New Court of Appeals Decision decides that Padilla is not retroactive

Yesterday the North Carolina Court of Appeals decided State v. Alshaif (No. COA11-817, Feb. 21, 2012). 

In that case, the issue presented was whether, under Padilla v. Kentucky, ___  U.S. _ , 176 L.Ed. 2d 284 (March 31, 2010), a defendant’s guilty plea could be vacated, where the defense attorney failed to advise the defendant that his plea to a  state charge of assault with a deadly weapon almost certainly would result in his being deported.   Padilla was decided in 2010.  In that case, the US Supreme Court decided in a 7-2 vote, that the attorney’s failure to advise the defendant of serious and highly likely immigration consequences of the plea, was grounds to vacate the conviction.

In Alshaif the NC Court of Appeals decided that the defendant in that case could not use Padilla, which was a 2010 case, to vacate a 2007 plea and conviction.  The Court held that the “rule of retroactivity” did not apply because the holding in Padilla did not meet the definition of a “watershed rule of criminal procedure, implicating the fundamental fairness and accuracy of the criminal proceeding.” 

The Court concluded that Padilla did not reflect a “watershed” rule because its use was not necessary to prevent “an impermissibly large risk of an inaccurate conviction” and the rule did not alter general understanding of the bedrock procedural elements essential to the fairness of the proceeding.  

Without going into great detail, suffice it to say that to the defendant, an uninformed plea results in a grossly unfair and inaccurate conviction.  Without full knowledge of the consequences of his plea, the defendant is placed in the same position that a patient would be placed in this situation:   assume the patient has a fatal disease, and there are two types of medicines that could be used.  Both are effective, but one has immensely serious side effects that can leave him crippled or, as we say in the law, suffering from collateral consequences.   The doctor could learn of these consequences, but argues that the only important issue is whether or not the patient is going to be cured of the primary disease.  

It is absurd to argue that an injured patient (due to the failure to warn) has no claim against the doctor for failing to adequately warn him; by the same token, the defendant in Alshaif should have the right to argue that his lawyer made an error so grave that it invalidates his decision to plead guilty.   The rule that denies retroactivity does so on the general ground that at a certain (arbitrary) point, Courts are just going to say that shoddy legal advice is acceptable.  Where the result of such advice is deportation from the US, there is no justification for such a decision.

This issue will be litigated further, but the NC Supreme Court does not have to hear any appeal from the Ct of Appeals’ decision, although it may accept certiorari if it chooses to do so.  We hope it will; the lower court’s decision is indefensible.