In a “where are they now”? moment, the Kentucky Court of Appeals issued a sort of follow-up opinion last Friday regarding one Jose Padilla, a criminl defendant indicted in Hardin County, Kentucky, who has become somewhat famous locally and nationally in the last couple years as the subject of the U.S. Supreme Court’s Opinion in Padilla v. Kentucky (2010). Folks practicing immigration law and criminal law definitely need no reminder of the impact of Padilla: the ruling was that a criminal defendant is entitled to be warned by his attorney of the possible immigration consequences of a guilty plea. If he can show that he was not so warned, and it was what the law regards as “prejudicial,” he may be abe to set aside his conviction.
So, following the U.S. Supreme Court’s decision, Mr. Padilla’s case took a trip back to the Kentucky Supreme Court, then back to Hardin Circuit Court, who ruled that even if Mr. Padilla could show that his trial attorney did not warn him of immigration consequences, he suffered no prejudice, and therefore would not get a chance at a new trial. That ruling prompted an appeal to the Kentucky Court of Appeals, who ruled that Padilla did, indeed, suffer prejudice and vacated his conviction. Now, this only means that Padilla can now stand trial– and face a possible ten-year sentence rather than the five years in his original plea (or, indeed, receive an acquittal). Incidentally, the Court also pointed out that Mr. Padilla is a forty-year legal permanent resident of the U.S. who served in the U.S. military in the VietNam conflict– but could still face deportation under current rules.
This is curious from a human perspective, because it has courts involved in trying to understand the weight an immigrant may place upon avoiding deportation. Indeed, even some very very small criminal sentences may subject a person to possible deportation, and even when they have resided here almost their entire life. It is a possible consequence whose weight is probably unparalleled among possible secondary consequences of a conviction. As the Court quoted Padilla in its Opinion, it was like “putting a gun to his head.”
By the way: our blogs are not intended as legal advice for any individual case– just general information.
