Connecticut Criminal Lawyer Blog

Given the recent changes to the Immigration and Nationality Act, is it constitutionally adequate to simply state, at the time of the entrance of a guilty plea, that the plea "could" result in immigration consequences. More specifically, is it ineffective assistance of counsel if the attorney merely states that immigration consequences could result?

First, in order to establish ineffective assistance of counsel in the context of a guilty plea, a defendant must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial. United States v. Cuoto, 311 F.3d 179, 187 (2d Cir. 2002) .

The Second Circuit Court of Appeals has held that an attorney's failure to inform a defendant of the immigration consequences of a guilty plea does not constitute ineffective assistance of counsel, see United States v. Santelises, 476 F.2d 787, 704 (2d Cir. 1975) (per curiam), but that an attorney's affirmative misrepresentation about the deportation consequences of a guilty plea can constitute ineffective assistance, see Couto, 311 F.3d at 188.

In a case I recently argued before the Second Circuit Court of Appeals, the court followed the Santelises court's reasoning in holding that Petitioner was not denied effective assistance of counsel when his attorney advised him that his guilty plea could have immigration consequences. The court further reasoned that the statements "could result" in deportation and that he "may be deported" were not misleading but rather were an accurate statement about the situation. Thus, Petitioner was not denied ineffective assistance of counsel.

As general advice, before entering a plea, always check with counsel. The immigration consequences can be significant.

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If you have been convicted of a certain crime in Connecticut, then you have a criminal record. This means that anytime someone conducts a background check, they can see that you were convicted of a crime. This can have many adverse consequences including the loss of employment opportunities. So what can you do about this record? Is it permanent or can it be erased. The following will help you clear your background.

Expungement Pardon: You may apply to the Board for expungement (erasure of the official criminal record) THREE (3) YEARS after the date of the disposition of one’s most recent misdemeanor conviction and/or FIVE (5) YEARS after the date of the disposition of one’s most recent felony conviction. Please be aware that you cannot apply for expungement for one offense and not another, as only your full criminal history will be considered for an expungement pardon.

Expungement Pardon:Provisional Pardon: A provisional pardon is for employment purposes only and does not erase your criminal history. You may apply for a provisional pardon at any time, but if you are currently under any form of criminal justice supervision you are also required to submit a
Supervising Officer Questionnaire completed by your current parole/probation officer. That form can be obtained at www.ct.gov/doc/bopp. If you are applying for expungement, you must indicate on the application that you also wish to be considered for a provisional pardon in the event your petition for expungement is denied.

This is just general information and is never a substitute for sound legal advice from a Connecticut attorney. As always, when you are charged with a crime, seek the assistance of counsel.

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If you have received an offer from the state's attorney and are willing to enter a plea to the charge(s), Practice Book Sec. 39-19 provides the requirements for such a plea.

That section provides that the court shall not accept a plea without first addressing you personally in court. Next, the court must determine whether you fully understand: (1) nature of the charge(s); (2) mandatory minimums; (3) the fact that the statute does not permit the sentence to be suspended; (4) maximum possible sentence on the charge, including, if applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; (5) the fact that you have the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at trial you have the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate yourself.

This is general advice and may change depending on the facts of your case. As always, consult with an attorney when charged with a crime.

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If you have been charged with a crime and are considering whether to enter a plea to the charge(s), make sure you understand what to do before doing so. As a general note, most criminal cases in Connecticut result in a plea agreement. However, that does not mean that it is not important to know the procedure by which a plea is accepted. After all, you are giving up certain constitutional rights in entering the plea.

You may withdraw your plea of guilty or nolo contendere as a matter of right until the plea has been accepted by the court. See Connecticut Practice Book Sec. 39-26. After acceptance, the court shall allow you to withdraw upon proof of one of the following: the plea was accepted without substantial compliance with Practice Book Sec. 39-19; the plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; the sentence exceeds that specfied in a plea agreement which had been previosly accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered; the plea resulted from the denial of effective assistance of counsel; there was no factual basis for the plea; or the plea was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant. See Connecticut Practice Book Sec. 39-27.

As always, you should consult with a Connecticut attorney or lawyer when arrested or charged with a crime in Connecticut.

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