O'NEIL BROWN v. COMMISSIONER OF CORRECTION, SC 18859

Judicial District of Tolland

 Habeas; Whether Court Improperly Interpreted the Prejudice Standard for Claims of Ineffective Assistance of Counsel Leading to Guilty Pleas; Whether Guilty Plea was Valid Where Petitioner Claims he did not Understand that Deportation Would Necessarily Follow as a Result of Conviction.  The petitioner, a noncitizen who was born in Jamaica, pleaded guilty to assault of an officer.  As a result of the assault conviction, an immigration court ordered that he be removed from this country.  In this habeas action, the petitioner alleged that his attorney provided ineffective assistance in failing to advise him properly of the immigration consequences of his plea.  He also alleged that his plea was involuntary because he did not understand that deportation was an inevitable consequence of the assault conviction.  In denying the habeas petition, the habeas court found that the petitioner failed to prove that his attorney's performance prejudiced his defense, and, therefore, it declined to address whether the attorney's performance was deficient.  Relying on Hill v. Lockhart, 474 U.S. 52 (1985), which sets forth a prejudice standard for claims of ineffective assistance of counsel leading to guilty pleas, the habeas court stated that the petitioner failed to make the requisite showing that the outcome would likely have been more favorable had he insisted on going to trial.  In rejecting the petitioner's claim that his plea was involuntary, the habeas court found that the trial court specifically advised him that he could face deportation and that the petitioner indicated that he understood that he might very well be deported as a result of his plea.  Finally, the habeas court stated that the failure to inform a defendant as to all possible indirect and collateral consequences of a plea does not render a plea unintelligent or involuntary.  In this appeal, the petitioner argues that the habeas court misapplied the prejudice test articulated in Hill and that, had the habeas court applied the proper test, the evidence would have established that his attorney's performance prejudiced him.  He also argues that the court improperly found that he did not have to understand that his plea would result in deportation in order to waive his right to a trial.  He asserts that recent changes in the law suggest that deportation is a direct, rather than collateral, consequence of a conviction.  The respondent agrees that the habeas court misapplied the Hill prejudice standard and notes that in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), it was decided that trial attorneys have an affirmative duty to advise a noncitizen client as to actual deportation consequences of a plea in cases where such consequences are clear.  The respondent nonetheless argues that Padilla should not be applied retroactively to the petitioner.  Finally, the respondent argues that this matter should be remanded to the habeas court for factual findings as to whether the petitioner's attorney properly advised him of immigration consequences and whether, but for the errors of counsel, he would have insisted on going to trial.