Budziszewski v. Comm'r of Corr.

• Decision Date: 16 August 2016
• Docket Number: No. 19599.,19599.
• Citation: 142 A.3d 243,322 Conn. 504
• Court: Connecticut Supreme Court
• Parties: Piotr BUDZISZEWSKI v. COMMISSIONER OF CORRECTION.

322 Conn. 504

142 A.3d 243

Piotr BUDZISZEWSKI

v.COMMISSIONER OF CORRECTION.

No. 19599.

Supreme Court of Connecticut.

Argued March 29, 2016.

Decided Aug. 16, 2016.

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellant (respondent).

Damon A.R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, Wethersfield, for the appellee (petitioner).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.^*

ROGERS, C.J.

In this appeal, we consider what advice criminal defense counsel must give to a noncitizen client who is considering pleading guilty to a crime when federal law prescribes deportation as the consequence for a conviction. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court concluded that the federal constitution's guarantee of effective assistance of counsel requires criminal defense counsel to accurately advise a noncitizen client of the immigration consequences of pleading guilty to a crime, as described in federal law. Id., at 360, 368–69, 130 S.Ct. 1473. For crimes designated as aggravated felonies, including the crime at issue in the present case, federal law mandates deportation almost without exception. See id., at 363–64, 368, 130 S.Ct. 1473. We conclude that, for these types of crimes, Padilla requires counsel to inform the client about the deportation consequences prescribed by federal law. See id., at 374, 130 S.Ct. 1473. Because noncitizen clients will have different understandings of legal concepts and the English language, there are no precise terms or one-size-fits-all phrases that counsel must use to convey this message. Rather, courts reviewing a claim that counsel did not comply with Padilla must carefully examine all of the advice given and the language actually used by counsel to ensure that counsel explained the consequences set out in federal law accurately and in terms the client could understand. In circumstances when federal law mandates deportation and the client is not eligible for relief under an exception to that command, counsel must unequivocally convey to the client that federal law mandates deportation as the consequence for pleading guilty.

In this appeal, we also consider whether, in addition to advising the client what federal law mandates, Padilla requires counsel to also advise a client of the actual likelihood that immigration authorities will enforce that mandate. Although Padilla requires that counsel explain the meaning of federal law, it does not require counsel to predict whether or when federal authorities will pursue the client in order to carry out the deportation proceedings required by law. Nevertheless, if counsel chooses to give advice or the client inquires about federal enforcement practices, counsel must still convey to the client that once federal authorities apprehend the client, deportation will be practically inevitable under federal law.

In light of these clarifications, we reverse the judgment of the habeas court in the present case and remand the case to that court for a new trial applying these standards.

I

The petitioner, Piotr Budziszewski, is a Polish national who emigrated to the United States and later became a lawful permanent resident. Several years after arriving in the United States, he twice sold narcotics to undercover police officers, leading to his arrest on various drug offenses.

The state charged the petitioner with two counts of selling narcotics by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b), and two counts of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a–279 (a). The charges carried a minimum sentence of five years imprisonment with a maximum term of twenty years. General Statutes § 21a–278 (b).

The petitioner hired Attorney Gerald Klein to defend him. Klein negotiated a plea agreement with the state that would allow the petitioner to plead guilty to one count of possession of a controlled substance with intent to sell in violation of General Statutes § 21a–277 (a). This offense did not carry a mandatory minimum period of incarceration; see General Statutes § 21a–277 (a) ; and the state agreed to a sentence recommendation of five years of incarceration, execution suspended after no more than one year. The petitioner accepted the plea arrangement and the trial court sentenced the petitioner to a period of incarceration of five years, execution suspended after ninety days, and a period of probation.

After serving forty-five days of incarceration, the state released the petitioner from custody. Because of his felony conviction, federal authorities detained the petitioner after his release from state custody and began proceedings to remove him from the country. Federal authorities entered a final order of removal and the petitioner exhausted all avenues for appeal from that order.

After federal authorities had detained the petitioner, he filed the habeas petition at issue in the present case. He claimed, among other things, that Klein, his criminal trial counsel, rendered ineffective assistance by failing to advise him of the immigration consequences of his guilty plea, as required by Padilla v. Kentucky, supra, 559 U.S. at 374, 130 S.Ct. 1473, and he asked that his conviction be vacated.

The habeas court held a trial on the petition. At trial, Klein testified about his representation of the petitioner and the immigration advice he gave. He could not remember all of his conversations with the petitioner on the subject, but he did testify about those portions he remembered and the content of the advice he usually gives to noncitizen clients in circumstances similar to those of the petitioner. The record shows that in accordance with his usual practice, Klein may have advised the petitioner, among other things, that “if [the law is] strictly enforced, it will result in [deportation], but it's been my experience that [the law is] not strictly enforced. So you take a chance.” The petitioner also testified at the hearing, but he asserted that Klein did not provide any advice whatsoever about immigration consequences. The petitioner further explained that had he known of the likelihood of deportation, he would not have pleaded guilty, but would have insisted on going to trial and risking a lengthier period of incarceration.

The habeas court granted the petition and ordered that the petitioner's conviction be vacated. In its memorandum of decision, the habeas court addressed the petitioner's claim by first setting out the legal standard under Padilla. The habeas court determined that the petitioner's conviction qualified as an “ ‘aggravated felony’ ” under federal immigration law, making the petitioner subject to deportation, and further determined that the petitioner did not fall within any exception or exclusion that would allow him to remain in the United States. As a result, the court concluded that Klein was required to inform the petitioner that his plea of guilty to an aggravated felony made him “subject to mandatory deportation....” After setting forth the legal standard, the habeas court described and quoted different parts of Klein's habeas testimony, noting several times that the quoted portions failed to contain the specific warning that “the plea would subject the petitioner to mandatory deportation....” The habeas court explained its findings and conclusions as follows: “Although the court does not credit the petitioner's claim that there was never any discussion about the immigration consequences of his plea during Attorney Klein's representation, the court does find, when viewing the totality of the petitioner's testimony with that of Attorney Klein's, that what minimal discussion they did have failed to contain the specific advice from counsel required under Padilla that the plea would subject the petitioner to mandatory deportation under [f]ederal law.” Other than its statement that Klein's advice fell short of the Padilla standard, the habeas court did not make any findings about the content of Klein's advice to the petitioner, nor did it identify which parts, if any, it credited from the petitioner's and Klein's testimony. After concluding that Klein's advice was deficient, the habeas court went on to conclude that Klein's deficient advice prejudiced the petitioner, leading it to grant the petitioner habeas relief.

This appeal by the respondent, the Commissioner of Correction, followed.

II

A

On appeal, the respondent claims that the habeas court improperly interpreted and applied the standards set forth in Padilla. This claim presents a question of law over which we exercise plenary review. Anderson v. Commissioner of Correction, 313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v. Semple, ––– U.S. ––––, 135 S.Ct. 1453, 191 L.Ed.2d 403 (2015). According to the respondent, Padilla requires only that counsel advise a client of a “heightened risk” of deportation, not that federal law mandates deportation. We disagree.

In Padilla v. Kentucky, supra, 559 U.S. at 369, 130 S.Ct. 1473, the United States Supreme Court concluded that the federal constitution's guarantee of effective assistance of counsel requires defense counsel to accurately advise a noncitizen client of the immigration consequences of a guilty plea. In reaching this conclusion, the Supreme Court acknowledged that the precise advice counsel must give depends on the clarity of the consequences specified by federal immigration law. Id. The precise consequences depend on a number of factors, including the crime committed, the client's criminal history and immigration status, and in some circumstances the exercise of discretion by federal authorities. Id., at 368–69, 130 S.Ct. 1473 ; see also id. at 377–78, 130 S.Ct. 1473 (Alito, J.,...