prong is where the court of appeals disagreed with the post-conviction court. The court of appeals’ reversal highlighted Guevara’s testimony to the post-conviction court: if his trial counsel properly advised him that a domestic assault conviction was deportable, he would not have plead guilty.

Advising non-U.S. citizen clients whether a crime is deportable is absolutely critical at the trial court. The Minnesota Supreme Court will provide further guidance on the issue in Herrera Sanchez;[3] and the court of appeals’ decision in Guevara proscribed an additional warning – do not use a canned speech during a plea with a non-citizen.

The court of appeals noted that the federal immigration statute makes it abundantly clear that a domestic violence-related conviction is deportable,[4] which falls below the Padilla standard set by the United States Supreme Court.[5]

Referring your client to an immigration attorney, talking to an immigration attorney yourself, or doing research on your own are all highly recommended when representing a non-U.S. citizen.  Relying on the standard language from a plea petition is incredibly risky and a disservice to your client as a criminal defense lawyer.

Robert H. Ambrose is a criminal defense attorney in Minneapolis and St. Paul. He routinely represents people facing potential immigration consequences from criminal charges. For a free and private consultation, please contact us at 651-800-4842 or email: ambroselegal@icloud.com. St. Paul criminal defense attorney; criminal attorney St. Paul MN; and criminal defense attorney St. Paul MN.

[1] Guevara v. State, A15-0295 (Minn. Ct. App. filed Jan. 19, 2016).

[2] Guevara (citing Ecker, 524 N.W.2d 712, 718 (Minn. 1994)).

[3] Last fall, we blogged about advising defendants of deportation consequences in criminal cases here. In the near future, the Minnesota Supreme Court will hear Herrera Sanchez v. State. The court will decide whether Herrera Sanchez’s deportation consequences were “truly clear” under the Padilla standard for pleading guilty to third degree criminal sexual conduct. The defense lawyer in Herrera Sanchez used a similar canned speech that Guevara’s lawyer did.

[4] 8 U.S.C. § 1227(a)(2)(E)(i) (2012) states “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.”

[5] In Padilla v. Kentucky, the United States Supreme Court determined that an attorney has a constitutional obligation to advise a defendant if “the offense he was pleading guilty to would result in his removal” from the U.S. The Court reasoned that deportation should be “truly clear” to a lawyer under an objectively reasonableness standard.

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