Knowing and Voluntary Plea Agreement
Facts: Petitioner, an undocumented immigrant, pled guilty to two charges and subsequently faced removal proceedings. He alleged in post-conviction that his lawyer was ineffective in failing to advise him on his removability, and that his plea was not knowing and voluntary where the court failed to inquire as to whether he was aware of potential immigration consequences.
Appellate Decision: The CCA upheld the post-conviction court’s denial of relief. As for ineffective assistance, the court found the record supported a finding that his attorney had advised him he “may or may not be deported.” As for whether his plea was knowing and voluntary, the court observed that the sentencing court failed to comply with the then-recently-enacted Tenn. R. Crim. P. 11(b)(1)(J) requirement for the court to inquire as to whether a defendant has been made aware of potential immigration consequences. However, the court found the plea was knowing and voluntary because trial counsel had, in fact, made Petitioner aware of such consequences.
Issues: Is a trial attorney ineffective for telling a defendant he “may or may not be deported”? Is a plea knowing and voluntary where the court fails to inquire as to whether a petitioner has been told of potential immigration consequences, where the defendant has been so told?
Review Granted: April 9, 2013.
Prediction: Ben believes the Supreme Court will affirm. Rule 11(b)(1)(J) is a good safeguard to ensure a defendant is aware that his plea may have immigration consequences, but the failure of the court to comply with this rule does not itself make a plea not knowing and voluntary.