The Jersey Lawyer

This week, in the companion cases of State v. Gaitan and State v. Goulbourne, the New Jersey State Supreme Court held that the US Supreme Court’s ruling in Padilla v. Kentucky is not retroactive.    In Padilla, the United States Supreme Court held that a criminal defense lawyer renders ineffective assistance of counsel if he does not advise a non-citizen client of the immigration consequences of a guilty plea.  A major effect of Padilla was that many defendants who had already pled guilty prior to Padilla began filing applications for Post-Conviction Relief (“PCR”) asking for their convictions to be overturned, arguing that the criminal defense lawyer who represented them in their case did not advise them of the immigration consequences of their plea and therefore rendered ineffective assistance of counsel.  As a result of this week’s case, the NJ Supreme Court has essentially dashed the hopes of non-citizen defendants filing PCR applications.

The Sixth Amendment of the United States constitution provides, among other things, that a defendant in a criminal matter is entitled to the assistance of legal counsel.  In interpreting that provision, courts have long held that, not only is a defendant entitled to counsel, but that counsel must be effective.  Therefore, any criminal defendant who receives ineffective assistance of counsel has been deprived of his constitutional rights, and is entitled to a reversal of his conviction.   Under the US Supreme Court’s ruling in Padilla, a criminal defense lawyer renders constitutionally deficient counsel if he does not advise his client of potential immigration consequences of a guilty plea.  Various types of criminal convictions, including convictions for “aggravated felonies” and “crimes involving moral turpitude” can result in the deportation of the defendant if the defendant is not a citizen.  This is true even if the defendant is a permanent resident of the United States.

In Gaitan and Goulbourne the New Jersey Supreme Court held that “Padilla represents a new constitutional rule of law that, for Sixth Amendment purposes, is not entitled to retroactive application….”  The Court’s reason was that, prior to Padilla, New Jersey criminal defense lawyers would not have necessarily known or expected that they are constitutionally required to advise non-citizen clients of potential immigration consequences of guilty pleas.  Therefore, although it is clear that lawyers must advise clients of immigration consequences in cases going forward, it is not grounds to reverse convictions based on guilty pleas in the past.

It is critical for non-citizen criminal defendants to seek the counsel of a New Jersey criminal defense lawyer if they are charged with any type of offense in New Jersey.  Offenses that may seem relatively minor may have drastic immigration consequences if not handled properly.  For example, under New Jersey state law, shoplifting is treated as a relatively minor offense when the value of the merchandise taken is less than $200.  However, a shoplifting conviction involving any amount, even a miniscule amount, could be considered a “crime involving moral turpitude,” that would result in deportation.  Therefore, it would be wise for any non-citizen charged with any offense in New Jersey, whether it is in federal, state, or even municipal court, to seek the counsel of an attorney.