Ex Parte Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 3)

*3 In 2010, the Supreme Court issued its opinion in Padilla v. Kentucky, — U.S. —-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it explained a criminal defense attorney’s duty to advise his client about the potential immigration consequences of a plea. In that case, Padilla pleaded guilty to an offense that subjected him to automatic deportation. The Supreme Court recognized that immigration law is complex and stated that when “the deportation consequences of a particular plea are unclear or uncertain … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 1483. But the Court also held that “when the deportation consequence is truly clear, the duty to give correct advice is equally clear.” Id. The Court held that “constitutionally competent counsel would have advised [Padilla] that his conviction … made him subject to automatic deportation.” Id. at 1478, 1486-87. Because counsel did not so advise Padilla, the Court concluded that counsel was not constitutionally competent and that Padilla satisfied the first prong of Strickland. Id.; see Ex parte Martinez, No. PD-1338-11, 2012 WL 1868492, at *4-5 (Tex.Crim.App. May 16, 2012) (not designated for publication) (when deportation and exclusion from this country are automatic consequences of a guilty plea, it is not enough to advise noncitizen client that he faces the possibility of deportation or exclusion).

It is undisputed that a conviction for an aggravated felony results in automatic deportation or exclusion from the country. 8 U .S.C. § 1227(a)(2)(A)(iii) (2005) (stating that an alien “admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is … convicted of an aggravated felony”); see Martinez, 2012 WL 1868492, at *4. It is also undisputed that the offense of assault of a public servant is an aggravated felony for federal immigration law purposes. See 8 U .S.C. § 1101(a)(43) (stating that a “crime of violence” is an aggravated felony); 18 U.S.C. § 16(a) (2000) (defining “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”); TEX. PENAL CODE ANN. § 22.01(a) (West 2011) (defining “assault” offense to include causing or threatening to cause bodily injury to another). And it is undisputed that when a defendant is placed on deferred adjudication and some form of punishment is assessed, the deferred adjudication is a “conviction” for federal immigration law purposes. Martinez, 2012 WL 1868492, at *4 (citing 8 U.S.C. § 1101(a)(48)(A)).

Because the immigration consequences of a guilty plea to the assault offense in this case were clear, counsel’s duty under Padilla and Martinez was to give Olvera clear advice about those consequences. See Padilla, 130 S.Ct. at 1478, 1486-87; Martinez, 2012 WL 1868492, at *4-5; Moody, 991 S.W.2d at 858. The record supports Olvera’s argument that counsel did not satisfy his duty to give adequate advice about the immigration consequences. Counsel testified that he told Olvera he could be deported or denied reentry into this country, not that a guilty plea would result in automatic deportation and denial of reentry. Consequently, we conclude that Olvera satisfied his burden under the first prong of Strickland to show that counsel’s performance fell below an objective standard of reasonableness. See Padilla, 130 S.Ct. at 1478, 1486-87.

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