COMMONWEALTH OF KENTUCKY V. JOSE R. PADILLA
Annotate this Case
Download PDF
RENDERED ; JANUARY 24, 2008
TO BE PUBLISHED
,*ixpretne C-ourf u£ ~rufaL
2006-SC-000321-DG
D,
l ig-os
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
CASE N U M BER 2004-CA-001981
HARDIN CIRCUIT COURT NO . 01-CR-000517
V.
JOSE R . PADILLA
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING
This Court granted the Commonwealth's motion for discretionary review. It
seeks reversal of the Court of Appeals opinion remanding to the trial court for an
evidentiary hearing on Appellee's ineffective assistance of counsel claim pursuant to
RCr 11 .42.
Appellee Jose Padilla is a native of Honduras who has lived in this country for
decades. He served in the United States military during the Vietnam War. Padilla was
indicted by the Hardin County Grand Jury for trafficking in more than five pounds of
marijuana, possession of marijuana, possession of drug paraphernalia, and operating a
tractor/trailer without a weight and distance tax number . Padilla, represented by
counsel, moved to enter a guilty plea to the three drug-related charges, in exchange for
dismissal of the remaining charge, and a total sentence of ten years on all charges .
S,.
The plea agreement provided that Padilla would serve five years of his ten year
sentence, and would be sentenced to probation for the remaining five years . Final
judgment was entered October 4, 2002 .
On August 18, 2004, Padilla filed an RCr 11 .42 motion for post-conviction relief
alleging that his attorney was ineffective in misadvising him about the potential for
deportation as a consequence of his guilty plea. Padilla alleged that his counsel told
him that he "did not have to worry about immigration status since he had been in the
country so long." The Hardin Circuit Court denied the RCr 11 .42 motion on the basis
that a valid guilty plea does not require that the defendant be informed of every possible
consequence of a guilty plea. It reasoned that since Appellee's bond was changed
because he was suspected of being an illegal alien, he was aware of the possibility of
deportation, and the court noted that counsel did discuss the issue with him. The court
concluded that: "Padilla's counsel does not make a deportation decision and neither
does this Court."
On appeal, the Court of Appeals reversed the decision of the Hardin Circuit Court
and remanded the case for an evidentiary hearing . The Court of Appeals had the
benefit of this Court's recent decision in Fuartado v. Commonwealth,' which determined
that collateral consequences are outside the scope of representation required by the
Sixth Amendment and that failure of defense counsel to advise the defendant of
possible deportation consequences is not cognizable as a claim for ineffective
assistance of counsel. However, the majority of the Court of Appeals panel found this
case distinguishable from that unequivocal holding in Fuartado. The Court of Appeals
1 170 S.W .3d 384 (Ky. 2005) .
held that although collateral consequences do not have to be advised, "an affirmative
act of `gross misadvice' relating to collateral matters can justify post-conviction relief., ,2
The Court of Appeals concluded that counsel's wrong advice in the trial court regarding
deportation could constitute ineffective assistance of counsel . It remanded Appellee's
case to the trial court for an evidentiary hearing on his motion for RCr 11 .42 relief.
The Commonwealth argues that the Court of Appeals erred in distinguishing this
case from Fuartado , because the legal premise in that case was that deportation is a
collateral consequence of the criminal conviction . The Commonwealth argues that,
whether as the result of misadvice or the failure to advise, deportation is necessarily
collateral and not meaningfully distinguishable from other consequences such as losing
the right to vote or to possess firearms . The Commonwealth argues that the
defendant's understanding or misunderstanding of collateral matters is not implicated
with respect to the waiver of constitutional rights upon entering a guilty plea .
Appellee responds that the Commonwealth fails to recognize that although most
courts follow the collateral consequences rule, there is generally an exception for
erroneous advice on collateral consequences as opposed to no advice . Additionally,
Appellee disputes the Commonwealth's assertion that he is not facing deportation as a
result of the plea in this case, but because he is an illegal alien . Appellee insists there
is nothing in the record to substantiate that claim by the Commonwealth, but the record
instead shows that he was living in this country as a legal permanent resident even
though he had not obtained American citizenship . Padilla points to his valid Nevada
driver's license, his valid social security number, and his service in the United States
2 The court relied on Sparks v. Sowders , 852 F.2d 882, 885 (6th Cir. 1988) .
military during the Vietnam War. Padilla argues for a presumption of validity regarding
his immigration status given the evidence he points to in the record .
Appellee argues that relief is warranted on the basis of ineffective assistance
because his plea was substantially induced by his attorney's mistaken advice regarding
his immigration status . He argues that under Strickland v. Washington , he cannot be
bound to such
a plea, and cites Sparks v. Sowders4 as authorizing this result .
In
Sparks , the United States Court of Appeals for the Sixth Circuit held that "gross
misadvice" concerning parole eligibility can amount to ineffective assistance of counsel .
Sparks relied on Strader v. Garrison , which had determined that even though parole
eligibility is a collateral consequence of the guilty plea which an attorney does not have
to inform his client of, once an accused does inquire about it, it may constitute
ineffective assistance of counsel if he is misinformed about it and the erroneous advice
induces the plea.
Thus, in some courts a rule has emerged that an attorney who offers grossly
erroneous advice to a defendant which is material in inducing a guilty plea may have
rendered ineffective assistance of counsel. Appellee correctly asserts that a number of
jurisdictions which have held that failure to advise of a collateral matter is not ineffective
assistance have nevertheless held that there is an exception for cases where the
3 Strickland v. Washington , 446 U .S . 668, 104 S .Ct. 2052, 80 L.Ed .2d 674
(1984).
4 852 F.2d 882 (6th Cir. 1988) .
5 611 F2d 61, 65 (4th Cir. 1979) .
6 See, e .g., Cepulonis v. Ponte, 699 F.2d 573, 577 (1 st Cir .1983) (although
defendant need not be informed of the details of his parole eligibility, "misinformation
may be more vulnerable to constitutional challenge than mere lack of information") ;
Strader v. Garrison , 611 F.2d 61 at 65 ; Sparks v. Sowders , 852 F.2d at 885.
attorney misadvised the defendant on the consequences of his plea with regard to
immigration .'
We conclude that our unequivocal holding in Fuartado leaves Appellee without a
remedy pursuant to RCr 11 .42. As collateral consequences are outside the scope of
the guarantee of the Sixth Amendment right to counsel, it follows that counsel's failure
to advise Appellee of such collateral issue or his act of advising Appellee incorrectly
provides no basis for relief. In neither instance is the matter required to be addressed
by counsel, and so an attorney's failure in that regard cannot constitute ineffectiveness
entitling a criminal defendant to relief under Strickland v. Washington. Accordingly, we
reverse the Court of Appeals and reinstate the final judgment of the Hardin Circuit Court
denying RCr 11 .42 relief.
All sitting . Lambert, C.J., and Abramson, Minton, Noble and Scott, JJ ., concur.
Cunningham, J., dissents by separate opinion in which Schroder, J., joins.
7 State v. Rojas-Martinez , 125 P .3d 930, 935 (Utah 2005) ; United States v.
Kwan , 407 F .3d 1005 (9th Cir. 2005); Gonzalez v. State , 83 P.3d 921 (Or.Ct.App.
2004) ; United States v. Couto, 311 F.3d 179 (2nd Cir. 2002); Downs-Morgan v. United
States, 765 F .2d 1534, 1539-41 (11th Cir. 1985) .
COUNSEL FOR APPELLANT :
Jack Conway
Attorney General of Kentucky
David A. Smith
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLEE:
Timothy G. Arnold
Richard E. Neal
Assistant Public Advocates
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
RENDERED : JANUARY 24, 2008
TO BE PUBLISHED
,;vuyrrmr Courf of `rufurhV
'Pt
2006-SC-000321-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
CASE NUMBER 2004-CA-001981
HARDIN CIRCUIT COURT NO . 01-CR-000517
V.
JOSE R. PADILLA
APPELLEE
DISSENTING OPINION BY JUSTICE CUNNINGHAM
I respectfully dissent from the excellent writing of our distinguished Chief Justice .
I believe Fuartado v. Commonwealth is distinguishable in a small, but critical way
from the case before us. In that case, the Court of Appeals concluded that a defense
lawyer has no affirmative duty to inform his or her client of the impact that a guilty plea
will have on civil immigration status . I fully agree.
In this case, however, if Appellee's claim is to be believed - a prospect still
looming because no hearing was held - he specifically inquired of his counsel about this
very important matter. Appellee had been in the United States for decades and had
even served this country in Vietnam . Again, it is Appellee's contention that his counsel
gave him terribly wrong advice. The majority states that the matter of deportation is "not
a matter required to be addressed by counsel ." Again, I fully agree . But here, Appellee
raised the issue himself. Counsel could have just as easily, and responsibly, responded
that he did not know the answer. Counsel who gives erroneous advice to a client which
influences a felony conviction is worse than no lawyer at all. Common sense dictates
that such deficient lawyering goes to effectiveness . The allegations made by Appellee
may not be credible . But he was at least entitled to a hearing . 1 do not believe it is too
much of a burden to place on our defense bar the duty to say, "I do not know."
Accordingly, I would reverse and remand for a hearing.
Schroder, J., joins this dissenting opinion .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.