Hernandez v. State

• Decision Date: 17 June 2011
• Docket Number: No. 3D10–2462.,3D10–2462.
• Citation: 61 So.3d 1144
• Parties: Gabriel A. HERNANDEZ, Appellant,v.The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

61 So.3d 1144

Gabriel A. HERNANDEZ, Appellant,

v.The STATE of Florida, Appellee.

No. 3D10–2462.

District Court of Appeal of Florida, Third District.

April 6, 2011.Rehearing and Rehearing En Banc Denied June 17, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalWest's F.S.A. RCrP Rule 3.172(c)(8) Sui Chung, Miami; Michael Vastine, for Immigration Clinic, St. Thomas University School of Law, for appellant.Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.Tania Galloni, for the Florida Immigrant Advocacy Center; Rebecca Sharpless for Immigration Clinic, University of Miami School of Law; Sabrina Vora-Puglisi, Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, for Florida Association of Criminal Defense Lawyers, as amicus curiae.Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.SALTER, J.

Gabriel A. Hernandez appeals a circuit court order denying his motion to vacate his plea, judgment and sentence under Florida Rule of Criminal Procedure 3.850. The motion was filed approximately three months after the Supreme Court of the United States issued its opinion in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The issues on appeal are (1) whether the fact that the trial court delivers Florida's deportation warning in a defendant's plea colloquy, Florida Rule of Criminal Procedure 3.172(c)(8), bars postconviction ineffective assistance claims based on Padilla, and (2) if not, whether that determination applies retroactively to pleas taken before Padilla was announced.

We conclude that Padilla rendered Florida's existing standard deportation warning constitutionally deficient in cases such as this. We further conclude, however, that Padilla should not be applied retroactively in Florida postconviction proceedings. Accordingly, we affirm the circuit court order denying Hernandez's motion. We acknowledge that our rulings on these issues have significant implications—particularly within this District of this State—for pleas taken in the past and to be taken in the future by persons whose right to remain in the United States is subject to summary divestment solely because of such a plea.¹ For that reason, we certify to the Florida Supreme Court the following questions of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(2)(A)(v):

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, –––U.S. ––––, 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?

Because our conclusion on the first of these two issues expressly and directly conflicts with the decision of the Fourth District in Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010),² on the same question of law, we also certify the conflict to the Florida Supreme Court under Florida Rule of Appellate Procedure 9.030(2)(A)(iv).

I. Background

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.³ 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). In his sworn motion, Hernandez alleged that he would not have entered a plea of guilty if he had known that it “would mandate [his] deportation without recourse.”

II. Analysis Regarding Padilla

In considering Hernandez's motion, the trial court was not free to ignore our neighboring appellate court's application of Padilla in Flores. The trial court's careful and detailed four-page order denying Hernandez's claim was correct on the basis of binding Florida decisional law as it stood five months after Padilla was announced. We are not bound by Flores, however, and we have also received the benefit of other reported decisions by several federal and state courts.

A. Flores v. State

Flores distinguishes Padilla on a critical point: “Padilla was not advised by the trial court during the plea colloquy that the plea might result in deportation.” Flores, 57 So.3d at 220. The Kentucky trial court did not warn Padilla as a Florida court would have under our Rule 3.172(c)(8). In Flores' case, an evidentiary hearing had already been conducted, and it was established that his plea colloquy had included language consistent with Rule 3.172(c)(8), notifying him “that the conviction may result in deportation.” Id. The Fourth District held that this warning precluded Flores from showing “the prejudice necessary to obtain relief for ineffective assistance of counsel under [ Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” Id. The opinion accurately observes that “[a] defendant's sworn answers during a plea colloquy must mean something,” and “a defendant has an affirmative duty to speak up if the attorney has promised something different.” Id.

Relying on this Court's decision in Bermudez v. State, 603 So.2d 657, 658 (Fla. 3d DCA 1992), Flores holds that the trial court's warning to Flores that he may be deported based on his plea “cured any prejudice that might have flowed from counsel's alleged misadvice.” 57 So.3d at 220–21. While this may have been an accurate statement of federal and Florida law before Padilla, we respectfully conclude that it is no longer accurate.

As noted, the record in Padilla did not even include a “may subject you” warning as part of the plea colloquy. But the holding in that case does not depend on a distinction between defense counsel's mere failure to warn versus his or her affirmative misadvice.⁴ Instead, Padilla goes to the very heart of a defendant's Sixth Amendment right to effective assistance of counsel when the defendant is entering a plea to a criminal charge as to which the plea and sentence, as here, will subject the defendant to deportation (and with no basis to apply for discretionary relief from that result). The majority opinion in Padilla focuses on counsel's duty, not on the “fair notice” warning that such a plea might (and therefore, inferentially, might not) result in deportation:

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 (as it is in many of the scenarios posted by Justice Alito), 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.Padilla, 130 S.Ct. at 1483 (footnote omitted; emphasis provided).

The majority opinion thus differentiated between those cases involving a mere “risk of adverse immigration consequences,” and those with a “truly clear” deportation consequence. The concurring opinion by Justice Alito in Padilla, joined by Chief Justice Roberts, recognized the consequence of such a distinction in the many cases in which deportability is clear but only the “risk of adverse immigration consequences” warning is given. The concurring opinion argued that defense counsel must only ...