Budziszewski v. Commissioner of Correction ( 2016 )

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PIOTR BUDZISZEWSKI v. COMMISSIONER OF
CORRECTION
(SC 19599)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued March 29—officially released August 16, 2016
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Adrienne Maciulewski, deputy
assistant state’s attorney, for the appellant
(respondent).
Damon A. R. Kirschbaum, with whom, on the brief,
was Vishal K. Garg, for the appellee (petitioner).
Opinion
ROGERS, C. J. In this appeal, we consider what
advice criminal defense counsel must give to a nonciti-
zen client who is considering pleading guilty to a crime
when federal law prescribes deportation as the conse-
quence for a conviction. In Padilla v. Kentucky, 559
U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the
United States Supreme Court concluded that the federal
constitution’s guarantee of effective assistance of coun-
sel requires criminal defense counsel to accurately
advise a noncitizen client of the immigration conse-
quences of pleading guilty to a crime, as described in
federal law. Id., 360, 368–69. For crimes designated as
aggravated felonies, including the crime at issue in the
present case, federal law mandates deportation almost
without exception. See id., 363–64, 368. We conclude
that, for these types of crimes, Padilla requires counsel
to inform the client about the deportation consequences
prescribed by federal law. See id., 374. Because nonciti-
zen clients will have different understandings of legal
concepts and the English language, there are no precise
terms or one-size-fits-all phrases that counsel must use
to convey this message. Rather, courts reviewing a
claim that counsel did not comply with Padilla must
carefully examine all of the advice given and the lan-
guage actually used by counsel to ensure that counsel
explained the consequences set out in federal law accu-
rately and in terms the client could understand. In cir-
cumstances when federal law mandates deportation
and the client is not eligible for relief under an exception
to that command, counsel must unequivocally convey
to the client that federal law mandates deportation as
the consequence for pleading guilty.
In this appeal, we also consider whether, in addition
to advising the client what federal law mandates, Padi-
lla requires counsel to also advise a client of the actual
likelihood that immigration authorities will enforce that
mandate. Although Padilla requires that counsel
explain the meaning of federal law, it does not require
counsel to predict whether or when federal authorities
will pursue the client in order to carry out the deporta-
tion proceedings required by law. Nevertheless, if coun-
sel chooses to give advice or the client inquires about
federal enforcement practices, counsel must still con-
vey to the client that once federal authorities apprehend
the client, deportation will be practically inevitable
under federal law.
In light of these clarifications, we reverse the judg-
ment of the habeas court in the present case and remand
the case to that court for a new trial applying these
standards.
I
The petitioner, Piotr Budziszewski, is a Polish
national who emigrated to the United States and later
became a lawful permanent resident. Several years after
arriving in the United States, he twice sold narcotics
to undercover police officers, leading to his arrest on
various drug offenses.
The state charged the petitioner with two counts of
selling narcotics by a person who is not drug-dependent
in violation of General Statutes § 21a-278 (b), and two
counts of possession of a narcotic substance with intent
to sell in violation of General Statutes § 21a-279 (a).
The charges carried a minimum sentence of five years
imprisonment with a maximum term of twenty years.
General Statutes § 21a-278 (b).
The petitioner hired Attorney Gerald Klein to defend
him. Klein negotiated a plea agreement with the state
that would allow the petitioner to plead guilty to one
count of possession of a controlled substance with
intent to sell in violation of General Statutes § 21a-277
(a). This offense did not carry a mandatory minimum
period of incarceration; see General Statutes § 21a-277
(a); and the state agreed to a sentence recommendation
of five years of incarceration, execution suspended
after no more than one year. The petitioner accepted
the plea arrangement and the trial court sentenced the
petitioner to a period of incarceration of five years,
execution suspended after ninety days, and a period
of probation.
After serving forty-five days of incarceration, the
state released the petitioner from custody. Because of
his felony conviction, federal authorities detained the
petitioner after his release from state custody and began
proceedings to remove him from the country. Federal
authorities entered a final order of removal and the
petitioner exhausted all avenues for appeal from that
order.
After federal authorities had detained the petitioner,
he filed the habeas petition at issue in the present case.
He claimed, among other things, that Klein, his criminal
trial counsel, rendered ineffective assistance by failing
to advise him of the immigration consequences of his
guilty plea, as required by Padilla v. Kentucky, supra,
559 U.S. 374, and he asked that his conviction be
vacated.
The habeas court held a trial on the petition. At trial,
Klein testified about his representation of the petitioner
and the immigration advice he gave. He could not
remember all of his conversations with the petitioner
on the subject, but he did testify about those portions
he remembered and the content of the advice he usually
gives to noncitizen clients in circumstances similar to
those of the petitioner. The record shows that in accor-
dance with his usual practice, Klein may have advised
the petitioner, among other things, that ‘‘if [the law is]
strictly enforced, it will result in [deportation], but it’s
been my experience that [the law is] not strictly
enforced. So you take a chance.’’ The petitioner also
testified at the hearing, but he asserted that Klein did
not provide any advice whatsoever about immigration
consequences. The petitioner further explained that had
he known of the likelihood of deportation, he would
not have pleaded guilty, but would have insisted on
going to trial and risking a lengthier period of incar-
ceration.
The habeas court granted the petition and ordered
that the petitioner’s conviction be vacated. In its memo-
randum of decision, the habeas court addressed the
petitioner’s claim by first setting out the legal standard
under Padilla. The habeas court determined that the
petitioner’s conviction qualified as an ‘‘ ‘aggravated fel-
ony’ ’’ under federal immigration law, making the peti-
tioner subject to deportation, and further determined
that the petitioner did not fall within any exception or
exclusion that would allow him to remain in the United
States. As a result, the court concluded that Klein was
required to inform the petitioner that his plea of guilty to
an aggravated felony made him ‘‘subject to mandatory
deportation . . . .’’ After setting forth the legal stan-
dard, the habeas court described and quoted different
parts of Klein’s habeas testimony, noting several times
that the quoted portions failed to contain the specific
warning that ‘‘the plea would subject the petitioner to
mandatory deportation . . . .’’ The habeas court
explained its findings and conclusions as follows:
‘‘Although the court does not credit the petitioner’s
claim that there was never any discussion about the
immigration consequences of his plea during Attorney
Klein’s representation, the court does find, when view-
ing the totality of the petitioner’s testimony with that
of Attorney Klein’s, that what minimal discussion they
did have failed to contain the specific advice from coun-
sel required under Padilla that the plea would subject
the petitioner to mandatory deportation under [f]ederal
law.’’ Other than its statement that Klein’s advice fell
short of the Padilla standard, the habeas court did not
make any findings about the content of Klein’s advice
to the petitioner, nor did it identify which parts, if any,
it credited from the petitioner’s and Klein’s testimony.
After concluding that Klein’s advice was deficient, the
habeas court went on to conclude that Klein’s deficient
advice prejudiced the petitioner, leading it to grant the
petitioner habeas relief.
This appeal by the respondent, the Commissioner of
Correction, followed.
II
A
On appeal, the respondent claims that the habeas
court improperly interpreted and applied the standards
set forth in Padilla. This claim presents a question of
law over which we exercise plenary review. Anderson
v. Commissioner of Correction, 313 Conn. 360, 375,
98 A.3d 23 (2014), cert. denied sub nom. Anderson v.
Semple, U.S. , 135 S. Ct. 1453, 191 L. Ed. 2d 40
(2015). According to the respondent, Padilla requires
only that counsel advise a client of a ‘‘heightened risk’’
of deportation, not that federal law mandates deporta-
tion. We disagree.
In Padilla v. Kentucky, supra, 559 U.S. 369, the United
States Supreme Court concluded that the federal consti-
tution’s guarantee of effective assistance of counsel
requires defense counsel to accurately advise a nonciti-
zen client of the immigration consequences of a guilty
plea. In reaching this conclusion, the Supreme Court
acknowledged that the precise advice counsel must give
depends on the clarity of the consequences specified by
federal immigration law. Id. The precise consequences
depend on a number of factors, including the crime
committed, the client’s criminal history and immigra-
tion status, and in some circumstances the exercise of
discretion by federal authorities. Id., 368–69; see also
id. 377–78 (Alito, J., concurring). Given these nuances
in the law, the Supreme Court recognized that there
may be occasions when the consequences of a guilty
plea will be ‘‘unclear or uncertain’’ to competent
defense counsel. Id., 369. In those circumstances, coun-
sel ‘‘need do no more than advise a noncitizen client that
pending criminal charges may carry a risk of adverse
immigration consequences.’’ Id. But when the immigra-
tion consequences under federal law are clearly dis-
cernable, Padilla requires counsel to accurately advise
his client of those consequences. Id. For some convic-
tions, federal law calls for deportation, subject to lim-
ited exceptions. See id., 368–69. In these circumstances,
because the likely immigration consequences of a guilty
plea are ‘‘truly clear,’’ counsel has a duty to inform his
client of the deportation consequences set by federal
law. Id., 369.
In the present case, the legal consequences faced by
the petitioner were clear, and federal law mandated
deportation. The petitioner was convicted of a drug
trafficking offense, which is designated as an ‘‘aggra-
vated felony’’ under federal immigration law. 8 U.S.C.
§ 1101 (43) (B) (2012). Federal law calls for deportation
for aggravated felony convictions, subject to limited
exceptions, which the parties agree do not apply in the
petitioner’s case. See 8 U.S.C. § 1227 (a) (2) (A) (iii)
(2012). Because federal law called for deportation for
the petitioner’s conviction, his counsel was required to
unequivocally convey to the petitioner that federal law
mandated deportation as the consequence for pleading
guilty. Warning of only a ‘‘heightened risk’’ of deporta-
tion, as the respondent suggests is sufficient, would not
accurately characterize the law.1
In reaching this conclusion, however, we emphasize
that there are no fixed words or phrases that counsel
must use to convey this information, and courts
reviewing Padilla claims must look to the totality of
counsel’s advice, and the language counsel actually
used, to ensure that counsel accurately conveyed the
severity of the consequences under federal law to the
client in terms the client could understand. In formulat-
ing its standard, Padilla did not prescribe any fixed
words or phrases that counsel must use when advising
the client of immigration consequences, but recognized
that the content of counsel’s advice will depend signifi-
cantly on the client’s circumstances. Padilla v. Ken-
tucky, supra, 559 U.S. 368–69. Because each client’s
legal situation and ability to understand the English
language and legal concepts will vary, courts applying
Padilla have resisted identifying ‘‘magic words’’ that
counsel must use or any ‘‘safe harbor’’ language that
would presumptively satisfy counsel’s obligations, simi-
lar to the warnings police officers must give under
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). See, e.g., State v. Shata, 364
Wis. 2d 63, 98, 868 N.W.2d 93 (2015); see also Common-
wealth v. DeJesus, 468 Mass. 174, 181 n.5, 9 N.E.3d 789
(2014) (declining to ‘‘dictate the precise language that
must be employed [under Padilla], as each case will
present different circumstances,’’ including client’s
‘‘ability to comprehend or understand English’’ and
nuances of client’s specific legal situation under state
and federal law); Chacon v. State, 409 S.W.3d 529, 537
(Mo. App. 2013) (‘‘Padilla does not require that counsel
use specific words to communicate to a defendant the
consequences of entering a guilty plea’’). Instead, the
focus of the court’s inquiry must be on the essence of
the information conveyed to the client to ensure that
counsel clearly and accurately informed the client of
the immigration consequences under federal law in
terms the client could understand. See Chacon v. State,
supra, 537; see also Commonwealth v. DeJesus, supra,
181 n.5. This requires the court to consider the totality
of the advice given by counsel, make findings about
what counsel actually told the client, and then deter-
mine whether, based on those findings, the petitioner
met his burden to prove that counsel’s advice failed to
convey the information required under Padilla.
B
There is also evidence in the present case that the
petitioner’s counsel may have given advice casting
doubt on the likelihood that federal authorities would
actually apprehend and deport the petitioner despite
the clarity of the law, and the parties disagree whether
giving this type of advice violates Padilla. We therefore
must also consider the impact of any advice about the
likelihood of enforcement advice on counsel’s duty
under Padilla.
Padilla requires counsel to advise a client about the
deportation consequences as set forth in federal law,
but it does not address whether criminal defense coun-
sel must also advise a client about the actual likelihood
that federal authorities will apprehend the client and
carry out the consequences provided for by law. See,
e.g., State v. Shata, supra, 364 Wis. 2d 99 (‘‘[t]he Padilla
[c]ourt did not require that criminal defense lawyers
function as immigration lawyers or be able to predict
what the executive branch’s immigration policies might
be now or in the future’’). Indeed, predicting the exact
likelihood of enforcement may prove difficult for a crim-
inal defense attorney who has only limited experience,
if any, with immigration authorities. Even when the
immigration laws are clear as written, actual enforce-
ment may vary. Encarnacion v. State, 295 Ga. 660, 663,
763 S.E.2d 463 (2014) (‘‘[w]e recognize that, except for
death and taxes, one hundred percent certainty does
not exist in this world and one can always imagine
exceptional circumstances in which, despite the clear
mandate of 8 U.S.C. § 1227 (a), some noncitizens con-
victed of an aggravated felony might avoid removal’’).
Because of oversight or lax enforcement, some convicts
undoubtedly manage to escape notice of the federal
authorities. See id.; see also Commonwealth v. Escobar,
70 A.3d 838, 841 (Pa. Super. 2013). In addition, immigra-
tion enforcement policies and practices often differ
between executive administrations. See, e.g., State v.
Shata, supra, 95 n.16 (‘‘[s]ince at least the 1960s, the
federal executive branch has gone back and forth in
adopting and rescinding policies regarding deferred
action on deportation’’). A period of either relaxed or
strict enforcement may not last long, meaning that
counsel’s advice on current enforcement practices will
have little meaning as policies change after the client
accepts a plea deal.
Given the difficulty in predicting enforcement prac-
tices, counsel is not required to provide the client with
predictions about whether or when federal authorities
will apprehend the client and initiate deportation pro-
ceedings. Nevertheless, if counsel chooses to give
advice or if the client inquires about federal enforce-
ment practices, counsel must still impress upon the
client that once federal authorities apprehend the client,
deportation will be practically inevitable under federal
law. See Commonwealth v. DeJesus, supra, 468 Mass.
181 (counsel must explain to client ‘‘that, if [f]ederal
authorities apprehended the defendant, deportation
would be practically inevitable’’).
In sum, our conclusions result in a two step inquiry
for a court reviewing a claim that counsel’s erroneous
enforcement advice violated Padilla. First, the court
must determine whether counsel complied with Padilla
by explaining to the client the deportation conse-
quences set forth in federal law. The advice must be
accurate, and it must be given in terms the client could
comprehend. If the petitioner proves that counsel did
not meet these standards, then counsel’s advice may
be deemed deficient under Padilla. If counsel gave the
advice required under Padilla, but also expressed doubt
about the likelihood of enforcement, the court must
also look to the totality of the immigration advice given
by counsel to determine whether counsel’s enforcement
advice effectively negated the import of counsel’s
advice required under Padilla about the meaning of
federal law.
III
In light of our clarifications concerning the proper
standard, we conclude that we must reverse the habeas
court’s judgment and remand the case for a new trial.
The habeas court made no findings of fact regarding
what Klein actually told the petitioner about what fed-
eral law mandated or what Klein might have stated
about the likelihood of enforcement. Furthermore,
there was no separate consideration by the habeas court
about whether counsel’s advice regarding enforcement
negated the import of counsel’s advice about what fed-
eral law mandated regarding deportation.2
As a result, we are unable to review the habeas court’s
application of the standard, nor can we perform our
own analysis on appeal. In some cases, we are able
to resolve an appeal without reversal by applying the
correct legal standard to the facts found by the habeas
court. See Anderson v. Commissioner of Correction,
supra, 313 Conn. 375 (noting that we exercise a plenary
review over the application of law to facts found by
the habeas court). In the present case, however, we
cannot do so because the habeas court made virtually
no findings about the content of the advice given by
Klein. The court found only that Klein’s advice did not
contain the specific warning that a plea would ‘‘subject
the petitioner to mandatory deportation,’’ but did not
otherwise make any findings about what Klein actually
told the petitioner. And although the habeas court
quoted portions of Klein’s testimony in its memorandum
of decision, it did not state whether it credited any of
that testimony, and most of the court’s quotations do
not actually appear in the transcript of the hearing pro-
vided to this court.
In addition, we cannot perform our own review of the
testimony to determine what Klein told the petitioner
because the testimony is unclear on this point, and is
disputed. Klein testified that he recalled certain conver-
sations with the petitioner about immigration conse-
quences, but he could not remember everything that
he told the petitioner. Klein also testified about what
he typically tells clients in a position similar to that of
the petitioner, but without any indication of whether
he gave that same advice to the petitioner. For his
part, the petitioner testified that Klein did not tell him
anything about immigration consequences. Klein’s
lapse of memory, his uncertainty about precisely what
he told the petitioner, and the petitioner’s contrary testi-
mony that Klein said nothing about immigration conse-
quence present issues of fact that we cannot resolve
on appeal. See Gould v. Commissioner of Correction,
301 Conn. 544, 566, 22 A.3d 1196 (2011). On remand,
therefore, the habeas court must make findings of fact
about what Klein actually told the petitioner and then
assess whether, based on those findings, the petitioner
has proven that Klein’s advice violated the requirements
of Padilla, as clarified by our decision in the present
case.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
* This appeal was originally scheduled to be argued before a panel of
this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh, McDonald, Espinosa and Robinson. Although Justices Eveleigh
and Espinosa were not present when the case was argued before the court,
they have read the briefs and appendices, and listened to a recording of
oral argument prior to participating in this decision.
1
Other courts applying Padilla in circumstances similar to the present
case have reached similar conclusions. See, e.g., United States v. Al Halabi,
633 Fed. Appx. 801, 802–803 (2d Cir. 2015); United States v. Rodriguez-
Vega, 797 F.3d 781, 786 (9th Cir. 2015); Encarnacion v. State, 295 Ga. 660,
663, 763 S.E.2d 463 (2014); Commonwealth v. DeJesus, 468 Mass. 174, 180–81,
9 N.E.3d 789 (2014); but see State v. Shata, 364 Wis. 2d 63, 101, 868 N.W.2d
93 (2015) (accepting as adequate counsel’s warning of ‘‘strong chance’’
of deportation).
2
There are two other aspects of the habeas court’s analysis that concern
us. Although we have determined that the habeas court’s judgment must
be reversed, we address those aspects here because the matter will be
returned to the court for a new trial, and these issues may arise on remand.
First, it appears that when considering whether counsel advised the peti-
tioner of the consequences specified in federal law, the habeas court may
have been looking for evidence that counsel used a specific phrase, and did
not consider the possibility that counsel might have given the required
advice using simpler and more direct terms that the client could more easily
grasp. In its memorandum of decision, the habeas court quoted portions of
Klein’s testimony, apparently looking for evidence that Klein had ‘‘specifi-
cally warned the petitioner that the plea would subject him to mandatory
deportation,’’ and the court concluded that Klein’s advice was deficient
because nothing in his testimony showed that he gave ‘‘the specific advice
from counsel required under Padilla that the plea would subject the peti-
tioner to mandatory deportation under [f]ederal law.’’ (Emphasis added.)
Although warning a client that his plea makes him ‘‘subject to mandatory
deportation’’ may be sufficient to satisfy Padilla, it is not necessary that
counsel use this or even a similar phrase to convey the meaning of federal
law to the client. Indeed, for a client who speaks limited English, and has
little understanding about legal concepts, the phrase ‘‘subject to mandatory
deportation’’ may have little practical meaning, and a simpler phrasing of
the immigration consequences might better advise a client of the meaning
of federal law. Commonwealth v. DeJesus, supra, 468 Mass. 181 n.5. There
is evidence in the record that Klein may have told the petitioner that if
immigration authorities strictly enforced the law, it would result in deporta-
tion, but the habeas court did not discuss this advice in its decision. We
take no position on whether this advice was actually given or whether it
was sufficient, but we emphasize it to demonstrate that the habeas court
did not appear to consider whether this type of advice was sufficient under
the circumstances to adequately warn the petitioner of the deportation
consequences under federal law.
Second, we are concerned with the habeas court’s apparent allocation of
the burden of proof. In its memorandum of decision, the habeas court
appeared to place the burden on Klein by reviewing his testimony for evi-
dence he had used a specific phrase when advising the petitioner, and then
concluding the petitioner was entitled to relief because, based on its review
of Klein’s testimony, ‘‘there is nothing from which this court can reasonably
find that he ever gave the petitioner direct and unequivocal advice that a
[guilty] plea . . . would expose him to mandatory deportation under [f]ed-
eral law.’’ In addition, the habeas court appeared to fault Klein for being
unable to remember all of the advice he gave the petitioner, implying at
times that because Klein could not remember whether he gave certain
advice, he must not have done so. Of course, it was not Klein’s burden, nor
the respondent’s, to prove precisely what advice Klein had given and that
the advice complied with Padilla. Rather, the habeas court must presume
that counsel acted competently and the burden lies with the petitioner, as
the party asserting ineffectiveness, to overcome this presumption and prove
that Klein failed to give the required warning. Johnson v. Commissioner of
Correction, 285 Conn. 556, 576–77, 941 A.2d 248 (2008).