The Pennsylvania Law Weekly
December 25, 2012
Plea bargaining is back in front of the U.S. Supreme Court. For the third time in little more than two years, the court is being asked to decide the reach of the Sixth Amendment as it relates to the plea bargaining process.
The Sixth Amendment to the U.S. Constitution provides, in part: "In all criminal prosecutions the accused shall ... have the assistance of counsel for his defense."
In 1932, U.S. Supreme Court Justice George Sutherland wrote, "Even the intelligent and educated layman has small and sometimes no skill in the science of law. ... He requires the guiding hand of counsel at every step in the proceedings against him." In Powell v. Alabama, 287 U.S. 45 (1932), Sutherland was referring only to capital defendants.
It was not until 1963 that the Supreme Court extended that right to everyone, even those who could not afford counsel, in the landmark decision Gideon v. Wainwright, 372 U.S. 335 (1963). In 1984, the Supreme Court took it a step further in Strickland v. Washington, 466 U.S. 668 (1984): Not only was an accused entitled to counsel, but counsel was required to provide effective assistance.
For the next quarter-century, the Supreme Court insisted that the Sixth Amendment guaranteed effective assistance of counsel at trial. Substandard representation pretrial could always be corrected by a fair trial.
That changed in 2010 with Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on an attorney's failure to inform a criminal defendant of the risk of deportation resulting from a plea bargain. The court recognized that "deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."
Jose Padilla was born in Honduras. He agreed, upon advice of counsel, to plead guilty to drug charges in Kentucky. The plea bargain was for 10 years, half to be served in prison and half to be served on probation.
The plea resulted in Padilla being exposed to mandatory deportation. Padilla argued that his counsel was ineffective because he failed to inform him of the deportation risk. Padilla argued that had he been informed of the deportation risk, he would have gone to trial.
Padilla's counsel assured him that he "did not have to worry about immigration status since he had been in the country so long."
Padilla extended the Sixth Amendment right to effective assistance of counsel beyond trial. Duquesne University law professor Wesley M. Oliver wrote in The Present and Future Regulation of Plea Bargaining: A Look at Missouri v. Frye and Lafler v. Cooper, "Padilla further began the court's new understanding of plea bargaining as an essential part of the criminal justice process during which a defendant is entitled to effective assistance of counsel."
In March of this year, the Supreme Court decided two cases that further expanded the Sixth Amendment right to competent counsel. In Lafler v. Cooper, No. 10-209, the court was asked to review whether an attorney's advice to his client to reject a favorable plea bargain based on the lawyer's incorrect understanding of the law was ineffective assistance of counsel.
In Missouri v. Frye, No. 10-444, the court reviewed whether counsel's failure to disclose the terms of a favorable plea offer was a violation of the Sixth Amendment right to a fair trial.
The district attorney sent Galin Frye's lawyer a letter offering a reduced charge and 90 days in jail. The lawyer never communicated the plea offer to Frye. He subsequently made an open plea and was sentenced to three years in prison.
Anthony Cooper's attorney talked him out of accepting a plea of 51 to 85 months based on a misunderstanding of the law. Cooper's lawyer thought a better plea deal would come closer to trial. Instead, Cooper went to trial and the jury found him guilty. He was sentenced to 185 to 360 months in prison.
The Supreme Court held that "the Sixth Amendment right of effective assistance of counsel extends to the consideration of plea offers."
What do these decisions mean for criminal defendants who long ago rejected plea offers based on poor advice? Justice Antonin Scalia said the court's granting of constitutional protections to the plea process will "open a whole new field of constitutionalized criminal procedure: plea bargaining law." Scalia is correct and the plea bargaining process is worthy of constitutional safeguards.
Will those sentenced long ago get a chance to be heard?
A case argued before the Supreme Court on November 1 may provide some guidance. In Chaidez v. United States, No. 11-830, the court is being asked to decide whether Padilla is retroactive.
Roselva Chaidez, a native of Mexico, came to the United States in the 1970s, and became a permanent resident in 1977. In 2003, she got involved in an insurance fraud scheme, in which she falsely claimed that she had been a passenger in a car involved in a collision, according to the opinion. She was charged with two counts of mail fraud.
Her attorney did not advise her of the risk of deportation following a conviction. She pled guilty. Both sides agree, had she known of the deportation risk, she would not have pled guilty. After she was convicted, immigration officials sought her deportation. She challenged the deportation, claiming that her attorney failed to properly advise her.
The U.S. Court of Appeals for the Seventh Circuit ruled that Padilla was not retroactive. The court reasoned that the Padilla decision came down March 31, 2010, and established a new rule of criminal law and could not apply to any case in which a guilty plea had been entered prior to that date. Other federal courts disagree on the retroactivity point, making Chaidez ripe for review by the U.S. Supreme Court.
Lafler and Frye may take the same circuitous route back to the U.S. Supreme Court on the issue of retroactivity. In the meantime, those with potential claims of long-ago ineffectiveness with regard to plea negotiations should preserve their right to move forward.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the former district attorney for Lawrence County and a former member of the Pennsylvania Board of Probation and Parole. You can read his blog, The Cautionary Instruction, every Friday at www.post-gazette.com. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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