Com. v. Padilla, No. 2006-SC-000321-DG.

CourtKentucky Supreme Court
Writing for the CourtLambert
Citation253 S.W.3d 482
PartiesCOMMONWEALTH of Kentucky, Appellant, v. Jose R. PADILLA, Appellee.
Docket NumberNo. 2006-SC-000321-DG.
Decision Date24 January 2008
253 S.W.3d 482
COMMONWEALTH of Kentucky, Appellant,
v.
Jose R. PADILLA, Appellee.
No. 2006-SC-000321-DG.
Supreme Court of Kentucky.
January 24, 2008.
Rehearing Denied June 19, 2008.

[253 S.W.3d 483]

Jack Conway, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellant.

Timothy G. Arnold, Richard E. Neal, Assistant Public Advocates, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice LAMBERT.


This Court granted the Commonwealth's motion for discretionary review. It seeks reversal of the Court of Appeals opinion remanding to the trial court for an evidentiary hearing on Appellee's ineffective assistance of counsel claim pursuant to RCr 11.42.

Appellee Jose Padilla is a native of Honduras who has lived in this country for decades. He served in the United States military during the Vietnam War. Padilla was indicted by the Hardin County Grand Jury for trafficking in more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number. Padilla, represented by counsel, moved to enter a guilty plea to the three drug-related charges, in exchange for dismissal of the remaining charge, and a total sentence of ten years on all charges. The plea agreement provided that Padilla would serve five years of his ten year sentence, and would be sentenced to probation for the remaining five years. Final judgment was entered October 4, 2002.

On August 18, 2004, Padilla filed an RCr 11.42 motion for post-conviction relief alleging that his attorney was ineffective in misadvising him about the potential for deportation as a consequence of his guilty plea. Padilla alleged that his counsel told him that he "did not have to worry about immigration status since he had been in the country so long." The Hardin Circuit Court denied the RCr 11.42 motion on the basis that a valid guilty plea does not require that the defendant be informed of every possible consequence of a guilty plea. It reasoned that since Appellee's bond was changed because he was suspected of being an illegal alien, he was aware of the possibility of deportation, and the court noted that counsel did discuss the issue with him. The court concluded that: "Padilla's counsel does not make a deportation decision and neither does this Court."

On appeal, the Court of Appeals reversed the decision of the Hardin Circuit Court and remanded the case for an evidentiary hearing. The Court of Appeals had the benefit of this Court's recent decision in Commonwealth v. Fuartado,1 which determined that collateral consequences are outside the scope of representation required by the Sixth Amendment and that failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel. However, the majority of the Court of Appeals panel found this case distinguishable from that unequivocal holding in Fuartado. The Court of Appeals held that although collateral consequences do not have to be advised, "an affirmative act of `gross misadvice' relating to collateral matters can

253 S.W.3d 484

justify post-conviction relief."2 The Court of Appeals concluded that counsel's wrong advice in the trial court regarding deportation could constitute ineffective assistance of counsel. It remanded Appellee's case to the trial court for an evidentiary hearing on his motion for RCr 11.42 relief.

The Commonwealth argues that the Court of Appeals erred in distinguishing this case from Fuartado, because the legal premise in that case was that deportation is a collateral consequence of the criminal conviction. The Commonwealth argues that, whether as the result of misadvice or the failure to advise, deportation is necessarily collateral and not meaningfully distinguishable from other consequences such as losing the right to vote or to possess...

To continue reading

Request your trial
74 practice notes
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • 13 Agosto 2012
    ...867 (2012). 101. State's Response to Personal Restraint Petition at 8. 102.Padilla, 130 S.Ct. at 1478. 103.Com. of Kentucky v. Padilla, 253 S.W.3d 482, 483 (Ky.2008). 104.Id. 105.Id. 106.Sandoval, 171 Wash.2d at 169, 249 P.3d 1015 (citing In re Pers. Restraint of Riley, 122 Wash.2d 772, 780......
  • Verduzco v. State, CC CV110467
    • United States
    • Supreme Court of Oregon
    • 30 Julio 2015
    ...its way through the Oregon courts, the Kentucky courts were considering a similar post-conviction petition. See Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008). In the Kentucky case, Padilla alleged that his counsel had provided inadequate assistance in violation of the Sixth Amendment wh......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • 31 Marzo 2010
    ...of convictions obtained through plea bargains. Cf. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203. Pp. 12-16. 253 S. W. 3d 482, reversed and remanded. Stephen B. Kinnaird argued the cause for petitioner. Michael R. Dreeben argued the cause for the United States, as amic......
  • State v. DENISYUK
    • United States
    • Court of Special Appeals of Maryland
    • 29 Marzo 2010
    ...a non-citizen client whether the offense to which he is pleading guilty will result in his deportation?" In Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008), the post-conviction petitioner, a native of Honduras, had entered a guilty plea to drug-related charges. He claimed that his lawyer ......
  • Request a trial to view additional results
73 cases
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • 13 Agosto 2012
    ...867 (2012). 101. State's Response to Personal Restraint Petition at 8. 102.Padilla, 130 S.Ct. at 1478. 103.Com. of Kentucky v. Padilla, 253 S.W.3d 482, 483 (Ky.2008). 104.Id. 105.Id. 106.Sandoval, 171 Wash.2d at 169, 249 P.3d 1015 (citing In re Pers. Restraint of Riley, 122 Wash.2d 772, 780......
  • Verduzco v. State, CC CV110467
    • United States
    • Supreme Court of Oregon
    • 30 Julio 2015
    ...its way through the Oregon courts, the Kentucky courts were considering a similar post-conviction petition. See Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008). In the Kentucky case, Padilla alleged that his counsel had provided inadequate assistance in violation of the Sixth Amendment wh......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • 31 Marzo 2010
    ...of convictions obtained through plea bargains. Cf. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203. Pp. 12-16. 253 S. W. 3d 482, reversed and remanded. Stephen B. Kinnaird argued the cause for petitioner. Michael R. Dreeben argued the cause for the United States, as amic......
  • State v. DENISYUK
    • United States
    • Court of Special Appeals of Maryland
    • 29 Marzo 2010
    ...a non-citizen client whether the offense to which he is pleading guilty will result in his deportation?" In Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008), the post-conviction petitioner, a native of Honduras, had entered a guilty plea to drug-related charges. He claimed that his lawyer ......
  • Request a trial to view additional results
1 books & journal articles
  • Restructuring Public Defense After Padilla.
    • United States
    • Stanford Law Review Vol. 74 Nbr. 1, January 2022
    • 1 Enero 2022
    ...Denv. L. Rev. 835, 855 (2015). (14.) Padilla v. Kentucky, 559 U.S. 356, 359-60 (2010). (15.) Id. at 359 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), rev'd, 559 U.S. 356). (16.) This post-Padilla moment is not unlike the aftermath of the Supreme Court's watershed 1963 de......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT