The Right to Effective Assistance of Counsel While Negotiating a Plea Bargain.

On October 2, 2018, in a precedential opinion, the Sixth Circuit Court of Appeals held that the right to effective assistance of counsel in a criminal case extends to the plea-bargaining process under the Sixth Amendment of the Constitution. The Court ruled an immigrant who is seeking to vacate a guilty plea based on the ineffective assistance of his criminal attorney does not necessarily have to show that but for the ineffective advice he would have gone to trial. It is enough to show that the immigrant would have negotiated a better plea deal with an effective advice, thus counsel’s performance was prejudicial to the immigrant’s case.

In the case, Daynel L. Rodriguez-Penton, a permanent resident who came to the United States from Cuba, pled guilty to conspiring to distribute oxycodone. He received a sentence of 121-months imprisonment, which was later reduced to 97 months. William M. Butler was Rodriguez-Penton’s attorney during the criminal case. Rodriguez-Penton testified that the attorney never advised him about the immigration consequences of a guilty plea, and certainly did not advise him that he can be and will be deported if he pleads guilty. The attorney testified that he did advise the client about the deportation in general but he thought that because Rodriguez-Penton was a permanent resident, he could not be deported and in any case, Cubans do not get deported that often. During the plea hearing the district court did not advise Rodriguez-Perez about the risk of deportation either.

With the help of a new attorney, Rodriguez-Penton filed a motion with the district court to vacate and set aside his sentence based on the ineffective assistance of his criminal attorney. The district court denied the motion based on the finding that Rodriguez-Penton was not prejudiced by his attorney’s advice because he testified that he would not have gone to trial no matter what. Absent showing of prejudice, Rodriguez-Penton could not prevail on his motion to vacate the criminal sentence, the district court ruled.

On appeal, the Sixth Circuit held that Rodriguez-Penton does not have to show that he would have rejected the plea deal and went to trial if it wasn’t for the ineffective advice of his criminal attorney. Rather, it is enough if Rodriguez-Penton can show that he would have negotiated a better plea deal, arguably one, which excludes the risk of deportation, if his attorney would have properly advised him about the deportation consequences. The Court cited to recent Supreme Court decisions, which expanded the right to effective counsel in criminal cases to include plea deal negotiations.

To prevail on an ineffective assistance of counsel in a criminal case, the immigrant-defendant must show two things: that counsel’s representation fell below an objective standard of reasonableness; and there is a reasonable probability the outcome of the plea process would have been different had he received competent advice.

In the past, to meet the second prong, an immigrant had to show that but for the ineffective advice he would have gone to trial. Based on the Court’s decision in the Rodriguez-Penton case, from now on, it is enough for an immigrant to show that but for the ineffective advice he would have obtained a better plea deal.

While there is no constitutional right to a plea offer, the right to effective assistance extends to the plea-bargaining process.  If you have been charged criminally, you are an immigrant, and are facing possible deportation, contact RaslanPla & Company, LLC.

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