Russell Abrutyn

Abrutyn Law PLLC

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Berkley, MI 48072


Thursday, December 9, 2010

Ohio appellate court limits Padilla

State v. Bains, 2010 WL 4286167 (Ohio Court of Appeals, Oct. 21, 2010).


In Bains, the defendant, a non-U.S. citizen, pleaded guilty to attempted deception to obtain a dangerous drug.  He paid a $50 fine. 


As part of the plea colloquy, the judge advised the defendant several times that there could be serious immigration consequences as a result of the plea and offered to give the defendant time to consider this possibility.  Shortly after the plea, the defendant's attorney sent him a letter advising him to consult with an immigration attorney concerning possible removal proceedings. 


Two years later, removal proceedings were initiated.  And four years after that, the defendant moved to withdraw his plea on the grounds that his attorney misinformed him regarding the immigration consequences of his plea.


The Ohio court noted that the immigration consequences of the conviction were clear.  This would seem to trigger Padilla's requirement that the defense counsel advise the defendant of those clear consequences.  See Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  The Ohio court seems to have found that the trial court's strong advisals satisfied the defense counsel's duties to advise his or client.  The court found that these advisals trumped the affirmative misadvice allegedly given by defense counsel during the plea colloquy, although the court did not conduct an inquiry into whether the counsel actually whispered to the defendant that he had nothing to worry about.


The decision can also be more narrowly held to rest on a determination of diligence in that as of October 2003, years before the initiation of removal proceedings, the defendant was on notice of the potential immigration consequences and should have sought to withdraw his plea then and not now.


The court also found no prejudice to the defendant because the felony charges were reduced to a misdemeanor as part of the plea negotiations.

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