People v. Baret

• Citation: 2014 N.Y. Slip Op. 04872,16 N.E.3d 1216,23 N.Y.3d 777,992 N.Y.S.2d 738
• Parties: The PEOPLE of the State of New York, Appellant, v. Roman BARET, Respondent.
• Decision Date: 30 June 2014
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 777

16 N.E.3d 1216

992 N.Y.S.2d 738

2014 N.Y. Slip Op. 04872

The PEOPLE of the State of New York, Appellant,

v.Roman BARET, Respondent.

Court of Appeals of New York.

June 30, 2014.

Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg, Jason S. Whitehead and Joseph N. Ferdenzi of counsel), for appellant.

Labe M. Richman, New York City, for respondent.

Christopher N. Lasch, Denver, Colorado, for Lenni Benson and others, amici curiae.

Immigrant Defense Project, New York City (Manuel D. Vargas and Dawn M. Seibert of counsel), New York State Defenders Association, Albany (Jonathan E. Gradess of counsel), New York State Association of Criminal Defense Lawyers, New York City (Marc Fernich and Brendan White of counsel), National Association of Criminal Defense Lawyers, Washington, D.C. (Norman L. Reimer of counsel), and National Association of Criminal Defense Lawyers, New York City (Joel B. Rudin of counsel), for New York State Defenders Association, Inc. and others, amici curiae.

OPINION OF THE COURT

READ, J.

The United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) that the Sixth Amendment requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. The Court subsequently held in Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) that Padilla did not apply retroactively in federal collateral review. The issue in this appeal is whether, pursuant to federal or state retroactivity principles, Padilla nonetheless applies retroactively in state court postconviction proceedings. For the reasons that follow, we hold that it does not, and therefore reverse the Appellate Division.

I.

On April 20, 1995, defendant Roman Baret was indicted on six counts of third-degree sale of a controlled substance (Penal Law § 220.39) and six counts of third-degree possession of a controlled substance (Penal Law § 220.16). He was also charged, while acting in concert with a codefendant, with an additional two counts of third-degree possession and one count of fourth-degree possession (Penal Law § 220.09). On December 23, 1996, defendant pleaded guilty to one count of third-degree sale in exchange for an indeterminate prison term of 2 to 6 years and a recommendation for shock incarceration. The plea fulfilled his part of a “no-split” offer under which his codefendant would plead guilty and receive probation.

During the plea colloquy, defendant admitted to the sale, acknowledged that a guilty plea was the equivalent of a conviction after trial and that, by pleading guilty, he was giving up his rights to remain silent, seek suppression of evidence and present his own evidence at trial. He acknowledged that he could receive between 8 to 25 years in prison if convicted after trial. Defendant assured the judge that no one had forced him to plead guilty, and the judge warned that he was authorized to sentence defendant to the maximum term of incarceration if he failed to return for sentencing.

Defendant, represented by new counsel, subsequently moved to withdraw his plea; he claimed that he had pleaded guilty because of threats made by his codefendant. The judge denied the motion. Defendant then failed to appear for sentencing, and a bench warrant was issued. More than seven years later, on October 20, 2004, he was returned to court involuntarily. On December 20, 2004, the court (a new judge) sentenced defendant to the originally promised sentence of 2 to 6 years' incarceration.

On appeal, defendant argued that the judge who took the plea abused his discretion when he denied the motion to withdraw without holding a hearing. The Appellate Division disagreed and affirmed, with two Justices dissenting (43 A.D.3d 648, 841 N.Y.S.2d 97 [1st Dept.2007] ). A dissenting Justice granted defendant's application for leave to appeal to us (2007 N.Y. Slip Op. 83234[U] [2007] ), and we affirmed (11 N.Y.3d 31, 862 N.Y.S.2d 446, 892 N.E.2d 839 [2008] ).

In December 2010, defendant moved to vacate his conviction pursuant to CPL 440.10 on the ground that defense counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea, entered 14 years earlier. He relied on the Supreme Court's then-recent decision in Padilla. Defendant claimed that he would have rejected the plea and gone to trial if he had known that, by pleading guilty, he became subject to deportation.

In a decision and order dated March 3, 2011, Supreme Court declined to apply Padilla retroactively to defendant's claim. The court next concluded that defendant had failed to show that his attorney was otherwise ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) in light of the generous plea bargain he received. Under the two-prong Strickland test, a defendant must show both that his attorney's conduct fell below established professional norms and that there is a reasonable probability that, but for the error, the proceeding would have turned out differently (id. at 687–688, 694, 104 S.Ct. 2052).

On September 1, 2011, a Justice of the Appellate Division granted defendant's application for leave to appeal the denial of his CPL 440.10 motion (2011 N.Y. Slip Op. 82488[U] [2011] ). The Appellate Division employed the framework described by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and adopted by us in People v. Eastman, 85 N.Y.2d 265, 275–276, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995) to analyze whether Padilla should be applied retroactively (99 A.D.3d 408, 409, 952 N.Y.S.2d 108 [1st Dept.2012] ).

Teague established as a guiding principle that new rules of federal constitutional criminal procedure do not apply retroactively to cases that had become final on direct review before the new rule was announced ( see Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 [2007] [“Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review”] ).¹ Additionally, Teague created a test to differentiate a new rule from an existing or old rule; namely,

“[i]n general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final” (489 U.S. at 301, 109 S.Ct. 1060 [citations omitted] ).

Subsequent decisions defined “ dictated by precedent” to mean that the result was “apparent to all reasonable jurists” at the time the defendant's conviction became final (Lambrix v. Singletary, 520 U.S. 518, 527–528, 117 S.Ct. 1517, 137 L.Ed.2d 771 [1997]; see also Graham v. Collins, 506 U.S. 461, 477, 113 S.Ct. 892, 122 L.Ed.2d 260 [1993] [the “determinative question is whether reasonable jurists reading the case law that existed in 1984 could have concluded that (the defendant's) sentencing was not constitutionally infirm”]; Butler v. McKellar, 494 U.S. 407; 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 [1990] [a constitutional rule that is “susceptible to debate among reasonable minds” qualifies as a new rule] ).

The Teague court also fashioned two exceptions to this general rule. First, “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” (489 U.S. at 311, 109 S.Ct. 1060 [internal quotation marks omitted] ). The second exception was “reserved for watershed rules of criminal procedure” ( id.), defined generally as “those new procedures [of fundamental fairness] without which the likelihood of an accurate conviction is seriously diminished” (id. at 313, 109 S.Ct. 1060).

As the Appellate Division acknowledged, we have long considered deportation to be a collateral consequence of a guilty plea ( see99 A.D.3d at 409, 952 N.Y.S.2d 108, citing People v. Ford, 86 N.Y.2d 397, 405, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).² As a result, prior to Padilla we held in Ford that counsel's failure to warn a defendant that a guilty plea might lead to removal from the United States did not amount to ineffective assistance of counsel under the Federal or State Constitutions ( id. at 405, 952 N.Y.S.2d 108), while inaccurate advice about a guilty plea's immigration consequences constituted ineffective assistance under the Federal Constitution ( see People v. McDonald, 1 N.Y.3d 109, 111, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ).³ The Appellate Division nonethelessdecided in favor of retroactivity on the theory that

“ Padilla did not establish a new rule under Teague; rather, it followed from the clearly established principles of the guarantee of effective assistance of counsel under Strickland, and merely clarified the law as it applied to the particular facts. Rather than overrule a clear past precedent, Padilla held that Strickland applies to advice concerning deportation, whether it be incorrect advice or no advice at all” (99 A.D.3d at 409, 952 N.Y.S.2d 108 [internal quotation marks and citations omitted] ).

Thus, the court held that Padilla was to be retroactively applied to pleas taken after Congress made “significant changes in immigration law” in 1996, ⁴ and “express[ed] no opinion on [its] applicability ... to pleas taken before” that year ( id.). The court remanded for a hearing to determine “what advice, if any, counsel gave defendant regarding the immigration consequences of his plea, and, assuming the advice was constitutionally deficient, whether there is a reasonable probability that but for this deficiency, defendant would have gone to trial” ( id. at 410, 130 S.Ct. 1473).

The Appellate Division issued its decision and order on October 2, 2012. The Supreme Court handed down Chaidez ...