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Budziszewski v. Commissioner of Correction

Supreme Court of Connecticut

August 16, 2016

PIOTR BUDZISZEWSKI
v.
COMMISSIONER OF CORRECTION

          Argued March 29, 2016

          Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Adrienne Maciulewski, deputy assistant state’s attorney, for the appellant (respondent).

          Damon A. R. Kirschbaum, with whom, on the brief, was Vishal K. Garg, for the appellee (petitioner).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          ROGERS, C. J.

         In this appeal, we consider what advice criminal defense counsel must give to a noncitizen client who is considering pleading guilty to a crime when federal law prescribes deportation as the consequence for a conviction. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court concluded that the federal constitution’s guarantee of effective assistance of counsel requires criminal defense counsel to accurately advise a noncitizen client of the immigration consequences of pleading guilty to a crime, as described in federal law. Id., 360, 368-69. For crimes designated as aggravated felonies, including the crime at issue in the present case, federal law mandates deportation almost without exception. See id., 363-64, 368. We conclude that, for these types of crimes, Padilla requires counsel to inform the client about the deportation consequences prescribed by federal law. See id., 374. Because noncitizen clients will have different understandings of legal concepts and the English language, there are no precise terms or one-size-fits-all phrases that counsel must use to convey this message. Rather, courts reviewing a claim that counsel did not comply with Padilla must carefully examine all of the advice given and the language actually used by counsel to ensure that counsel explained the consequences set out in federal law accurately and in terms the client could understand. In circumstances when federal law mandates deportation and the client is not eligible for relief under an exception to that command, counsel must unequivocally convey to the client that federal law mandates deportation as the consequence for pleading guilty.

         In this appeal, we also consider whether, in addition to advising the client what federal law mandates, Padilla requires counsel to also advise a client of the actual likelihood that immigration authorities will enforce that mandate. Although Padilla requires that counsel explain the meaning of federal law, it does not require counsel to predict whether or when federal authorities will pursue the client in order to carry out the deportation proceedings required by law. Nevertheless, if counsel chooses to give advice or the client inquires about federal enforcement practices, counsel must still convey to the client that once federal authorities apprehend the client, deportation will be practically inevitable under federal law.

         In light of these clarifications, we reverse the judgment of the habeas court in the present case and remand the case to that court for a new trial applying these standards.

         I

         The petitioner, Piotr Budziszewski, is a Polish national who emigrated to the United States and later became a lawful permanent resident. Several years after arriving in the United States, he twice sold narcotics to undercover police officers, leading to his arrest on various drug offenses.

         The state charged the petitioner with two counts of selling narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and two counts of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-279 (a). The charges carried a minimum sentence of five years imprisonment with a maximum term of twenty years. General Statutes § 21a-278 (b).

         The petitioner hired Attorney Gerald Klein to defend him. Klein negotiated a plea agreement with the state that would allow the petitioner to plead guilty to one count of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (a). This offense did not carry a mandatory minimum period of incarceration; see General Statutes § 21a-277 (a); and the state agreed to a sentence recommendation of five years of incarceration, execution suspended after no more than one year. The petitioner accepted the plea arrangement and the trial court sentenced the petitioner to a period of incarceration of five years, execution suspended after ninety days, and a period of probation.

         After serving forty-five days of incarceration, the state released the petitioner from custody. Because of his felony conviction, federal authorities detained the petitioner after his release from state custody and began proceedings to remove him from the country. Federal authorities entered a final order of removal and the petitioner exhausted all avenues for appeal from that order.

         After federal authorities had detained the petitioner, he filed the habeas petition at issue in the present case. He claimed, among other things, that Klein, his criminal trial counsel, rendered ineffective assistance by failing to advise him of the immigration consequences of his guilty plea, as required ...


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