But the Office of the Public Defender said it has been advising its clients of all the important consequences of a guilty plea.
In Padilla v. Kentucky, the U.S. Supreme Court ruled that “counsel must inform a client whether his plea carries a risk of deportation.”
Attorney Joe Hill, in an e-mail to the Variety, said:
“The U.S. Supreme Court pointed to the fact that the lawyer, prior to Padilla signing the plea agreement, had in effect (1) disarmed the client by assuring Padilla not to worry about any immigration consequences arising from his guilty plea since he had been in the country so long and (2) failed to advise him of deportation risks.
“Of concern for the CNMI is the number of cases that may be affected and the potential retroactive application of the Supreme Court’s decision in Padilla v. Kentucky.”
Attorney Stephen Woodruff said the ruling “is an important decision that casts into question some previous CNMI Supreme Court decisions on effectiveness of counsel in criminal cases.”
He said the U.S. Supreme Court “clearly got it right.”
Woodruff, in an e-mail, said: “Some criminal pleas will probably have to be set aside, but this will only be the case where the defendant actually faces some substantial adverse effect or risk on account of his defense counsel’s failure to advise of the immigration consequences of the plea.”
“Personally,” Woodruff added, “I have always advised my clients of those consequences and risks.”
Attorney Robert T. Torres, in an e-mail, explained that “it is important that the Supreme Court discussed at length that deportation and removal from family is not a mere collateral consequence but is a substantial consequence.”
Defense counsel here in the CNMI have filed appeals on this issue locally, including CNMI v. Taivero and CNMI v. Shimabukuro, Torres noted.
He said “the ruling gives courts all the more reason to scrutinize claims by defendants that their decisions were based on a misapprehension of what would happen to them. The decision is a step in the right direction in the criminal justice process.”
For his part, Chief Public Defender Adam Hardwicke said his office has always provided clients adequate advice.
“The ruling in Padilla reinforces what the attorneys in the CNMI Office of the Public Defender have already been doing, which is to advise our clients of all important consequences of a guilty plea which for a non-United States citizens, often includes negative immigration consequences,” he said.
“The right to counsel is the right to the effective assistance of counsel under the 6th Amendment of the United States Constitution. In general terms this means that a defendant must have a lawyer that thoroughly investigates the facts of a case, files appropriate motions, and in the event of a plea bargain, thoroughly advises a defendant of the important consequences of a guilty plea,” Hardwicke said in his e-mail to the Variety.
Jane Mack, the directing attorney of the Micronesian Legal Services Corp., noted in her “Day in Court” blogsite that the CNMI Supreme Court “was one such court that had considered the issue in the [June 2006] case CNMI v. Shaunglan Chen and ruled against the alien defendant who sought to withdraw her guilty plea for ineffective assistance of counsel when counsel had not provided information about the deportation consequences of her plea agreement.”
Obviously, she added, “this case will mean some changes by criminal defense counsel are necessary when representing alien defendants. Because the CNMI is under U.S. immigration now, (although in the transition stage), the consequences for aliens pleading guilty or being found guilty of crimes here will be the same as for aliens in the rest of the U.S.”
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