On March 31, 2010, the Supreme Court of the United States held that criminal defense counsel has a 6th Amendment obligation to inform a non-citizen client of the immigration consequences of a guilty plea, and to advise when the immigration consequences are clear. The case, Padilla v. Kentucky, 559 U.S. ___ (March 31, 2010), marks a major change in criminal defense counsel’s obligation to alien clients, and is particularly important for non-citizens facing immigration problems because of Pennsylvania criminal convictions.

Padilla, a lawful permanent resident of the U.S. for over 40 years, plead guilty to transporting a large amount of marijuana in Kentucky. His crime was a deportable offense under 8 U.S.C. §1227(a)(2)(B)(i), like nearly all other drug trafficking offenses. During plea negotiations, Padilla claimed that his criminal defense attorney failed to warn him of the immigration consequences of such a guilty plea, thus making an ineffective assistance of counsel claim for post-conviction relief before the Kentucky Supreme Court.

The U.S. Supreme Court held that constitutionally competent counsel would have advised Padilla that his drug distribution guilty plea would result in his removal from the U.S. The U.S. Supreme Court stated that it had never applied a distinction between direct and collateral consequences to define the scope of reasonably professional assistance when measuring the effectiveness of counsel under the 6th Amendment.  The Court concluded that the weight of professional norms require that defense counsel advise on the deportation consequences of a conviction. The sources reviewed, including the American Bar Association, criminal defense and public defender organizations, authoritative treatises and state and city bar associations, all agreed that defense counsel should advise of the immigration consequences of a criminal conviction.

The United States Supreme Court’s decision in Padilla is particularly significant in Pennsylvania, where the Supreme Court has held, similar to Kentucky’s, that deportation is simply a collateral consequence of a conviction that cannot serve as the basis for a 6th Amendment claim to ineffective assistance of counsel in an action under the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S. §§ 9541-9551.

In Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989), the Pennsylvania Supreme Court held that a guilty plea was not subject to collateral attack, even though the defendant was not informed that he would face deportation as a result of the plea. The Pennsylvania appellate courts have ruled consistently that a defendant’s lack of knowledge about collateral consequences surrounding the entry of a guilty plea does not render the plea unknowing or involuntary. Padilla abrogates Frometa, so now criminal counsel’s failure to warn non-citizen defendants about deportation consequences of a guilty plea can no longer simply be dismissed as merely a “collateral consequence” of a conviction or plea.

Immigration counsel is essential to assess the deportation consequences when working with a non-citizen client to reach a plea agreement. Creative bargaining for a plea agreement under a different section of the statue, and for a specific maximum sentence, may save a non-citizen from deportation. Criminal defense counsel should consult an immigration attorney in order to render effective assistance under Padilla.