For the Defense - Vol. 8, Issue 4 - 48

but make a mistake may be subjected to ineffective assistance claims,
while their less diligent colleagues rest easy under the cover of their
vague warnings.18
Some Commonwealth judges have recognized that Escobar's and
McDermitt's interpretations of Padilla are " seemingly at odds with
those of many other jurisdictions, " 19
signaling potential receptiveness
to additional legal challenges. In a 2017 unpublished decision, the
Pennsylvania Superior Court affirmed a decision stating, " [w]ere
it this court's job to dispose of petitioner's ineffective assistance of
counsel claim based solely upon the U.S. Supreme Court's decision
in Padilla-prior to our Superior Court's narrow interpretation
in Wah, McDermitt and Escobar-I would have found counsel to
have been ineffective under Padilla, as have the courts of so many
other jurisdictions. " 20
However, the Superior Court felt bound by
precedent and upheld the denial of ineffective assistance despite
defense counsel admitting he only advised his client that deportation
consequences were a " possibility, " but not that he was subject to
mandatory deportation.21
Jurisdictions that adhere to Padilla's " clear consequences require
clear advice " doctrine provide basic, yet compelling, reasoning for why
they do so. When the law is clear that deportation is presumptively
mandatory and the individual will clearly be barred from seeking any
sort of discretionary relief from removal, potentially resulting in their
permanent separation from their homes and their families, " [i]t is not
enough to say 'maybe' when the correct advice is 'almost certainly
will.' " 22
in significant variation in the quality and scope of Padilla advising
and advocacy across public defense offices in the Commonwealth.
Pennsylvania's county-based public defense system results in each
county having distinct resources, practices, and standards for how
they fulfill their constitutional obligations to their clients, including
those who are noncitizens. There is wide variation in how attorneys
identify noncitizen clients, the specificity of the immigration advice
provided to them, and counsels' understanding of their obligations
under Padilla. While the study reflects that each attorney participant
was committed to providing quality representation to their clients,
all public defense offices faced significant challenges due to lack of
resources, training, and support.
Once a noncitizen is identified, Pennsylvania public defense
offices range significantly in the manner in which they provide
immigration advice as well as the scope of that advice. Likely
because of limited resources and the fact that Pennsylvania courts
have narrowed Padilla's scope through state case law, many offices
strayed from providing their clients with full Padilla advice. Only
two public defense offices in the Commonwealth-Philadelphia and
Allegheny-have immigration specialists on staff.26
Other offices
rely on the goodwill of pro bono immigration attorneys to provide
consultations or, alternatively, seek expert funding from the Court
to finance immigration consultations with private attorneys. Some
counties provide only general immigration warnings and refer clients
to immigration attorneys for more specific advice.
In no other area of the law-in litigation or in transactional
work-would we excuse practitioners from conducting basic research
to advise their clients about the clear legal consequences of their
decisions or actions.
Some argue that judicial plea colloquies and general warnings can
be enough to cure defense counsel's ineffective Padilla advice. But
while the question of whether a plea was " knowing and voluntary "
is intertwined with the Sixth Amendment's promise of effective
assistance of counsel, the issues are distinct.23
Under Padilla, Missouri v.
Frye, Lafler v. Cooper, and Lee v. United States, the Sixth Amendment
requires effective assistance of counsel during plea negotiations.24
It
is hard to imagine how an attorney who does not understand the
clear immigration consequences of a charge can be an effective plea
negotiator. Further, when immigration consequences are truly clear,
general and equivocal judicial warnings in plea colloquies cannot
cure incomplete or incorrect advice.25
Practitioners are encouraged to continue to challenge the
Pennsylvania Superior Court's erroneous interpretations of what
is required under Padilla through appeals and post-conviction
relief petitions. Overturning Escobar and McDermitt would align
Pennsylvania with what is required by the Supreme Court and
neighboring states and encourage all practitioners to better serve
their noncitizen clients.
Padilla Advice and Advocacy in Local Public Defenders' Offices
A forthcoming article, " Padilla's Broken Promise: a Pennsylvania
Case Study, " assesses the Padilla practices in public defender
offices in the 20 Pennsylvania counties with the highest immigrant
communities: Allegheny, Berks, Bucks, Butler, Centre, Chester,
Cumberland, Dauphin, Delaware, Erie, Lancaster, Lebanon, Lehigh,
Luzerne, Monroe, Montgomery, Northampton, Philadelphia, Pike,
and York.
Through interviews with participants, the study reveals
how Pennsylvania's highly localized county funding structure results
48 For The Defense l Vol. 8, Issue 4
Many jurisdictions described a lack of training and resources
available to equip public defenders with the knowledge they need to
provide immigration warnings and engage in immigration-conscious
plea negotiations. Only two offices that participated in the study
had mandatory training for new public defenders regarding the
immigration consequences of criminal charges and convictions. Most
other offices merely mentioned immigration consequences and/or
encouraged their staff members to participate in continuing legal
education on the topic.
The lack of training and established procedures in many public
defense offices resulted in few being able to provide detailed
warnings about whether a given crime would impart specific
immigration consequences. Even fewer counties had any process for
analyzing whether charged crimes would impact the discretionary
forms of relief or defenses to deportation available to a client.
Finally, and perhaps most significantly, many offices described
serious concerns-especially given the lack of resources available-
about ever being comfortable or competent in determining when
a noncitizen might face immigration consequences, let alone what
those consequences might be.
In sum, Pennsylvania courts' narrow interpretation of Padilla and
the systemic lack of resources, training, and funding for county
public defense offices has led to confusion and frustration about
what is required of defense counsel and how they can ensure that
they provide constitutionally adequate representation. Defense
lawyers who feel they have fulfilled their Padilla obligations by
providing only general warnings and/or referrals to immigration
attorneys are unlikely to possess sufficient information to effectively
negotiate a plea or create a sentence structure that reduces potential
immigration harms. These structural and systemic shortcomings
deprive Pennsylvania's noncitizen residents of their Sixth Amendment
rights to accurate advice and effective counsel in plea negotiations.
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
