No. 14-0603 - State of West Virginia v. Orville M. Hutton
                                                                            FILED
                                                                          June 16, 2015

                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA


LOUGHRY, Justice, concurring, in part, and dissenting, in part:


              I concur in the majority’s historical analysis of the common law writ of error

coram nobis, as well as its ultimate conclusion that the writ remains available only in

extraordinary circumstances in criminal proceedings in West Virginia. Further, while I do

not disagree with the majority’s new syllabus point four to the extent it reflects the holding

of the United State Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), I disagree

with the majority’s implication that Padilla imposes a duty on lawyers to explore the

immigration status of all criminal defense clients. Moreover, I do not believe that Padilla

has any application under the particular facts and circumstances of the case at bar.



              The sole similarity between Mr. Hutton in the instant matter, and the petitioner

in Padilla, Jose Padilla, is that both were longtime lawful permanent residents of this

country, but not American citizens, when they became subject to deportation as a direct

consequence of their guilty pleas to criminal charges. What remains are two factually

significant differences that render Padilla inapplicable to Mr. Hutton’s situation.




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              First, it appears from the facts set forth in Padilla that Mr. Padilla’s counsel

was aware that his client was not a citizen of the United States prior to Mr. Padilla entering

his guilty plea. Second, armed with the knowledge of his client’s immigration status, Mr.

Padilla’s counsel proceeded to advise him that he “‘did not have to worry about immigration

status since he had been in the country so long.’” Padilla at 359 (internal citation omitted).

Based upon that legal advice, which was later revealed to be incorrect, Mr. Padilla proceeded

to plead guilty to criminal drug charges, making his “deportation virtually mandatory.” Id.



              Conversely, in the case sub judice, the appendix record contains a transcript

of the coram nobis hearing held before the circuit court during which Mr. Hutton testified

that he never told his counsel of his immigration status. Consequently, unlike the attorney

in Padilla, and absent a record showing the contrary, it appears that Mr. Hutton’s defense

counsel was unaware that his client was not an American citizen. In further and significant

contrast to Padilla, Mr. Hutton does not assert that his trial counsel gave him incorrect

immigration advice.



              In addressing Mr. Padilla’s post-conviction challenge based on an ineffective

assistance of counsel claim, the Padilla Court observed that the changes to the immigration

law in this country have “dramatically raised the stakes of a noncitizen’s criminal

conviction,” and that the “importance of accurate legal advice for noncitizens accused of



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crimes has never been more important.” Id. at 364. Upon its review of the relevant

immigration statute, the Supreme Court found that statute to be “succinct, clear, and explicit

in defining the removal consequence for Padilla’s conviction.” Id. at 368. Accordingly, the

Supreme Court found that Mr. Padilla had “sufficiently alleged constitutional deficiency to

satisfy the first prong of Strickland[,]”1 leaving the determination of whether Mr. Padilla can

satisfy Strickland’s second prong–prejudice–to the Kentucky courts. Id. at 369.2



               Although deportation is a “particularly severe ‘penalty[,]’” id. at 365 (internal

citations omitted), it is clear from Padilla that the Supreme Court did not expressly impose

a blanket duty upon lawyers to ask every client charged with a crime whether they are

American citizens. The Supreme Court’s silence in this regard has been recognized by other

courts. For example, in Clarke v. State, 974 N.E.2d 562 (Ind. Ct. App. 2012), the court

commented on the issue of whether criminal defense lawyers must “ascertain the citizenship

of their clients[,]” observing that “this issue is percolating in other states[.]” Id. at 568. The


       1
       See Syl. Pt. 5, State v. Miller,194 W.Va. 3, 459 S.E.2d 114 (1995) (“In the West
Virginia courts, claims of ineffective assistance of counsel are to be governed by the
two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984): (1) Counsel’s performance was deficient under an objective standard
of reasonableness; and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.”).
       2
         Under the majority’s remand, I would remind the circuit court that Mr. Hutton will
need to prove that his counsel’s performance was deficient under the first prong of Strickland
and, if he is successful in that regard, he will still have to satisfy the second prong and prove
prejudice before he will be entitled to relief.


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Indiana court then cited State v. Stephens, 265 P.3d 574, 577 (Kan. Ct. App. 2011), review

denied, wherein the Kansas court stated that “[t]he Padilla Court did not . . . impose upon

counsel the duty to investigate the citizenship or immigration status of every client in a

criminal case.”3



                More recently, in State v. Rodriguez, No. 108,505, 320 P.3d 449 (Table) (Kan.

App. Mar. 14, 2014), the Kansas court relied upon Stephens, again noting that

                [t]he Padilla majority did not impose a duty to investigate the
                citizenship or immigration status of every client in a criminal
                case. See State v. Stephens, 46 Kan.App.2d 853, 856, 265 P.3d
                574 (2011), rev. denied 294 Kan. 947 (2012). In his
                concurrence in Padilla, Justice Alito observed that in some
                cases, it may be hard for defense counsel even to determine
                whether a client is an . . . alien. Padilla, 559 U.S. at 379-80
                (Alito, J., concurring). He suggested that “[w]hen a criminal
                defense attorney is aware” that a client is an . . . alien, he or she
                should advise the client of the immigration consequences and
                tell the client to consult an immigration specialist for advice on
                that subject. Padilla, 559 U.S. at 387.

Id. at *10. The Kansas court proceeded to find “there was no evidence presented establishing

that Rodriguez’s former attorney knew or had a reason to know Rodriguez was an

undocumented alien prior to the entry of the no contest plea.” Id. at *10. Similarly, in the

case at bar, Mr. Hutton had been a resident of the United States since he was a young child,

having lived here for nearly forty years at the time the criminal charges were brought against




       3
           See Clarke, 974 N.E.2d at 569.

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him. Consequently, there was likely no reason for his counsel to know that he was not an

American citizen.



              I believe the majority in the case at bar, like the majority in Padilla, leaves

unclear whether lawyers must inquire of the immigration status of each and every client

charged with a crime. And, the majority’s footnote eighteen only serves to further muddy

the waters.



              In footnote eighteen, the majority excuses Mr. Hutton’s admitted failure to

advise his counsel of his immigration status by stating that the Padilla Court did not place

a burden on criminal defendants to advise their lawyers of their immigration status. While

that statement may be correct, I am concerned that the inverse implication of footnote

eighteen is that the burden is on lawyers to explore the immigration status of every criminal

defense client, notwithstanding the fact that Padilla did not expressly impose such a duty.4


       4
        I share Justice Alito’s concerns about the burden that Padilla does place on a lawyer
who is aware that his or her client is an alien. As Justice Alito summarized, “a criminal
defense attorney should not be required to provide advice on immigration law, a complex
specialty that generally lies outside the scope of a criminal defense attorney’s expertise.” Id.
at 387-88 (Alito, J., concurring). Explaining further, Justice Alito stated that

              an alien defendant’s Sixth Amendment right to counsel is
              satisfied if defense counsel advises the client that a conviction
              may have immigration consequences, that immigration law is a
              specialized field, that the attorney is not an immigration lawyer,
              and that the client should consult an immigration specialist if the
                                                                                    (continued...)

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Because the focus of Padilla was on the importance of a lawyer giving his or her client

accurate advice regarding the immigration consequences of a guilty plea, the Court simply

never addressed precisely how immigration status was to be discerned. See Stephens, 265

P.3d at 577 (“The only issue the United States Supreme Court decided was whether defense

counsel had a duty to inform his client, known to be a resident alien, of the effect of a guilty

plea on the client’s immigration status.”).



                 Placing an affirmative duty on lawyers to ask every client whether he or she

is an American citizen prior to entry of a guilty plea may seem an insignificant burden,

particularly when contrasted with the possibility of adverse immigration consequences

arising out of a guilty plea to criminal charges. However, absent an express holding by the

United States Supreme Court imposing a blanket duty on lawyers to question every criminal

defense client concerning their citizenship or immigration status, or unless an attorney

reasonably should have known of his or her client’s immigrant status under the particular

circumstances, I do not believe that such a global duty of inquiry exists.5


       4
           (...continued)

                  client wants advice on that subject.


Id. at 388 (Alito, J., concurring).
       5
       Given the uncertainty created by Padilla in this regard, perhaps the issue should be
addressed either through our procedural rules, or through a statutory enactment. See Padilla,
559 at 374, n.15 (“[M]any States require trial courts to advise defendants of possible
immigration consequences. See, e.g., Alaska Rule Crim. Proc. 11(c)(3)(C) (2009-2010); Cal.
                                                                              (continued...)

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              For these reasons, I respectfully concur, in part, and dissent, in part, to the

majority’s decision in this case.




       5
        (...continued)
Penal Code Ann. § 1016.5 (West 2008); Conn. Gen. Stat. § 54-1j (2009); D.C. Code § 16­
713 (2001); Fla. Rule Crim. Proc. 3.172(c)(8) (Supp. 2010); Ga.Code Ann. § 17-7-93(c)
(1997); Haw. Rev. Stat. Ann. § 802E-2 (2007); Iowa Rule Crim. Proc. 2.8(2) (b) (3) (Supp.
2009); Md. Rule 4-242 (Lexis 2009); Mass. Gen. Laws, ch. 278, § 29D (2009); Minn. Rule
Crim. Proc. 15.01 (2009); Mont. Code Ann. § 46-12-210 (2009); N.M. Rule Crim. Form 9­
406 (2009); N. Y. Crim. Proc. Law Ann. § 220.50(7) (West Supp.2009); N.C. Gen. Stat.
Ann. § 15A-1022 (Lexis 2007); Ohio Rev. Code Ann. § 2943.031 (West 2006); Ore. Rev.
Stat. § 135.385 (2007); R.I. Gen. Laws § 12--12-22 (Lexis Supp.2008); Tex. Code. Ann.
Crim. Proc., Art. 26.13(a)(4) (Vernon Supp. 2009); Vt. Stat. Ann., Tit. 13, § 6565(c)(1)
(Supp.2009); Wash. Rev. Code § 10.40.200 (2008); Wis. Stat. § 971.08 (2005-2006).”).

               Decisions from other courts also reflect the use of plea forms that address the
issue of citizenship. See State v. Navarette-Pacheco, No. 106,874, 286 P.3d 239, at *1
(Table) (Kan. Ct. App. Oct. 5, 2012) (observing that defendant’s “‘Acknowledgement of
Rights and Entry of Plea’ form read: ‘If I am not a United States citizen, I understand that
a conviction of a felony offense most likely will result in my deportation from the United
States.’”); Ramirez-Gil v. State, 327 P.3d 1228, 1231 (Utah Ct. App. 2014) (noting
defendant’s acknowledgment that “written plea form contains the following statement, ‘I
understand that if I am not a United States citizen, my plea(s) today may, or even will, subject
me to deportation under United States immigration laws and regulations, or otherwise
adversely affect my immigration status, which may include permanently barring my re-entry
into the United States. I understand that if I have questions about the effect of my plea on my
immigration status, I should consult with an immigration attorney.’”).

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