In the afermath of the 9/11 attacks,and the number crimes for which an alien resident could be deported was substantially increased.  Immigration enforcement was much more stringent and the result was people who’d pled guilty to seemingly inconsequential crimes were suddenly facing deportation.  There was a time when the 8th District was very friendly to non-citizen defendants seeking to vacate pleas because those convictions now placed them in peril of being removed from the country.  Typical of those days was State v. Kiss, where the court reversed a judge’s denial of a motion to vacate a plea that had been entered 48 years earlier, saying that the “strong policy preference” expressed in RC 2943.031, which mandates warnings to non-citizens about the immigration consequences of a plea, required a hearing, even though the legislature hadn’t gotten around to expressing that “strong policy preference” until nearly 30 years after Kiss entered his plea. 

The 8th’s done an about-face on that issue, coinciding, rather curiously, with the Supreme Court’s decision in Padilla v. Kentucky (discussed here), which upheld an ineffective assistance of counsel challenge by a non-citizen defendant whose lawyer had misadvised him of the consequences of his plea.  The difference, of course, is that Kentucky had no similar statute, and it’s hard for an Ohio defendant to argue that he wasn’t advised of the immigration ramifications of his plea when the judge reads him the statutory warning.

But just how far does that warning go in curing problems of ineffective assistance?

Pretty far, judging from the 8thDistrict’s decision last week in State v. Kongkeo.  Kongkeo, a noncitizen who had been granted refugee status in 1989 and permanent residency in 1992, had pled guilty to misdemeanor counts of receiving stolen property and theft.  When the Feds started deportation proceedings two years later, Kongkeo filed a motion to withdraw the, plea arguing that her attorney did not “properly inform Defendant about the immigration consequences or refer [her] to an immigration attorney.”

A trial court isn’t required to conduct a hearing on post-sentence motion to withdraw a plea if the record contradicts the allegations of a defendant’s affidavit, and the 8th agrees with the trial court that the record did so here.  At the first plea hearing, after the judge gave Kongkeo the statutory advisement on immigration consequences, her attorney indicated “it’s a problem.”  The court continued the plea hearing for two weeks and again gave the statutory advisement, at which point Kongkeo pled.  The court indicates that it’s “beyond conception that defense counsel would not have further advised Kongkeo about the consequences of her plea” in the interim, especially since Kongkeo acknowledged at the second hearing that she knew there might be consequences.

Left unmentioned in the opinion, for the obvious reason that there was no evidentiary hearing, is what the lawyer might have advised Kongkeo during that time.  This gets back to Padilla, and exactly what it requires.  Essentially, the Court held that there were two possible situations.  The first was where the immigration consequences were clear, as they were in Padilla‘s case:  he pled to distribution of large quantities of marijuana, and under current Federal law, deportation is mandatory upon any conviction for any drug offense other than possession of less than 30 grams of marijuana.  In that situation, the Court held, the attorney had the duty to correctly advise the defendant of the immigration consequences.  If the immigration consequences weren’t clear, the defense lawyer had the obligation to advise the defendant to consult with an immigration attorney.

Kongkeo’s case arguablly falls into the former category.   Immigration law does permit deportation for a “crime involving moral turpitude,” if it results in imprisonment for at least a year, or if it involves two crimes not arising out of a single scheme.  Theft and receiving are CIMT’s, so the question becomes whether they stemmed from the same incident.  There’s no discussion anywhere of that issue, but we can assume that they weren’t if she’s in the process of being deported.  (Another factor suggests that they arose from two separate incidents:  theft and receiving stolen property arising out of the same incident would be allied offenses, and would thus merge.)

This leaves numerous possibilities, among them: 

• Kongkeo was definitely deportable and the lawyer told her that, 
• she was, but the lawyer told her she wasn’t
• the lawyer told her to talk to an immigration lawyer about it, or
• the lawyer didn’t. 

Without conducting an evidentiary hearing to find out which one of those possibilities is correct, it’s hard to determine whether a Padilla violation occurred.  The court is correct in saying that it’s very likely that the defense attorney “ further advised Kongkeo about the consequences of her plea.”  What that advice was, though, is the critical question, and there’s nothing in the record to indicate that.

More troubling is the court’s treatment of Padilla, which it finds irrelevant because it involved a case of a defense attorney giving “false assurances” that conviction would not result in removal.  This construes Padilla too narrowly:  it does not stand for the proposition that counsel’s only duty is to refrain from misadvising his client. 

The court also finds significant that Kongkeo was “twice informed by the court that her guilty plea might lead to deportation.”  This is in keeping with several post-Padilla Ohio cases which have held that the warnings mandated by RC 2943.031 solve any problems of ineffective assistance.  This is wrong on two levels.  First, it conflates the 5th Amendment with the 6th.  The judge’s role in a plea hearing is derived from the 5th Amendment’s due process concept:  the judge must determine that the plea is knowing, intelligent, and voluntary.  The 6th Amendment, though, guarantees a right of effective counsel, including at the plea hearing stage.  The fact that the court properly advises the defendant of all his constitutional (and non-constitutional) rights does not absolve defense counsel from responsibility for providing effective representation through the plea bargaining and hearing stage, and the fact that a defendant is represented by counsel at the plea hearing does not absolve the court from responsibility for properly advising a defendant of his rights.  (For an excellent development and discussion of this argument, see this article from the Yale Law Journal.)  The roles of counsel and judge in a plea hearing are complementary, not supplementary:  complete performance by one cannot obviate defective performance in the other.

The second problem is noted by Judge Gallagher’s short but insightful concurrence in the 8th District’s recent decision in State v. Lababidi.  As he notes, the mandatory advisement is “merely a factor” in determining ineffective assistance in this context: 

There is a compelling argument that a court’s statutory warning that a person “may” be deported does not necessarily cure the prejudice created by an attorney’s advisement that a defendant “may” be deported when the defendant is, in effect, presumptively deportable.

And if it doesn’t cure the error of an attorney telling the client only that he “may” be deported when he will be, it certainly doesn’t cure the error of the attorney telling the client that he won’t be deported when he will be.

Gallagher suggests that harmonizing the statute and Padilla may “require review by the Supreme Court of Ohio.”  That certainly may be.  In the meantime, it would help if the facts surrounding Padilla claims were fully developed.  That’s not done by denying an evidentiary hearing, especially when the facts are murky.