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Judges advise defense attorneys to ask clients about citizenship

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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.

 

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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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