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.

1First, 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

2crimes 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.

3Indiana 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.

4him. 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...)

5Because 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...)

6For 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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