ILNews

Judges advise defense attorneys to ask clients about citizenship

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals used its decision on a post-conviction relief appeal to “encourage” criminal defense attorneys to find out the citizenship of their clients and advise the clients as to the risks of deportation after pleading guilty.

Mark Clarke, who came to the U.S. from Barbados, claimed his trial attorney, Michael Caudill, provided ineffective assistance because he failed to inform Clarke that if he pleaded guilty to a drug charge, he could be deported. Caudill admitted in an affidavit that he did not advise Clarke that his guilty plea to Class B felony dealing in cocaine could subject him to deportation.

The post-conviction court denied Clarke’s petition for relief, and the Court of Appeals affirmed. In Mark Clarke v. State of Indiana, 49A02-1202-PC-65, the judges analyzed his case using Segura v. State, 749 N.E.2d 496 (Ind. 2001). Clarke argued that the requisite special circumstances in his case that justify setting aside the plea are that he has been in the U.S. for 11 years, his two children were born here, and, if deported, he may not see them again.

Judge Ezra Friedlander wrote that 11 years is not a long enough time to compel a finding of special circumstances and pointed out that Clarke’s two children were still in-utero when he pleaded guilty in 2007 and he is not married to either of his children’s mothers.

Also, the state had a strong case against Clarke if it were to proceed to trial, which included the drugs, a large amount of cash in his car, and likely the testimony of the two officers at the scene of the traffic stop and arrest. Clarke also received a significant benefit in exchange for his guilty plea, Friedlander noted.

He failed to establish that he was prejudiced by Caudill’s failure to advise him of the risk of deportation.

The appellate court also devoted a portion of its opinion to suggest that defense attorneys find out whether their clients are citizens and, if not, tell them about the risks of deportation. This would “obviate the need for post-conviction and appellate courts to undertake a ‘special circumstances’ analysis,” he wrote.

Friedlander also pointed out that this issue is coming up in other states, and the early trend appears to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  2. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  3. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  4. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  5. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

ADVERTISEMENT