|Justice Jaynee LaVecchia|
The New Jersey Supreme Court divided 5-2, holding in State v. Gaitan, that a defendant whose lawyer neglected to properly advise a client of the deportation consequences of a guilty plea is entitled to post conviction relief only if the malpractice occurred after the landmark ruling Padilla v. Kentucky, (2010). Imposing on defense counsel an affirmative duty to warn of immigration law consequences of a guilty, the U.S. Supreme Court broke new ground - a result not compelled by the 6th Amendment precedent of Strickland v. Washington, 466 U.S. 668 (1984). Defendants whose counsel fell short of the Padilla standard before it was decided are not entitled to relief.
Associate Justice Barry Albin dissented, joined by Virginia Long, whose tenure ends today. In 1996 Congress drastically increased the number of offenses which mandated deportation - even of aliens lawfully resident. Gaitan's guilty plea was in 2005. Albin argues:
with reference to the 1996 amendments the majority concludes that it is “particularly important now for criminal defense attorneys to be able to, at a minimum, secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable.” But then why was it not important in 2005, nine years after the effective date of the amendments, for a noncitizen to receive advice about the immigration consequences of a plea?Albin therefore rejects the majority's ruling that Padilla created a new constitutional rule. Any "minimally adequate defense attorney has long known" to advise the client of the immigration consequences of conviction of a crime, he declared.
The 3rd Circuit has held in favor of retroactivity while the 7th and 10th have ruled against it. The issue therefore is headed to the United States Supreme Court. In New Jersey the ruling permits courts to lift the stay on 257 post conviction relief cases.