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Court of Appeals clarifies prejudice standard for plea withdrawal motions under Padilla v. Kentucky

State v. Ivan Mendez, 2014 WI App 57; case activity

When Mendez pleaded guilty to maintaining a drug trafficking place his attorney failed to inform him that a conviction for charge would subject him to automatic deportation from the United States with no applicable exception and no possibility of discretionary waiver. Padilla v. Kentucky, 559 U.S. 356, 363 (2010) (explaining that Congress eliminated discretionary relief from deportation and that for controlled substance convictions like Mendez’s “removal is practically inevitable”). After his plea, while he was on probation, ICE arrested him and began deportation proceedings. He moved to withdraw his plea based on ineffective assistance of counsel, alleging his lawyer didn’t tell him he was virtually certain to be deported. (¶¶3-7).

While the circuit court recognized that Mendez’s counsel was deficient in failing to tell Mendez about the clear deportation consequences, it held Mendez could not establish prejudice because he did not show that “there would be a different outcome” or that he had “real and viable challenges to the underlying veracity of the conviction.” (¶¶1, 11). The circuit court applied the wrong legal standard:

¶12      Under Padilla, the question in determining whether deficient counsel prejudiced a noncitizen defendant’s plea deal is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. The record does not show that the circuit court analyzed that question. “[A]s a matter of federal law, 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.” Id.at 364 (footnote omitted). Mendez has lived in the United States since he was fourteen years old, longer than he ever lived in Mexico, and is married to a United States citizen here with whom he has a young child—also a United States citizen. He also asserted at the hearing that he fears retribution by his codefendant’s family should he be deported to Mexico. Under Padilla, a court’s analysis of prejudice must take those factors into account in measuring whether, properly informed of the automatic, irreversible, and permanent deportation consequences of his plea, Mendez might rationally have rejected the plea bargain in favor of trial despite the risk of four and one-half years of initial confinement. See id. at 372.

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¶16      Under Padilla, … “a rational decision not to plead guilty does not focus solely on whether [a defendant] would have been found guilty at trial—Padilla reiterated that an alien defendant might rationally be more concerned with removal than with a term of imprisonment.” United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011), abrogated in part on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013). In numerous post-Padilla cases, courts have concluded that despite the benefit of a great reduction in the length of the potential prison sentence, a rational noncitizen defendant might have rejected a plea bargain and risked trial for the chance at avoiding deportation. …

¶17      That is the proper analysis here, too:  not merely whether Mendez would have won his trial but whether in his particular circumstances, given his family in the United States and his fear of return to Mexico, he might rationally have decided to reject the plea and risked four and one-half years in prison, so as to preserve a chance of avoiding deportation.

The case is remanded to the circuit court so it can apply the correct Padilla standard. (¶2).

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