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Lack of clear definition of “crimes involving moral turpitude” scuttles Padilla plea withdrawal claim

State v. Fernando Ortiz-Mondragon, 2014 WI App 114, petition for review granted 12/18/14, affirmed, 2015 WI 73; case activity

Ortiz-Mondragon’s trial counsel wasn’t ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise Ortiz-Mondragon that his convictions were “crimes involving moral turpitude” (CIMT) and would result in mandatory deportation and a permanent bar on reentry. Unlike the conviction in Padilla, CIMT is a “broad classification of crimes” that escapes precise definition, and there’s no clear authority indicating any of the crimes to which Ortiz-Mondragon pled were crimes of moral turpitude. Thus, the deportation consequences of Ortiz-Mondragon’s plea was unclear and uncertain, and his attorney wasn’t deficient in failing to unequivocally inform him that his plea would result in deportation and inadmissibility.

Ortiz-Mondragon pled to charges of substantial battery, criminal damage to property, and disorderly conduct, all with a domestic abuse enhancer and received probation with four months of conditional jail time. After he finished his jail time he was taken into custody by ICE and deportation proceedings were commenced. He sought to withdraw his plea because his attorney didn’t tell him that conviction for substantial battery as an act of domestic abuse would result in both mandatory deportation and permanent inadmissibility. (¶¶2-3).

The court of appeals reads Padilla as establishing different standards for judging trial counsel’s performance based on the clarity of the relevant immigration law. (¶¶7-8). When the terms of the relevant immigration statute are “succinct, clear, and explicit in defining the removal consequence for [a] conviction,” as in Padilla’s case, then counsel can easily determine that the plea would make the defendant eligible for deportation simply by reading the text of the statute, Padilla, 559 U.S. at 368. But when the law “is not succinct and straightforward,” but addresses some “broad classification of crimes” (like those discussed by Justice Alito’s Padilla concurrence), counsel need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences, id. at 368, 369. Among the scenarios noted by Justice Alito’s concurrence are those involving crimes that “fall under a broad category of crimes, such as crimes involving moral turpitude or aggravated felonies.” And Justice Alito goes on to say that it has been “widely acknowledged” that “determining whether a particular crime is … a ‘crime involving moral turpitude [(CIMT)]’ is not an easy task.” Id. at 377-78.

These differing standards don’t entirely resolve the question, though, for as Justice Alito asks, “[w]hat if the application of the provision to a particular case is not clear but a cursory examination of case law or administrative decisions would provide a definitive answer?” Id. at 381. Apparently assuming trial counsel should be expected to at least crack open a statute book and do some research into the relevant case law, the court of appeals concludes that the answer as to whether Ortiz-Mondragon’s conviction is a CIMT is too uncertain to expect trial counsel to have found a definitive answer:

¶11      …Ortiz-Mondragon does not argue that any case has ever held that any of his crimes have been explicitly recognized as involving moral turpitude. Instead, he contends “the federal courts are in accord that a crime involving an intentional act and actual injury in a domestic situation is a [crime involving moral turpitude].” But, Ortiz-Mondragon does not cite any cases actually stating as much. … For example, one of the two primary cases he relies on did not even involve a domestic situation, see Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008) (aggravated battery of a peace officer), and the other interpreted a domestic abuse crime involving not mere injury, but “corporal injury resulting in a traumatic condition,” see Grageda v. U.S. I.N.S., 12 F.3d 919, 921 (9th Cir. 1993), …

¶12    If an attorney must search federal court and unfamiliar administrative board decisions from around the country to identify a category of elements that together constitute crimes of moral turpitude, and then determine whether a charged crime fits that category, then the law is not “succinct, clear, and explicit.” See Padilla, 559 U.S. at 368.

¶13     Ortiz-Mondragon asserts he pled guilty to a crime of moral turpitude. In contrast with the circumstances in Padilla, this category is a “broad classification of crimes” that escapes precise definition. See id. He has not identified clear authority indicating any of the crimes to which he pled were crimes of moral turpitude. Rather, this appears to be one of the “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” See id. at 369. Accordingly, Ortiz-Mondragon’s attorney did not perform deficiently by failing to unequivocally inform him that his plea would result in deportation and permanent inadmissibility.

Other states have taken the same approach when it comes to Padilla claims based on lack of advice about the consequences of a conviction for CIMT. See, e.g., Garcia v. State, 425 S.W.3d 248, 260-61 (Tenn. 2013); Lopez-Penaloza v. State, 804 N.W.2d 537, 544-45 (Iowa 2011). The upshot, then, is that if a crime is not clearly, succinctly, and explicitly listed as a deportable and/or excludable offense in the federal statutes, as was the case with Padilla’s controlled substances offense, but is instead treated as an aggravated felony or CIMT, it is likely going to be difficult to determine the immigration consequences and therefore trial counsel probably won’t be deficient for simply advising the defendant that the crime may carry the risk of adverse immigration consequences.

What this decision doesn’t resolve is how deep trial counsel will be expected to dig to find an answer about the consequences of crimes in the broad categories. For instance, if a published Seventh Circuit decision has explicitly held that a Wisconsin substantial battery conviction is a CIMT, trial counsel should be expected to know that and advise the defendant accordingly. But what about clear and explicit holdings in decisions from administrative agencies “unfamiliar” to the ordinary criminal defense attorney, but nonetheless discoverable with some basic research effort? One would hope defense counsel should find those sources, too, but that remains to be seen.

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