Hernandez v. State

• Decision Date: 16 April 2013
• Docket Number: Nos. SC11–941,SC11–1357.,s. SC11–941
• Citation: 124 So.3d 757
• Parties: Gabriel A. HERNANDEZ, Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Gabriel A. Hernandez, Respondent.
• Court: Florida Supreme Court

124 So.3d 757

Gabriel A. HERNANDEZ, Petitioner,

v.STATE of Florida, Respondent.

State of Florida, Petitioner,

v.Gabriel A. Hernandez, Respondent.

Nos. SC11–941, SC11–1357.

Supreme Court of Florida.

Nov. 21, 2012.

Rehearing Denied April 16, 2013.

Sui Chung, Immigration Law & Litigation Group, Miami, FL and Michael S. Vastine, St. Thomas University School of Law, Director Immigration Clinic, Assistant Professor of Law, Miami Gardens, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Richard L. Polin, Chief Assistant Attorney General and Timothy Rhys Morgan Thomas, Assistant Attorney General, Miami, FL; and Kristen Lynn Davenport and Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

Rebecca A. Sharpless, University of Miami School of Law, Immigration Clinic, Coral Gables, FL and Lana Chiariello, Americans for Immigrant Justice, Miami, FL, for Amicus Curiae, Lawyers Association American Immigration.

Beatriz A. Llorente, President, Miami Chapter of Florida Association of Criminal Defense Lawyers, Miami, FL; and Sonya Rudenstine, Gainesville, FL; and Michael Robert Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, FL, for Amicus Curiae Florida Association of Criminal Defense Lawyers.

PER CURIAM.

This case is before the Court for review of the decision of the Third District Court of Appeal in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011). In its decision, the Third District ruled upon the following questions, which it certified to be of great public importance:

1. DOES THE IMMIGRATION WARNING IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION–BASED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED ON THE U.S. SUPREME COURT'S DECISION IN PADILLA v. KENTUCKY [559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ]?

2. IF THE PRECEDING QUESTION IS ANSWERED IN THE NEGATIVE, SHOULD THE RULING IN PADILLA BE APPLIED RETROACTIVELY?

Hernandez, 61 So.3d at 1145–46.

We answer the certified questions in the negative.¹ We hold that, under Padilla, the trial court's warning to a defendant that “the plea may subject him or her to deportation,” as required by Florida Rule of Criminal Procedure 3.172(c)(8), does not preclude a finding of ineffective assistance of counsel. However, we also hold that the United States Supreme Court's holding in Padilla does not apply retroactively. Therefore, we approve the Third District's decision upholding the denial of Hernandez's postconviction motion.

I. BACKGROUND

The facts in this case were set forth in the Third District's decision below:

In April 2001, Hernandez (then 19 years old and a permanent resident alien cardholder) was arrested for the sale of lysergic acid diethylamide (LSD) to a confidential informant. Hernandez was born in Nicaragua, but entered the United States with his mother when he was under two years of age. On May 3, 2001, Hernandez was charged by information with a violation of section 893.13(1)(a) 1, Florida Statutes (2001), sale of a controlled substance, a second degree felony. The same day, an Assistant Public Defender was appointed to represent him, he was arraigned, and he entered a plea of guilty to the charge. From appointment of counsel to entry of the plea, about ten minutes elapsed. The plea was for one year of probation (with a possibility of termination after six months), completion of a substance abuse assessment and any recommended treatment, and the payment of $451.00 in costs. The maximum sentence of fifteen years in state prison was described to Hernandez by his attorney before he agreed to the plea.

The plea colloquy included Hernandez's affirmative response (in the presence of his appointed counsel) to the trial court's question: “Do you understand that if you are not an American citizen, the U.S. Government could use these charges against you in deportation proceedings?” Hernandez also acknowledged as part of the colloquy that he was able to speak, read, and write English. As part of his motion and as a proffer of his (now former) Assistant Public Defender's recollection of the immigration-related aspects of Hernandez's plea, Hernandez attached emails regarding the former Assistant's responses to a series of questions. The former Assistant acknowledged that he had no specific recollection of the case, as he had handled “thousands” of them while a Public Defender, but he reported that he confined his immigration-related advice to his clients to the fact “that a plea could/may affect their immigration status.” He did say that he “definitely did not discuss the immigration consequences with any outside immigration counsel and did not refer Hernandez to an immigration specialist.”

Evidence also was proffered to show that after this incident Hernandez had gone on to attain a number of achievements—a Bachelor of Arts Degree in 2005, and gainful employment as a computer network administrator for a Miami bank group. But unbeknownst to Hernandez in 2001, and apparently to his Assistant Public Defender as well, his plea and conviction was and is classified as an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), mandating his deportation under 8 U.S.C. § 1227(a)(2)(A)(iii), and (B)(i). The plea and conviction also bar Hernandez's eligibility for discretionary relief from deportability under 8 U.S.C. §§ 1182(h) or 1229b(a)(3).

Hernandez v. State, 61 So.3d at 1146–47 (footnote omitted).

On March 31, 2010 (nine years after Hernandez entered his plea), the United States Supreme Court in Padilla, 130 S.Ct. at 1478, held that defense counsel was deficient for failing to advise his client of mandatory deportation consequences for pleading guilty. Padilla, a long-time, permanent resident of the United States, pled guilty to drug-transportation charges after receiving advice from defense counsel “that [Padilla] ‘did not have to worry about immigration status since he had been in the country so long.’ ” Id. at 1478 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky.2008)).² However, after discovering that the plea “made his deportation virtually mandatory” under the Immigration and Nationality Act, Padilla filed a postconviction motion alleging ineffective assistance of counsel. Id. at 1478. The Supreme Court noted that Padilla's was “not a hard case in which to find deficiency: The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.” Id. at 1483.

Although Padilla's counsel had supplied incorrect advice, the United States Supreme Court specifically rejected the suggestion that it should limit its holding to cases that, like Padilla, involved affirmative misadvice. Id. at 1484. Instead, it ruled that defense counsel must, at a minimum, “inform her client whether his plea carries a risk of deportation.” Id. at 1486. Furthermore, the United States Supreme Court specified that, depending on the clarity and certainty of the deportation consequence, defense counsel's duty to advise under Padilla may be heightened:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

Id. at 1483 (footnote omitted).

Following the United States Supreme Court's decision in Padilla, Hernandez filed a postconviction motion alleging that his counsel failed to advise him that deportation was mandatory for the offense to which he pled nine years earlier and that he would not have pled guilty if he had known that it “would mandate [his] deportation without recourse.” Hernandez, 61 So.3d at 1147. The circuit court, relying on the Fourth District's decision in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010), summarily denied Hernandez's motion on the basis that the immigration consequences warning included in the plea colloquy pursuant to rule 3.172(c)(8)³ precluded Hernandez from establishing the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).⁴See id.

On appeal, the Third District affirmed the denial of Hernandez's postconviction motion on the separate basis that, in its view, Padilla does not apply retroactively. Id. at 1151. Additionally, the Third District expressed disagreement with the Fourth District's reasoning in Flores that the warning given by the trial court precludes any finding of prejudice resulting from counsel's deficiency. See id. at 1147. The Third District instead stated that, “[u]nder our reading of Padilla, constitutionally effective defense counsel is required ... to furnish a ‘ will subject you,’ not a ‘ may subject you’ warning to his or her client” where the deportation consequences of a plea are truly clear as a matter of law. Id. at 1148 (emphases added). Finally, the Third District certified the questions described earlier concerning rule 3.172(c)(8) deportation warnings and the retroactivity of Padilla.

II. ANALYSIS

A.

The United State Supreme Court's decision in Strickland, 466 U.S. at 687, 104 S.Ct. 2052, outlines two requirements for establishing an ineffective assistance of counsel claim:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as...