CoCA extends Padilla protections

Joelle Gonzales, Volume 50 Staff Member

JUDGE KEASLER DELIVERED THE MAJORITY OPINION FOR THE COURT, AND PRESIDING JUDGE KELLER DELIVERED THE DISSENTING OPINION

The issue in this case was whether Padilla v. Kentucky should be extended to include a duty of counsel to inform a defendant of a possibility of removal based on a guilty plea. The Supreme Court of Texas held that the scope of the Sixth Amendment, as discussed in Padilla, is broad enough to encompass this duty.

In Ex. Parte Aguilar, Cristian Aguilar was an immigrant with a protected status who was eligible for legal permanent residency. Aguilar was indicted for evading arrest with a motor vehicle, a third-degree felony. He directed his immigration attorney to inform plea counsel of his concern of losing his protected status. Specifically, he would not agree to plead guilty to anything that could affect his protected status. Plea counsel informed Aguilar that he understood and would arrange a plea deal that would not affect his protected status. Subsequently, upon advice of counsel, Aguilar plead guilty to attempted evading arrest, a state-jail felony with a six-month sentence. Unbeknownst to Aguilar, this plea would cost him his temporary protected status and subjected him to removal. Aguilar alleges his plea was involuntary due to ineffective assistance of counsel, because he would have never entered the plea had he known he would lose his protected status.

Post-conviction relief caused by alleged ineffective assistance of counsel requires a defendant to show that counsel’s performance was deficient—below an objective standard of reasonableness—and that deficient performance prejudiced the defendant. Moreover, in Padilla v. Kentucky, the United States Supreme Court held that counsel has a duty to advise defendants when a consequence of removal due to a guilty plea is clear. The Court found this duty to be within the scope of the Sixth Amendment. Prior to Aguilar, whether the scope of the Sixth Amendment, as stated in Padilla v. Kentucky, encompassed a counsel’s duty to notify a defendant of the possibility of removal had not been decided.

The Texas Supreme Court broadened the scope of Padilla v. Kentucky to encompass the duty to notify because the conviction triggered loss of status which rendered Aguilar presumptively removable. Although the conviction did not directly cause removal, the conviction made removal inevitable due to the loss of the protected status. The Court further found that plea counsel was deficient for advising Aguilar incorrectly, and but for this error, Aguilar would not have entered the plea. The claim of ineffective assistance of counsel prevailed due to counsel’s deficient performance that ultimately prejudiced Aguilar.

The concurring opinion agreed that ineffective assistance of counsel lead to an involuntary plea, but disagreed with the broadening of Padilla v. Kentucky, as it only applies when it is truly clear that a guilty plea will result in the consequence of deportation. On this same ground, the dissent disagreed with the entirety of the opinion.

Ex. Parte Aguilar, No. WR-82,014-01, 2017 Tex. Crim. App. LEXIS 894 (Tex. Crim. App. Sept. 20, 2017).