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Lack of advice about deportation consequences merits plea withdrawal

DeBartolo v. United States, 7th Circuit Court of Appeals No. 14-3579, 6/26/15

DeBartolo pleaded guilty to violating 21 U.S.C. § 841(a)(1) by growing more than 100 marijuana plants, “[b]ut unbeknownst to DeBartolo, and also it seems to his lawyer, the prosecutors, and the judge, his conviction of the drug offense made him deportable (‘removable’ is the official term) and, were he ordered removed, would prevent him from applying for cancellation of removal.” (Slip op. at 3). Trial counsel was deficient for failing to advise DeBartolo of the deportation consequences, Padilla v. Kentucky, 559 U.S. 356 (2010), but—in light of the strength of the state’s case and the very favorable plea agreement DeBartolo received—has he shown prejudice? Yes, says a three-judge panel, in an opinion worth reviewing if you are litigating a similar issue.

To withdraw a plea based under Padilla, the defendant must show that if his counsel had not failed to warn the defendant that he faced deportation if convicted, there was a “reasonable probability” that the defendant would have gone to trial rather than have pleaded guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Padilla, 559 U.S. at 366. The defendant must also show that rejecting the plea bargain and going to trial would have been “rational under the circumstances.” Padilla, 559 U.S. at 372. (Slip op. at 4). DeBartolo meets these requirements:

A mentally competent criminal defendant who decides to stand trial even though he’s almost certain to be convicted, and who by pleading guilty would be assured of a much lighter sentence than if convicted after a trial, nevertheless can’t be ordered by the judge to plead guilty; a judge can’t plead a defendant guilty however much the plea would be in the defendant’s best interest. Why should the rule be different if the defendant, upon belated discovery of a deportation threat about which his counsel failed to warn him, chooses to withdraw a plea of guilty and risk a trial that may result in a long sentence?

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DeBartolo unquestionably wants to roll the dice, which is strong evidence that he also would have chosen to roll the dice four years ago had he known about the deportation threat. He faces the same risk of conviction and a long sentence now that he did then. His personal choice to roll the dice is enough to satisfy the “reasonable probability” standard. (Slip op. at 4-5).

This decision is generally consistent with State v. Mendez, 2014 WI App 57, which also addressed the prejudice standard in the context of a Padilla claim. Still, it is notable because courts making this kind of prejudice determination often find that reasonable defendants faced with overwhelming evidence will take favorable plea deals. (See, for instance, here; but compare here.) This decision looks at the question based on “the usual understanding of the criminal process, which is that a criminal defendant … has a right to jury trial no matter how slight his chances of prevailing.” (Slip op. at 4-5). From that angle, even if there’s strong evidence against DeBartolo the court says that “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances”; in any event, the government’s case might be weaker than it thinks (if not on the facts then maybe on the change in attitude toward marijuana, though it doesn’t “condone jury nullification”). (Slip op. at 5, 6-7). And, even if the likelihood of conviction was great, DeBartolo would still have had reasons to go to trial rather than accept the plea agreement he did:

He could have tried to negotiate a different plea deal for an offense that does not make deportation mandatory. …. Or he might have thought a small chance of remaining with his family in the United States worth the significant risk of a long prison term. He might even have preferred a lengthy prison term in the United States to a shorter prison term that would lead more quickly to deportation, because the lengthy prison term would at least keep him in the same country as his family, facilitating frequent visits by family members, which is important to prisoners. Separation from his family may have been a big concern to him if deported, as his children, having been born in the United States and presumably not knowing Italian, would not be likely to follow him to Italy. (Slip op. at 8).

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