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Man not prejudiced by lawyer's failure to advise about deportation

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A defendant’s trial counsel was deficient by not advising his client about the risk of deportation following a guilty plea, but the defendant wasn’t prejudiced by the performance, the Indiana Court of Appeals concluded.

In Heriberto Suarez v. State of Indiana, No. 02A05-1106-PC-325, Heriberto Suarez claimed the post-conviction court erred in denying his petition for post-conviction relief on the basis of ineffective trial counsel. Suarez, who is from Mexico but has lived in the United States since the 1950s without becoming a resident, pleaded guilty to Class C felony child molesting. He faced a Class A felony molesting charge involving his young granddaughter. His attorney did not advise him that he could be deported following his guilty plea. His attorney, Patrick Arata, said he assumed Suarez was an American citizen so he did not ask about Suarez’s status.

Suarez testified he pleaded guilty to the Class C felony charge to receive a shorter sentence so he could take care of his blind wife, who is in poor health. He said he would have fought the Class A felony charge had he known that pleading guilty would subject him to possible deportation.

The appellate court noted that were Suarez to be deported, it would be difficult for him to provide for his wife, although he had a large family that could care for her in his absence. Suarez’s objective probability of success at trial was fairly low, and the benefit conferred upon him by his guilty plea was substantial. Instead of facing up to 50 years in prison, meaning he would have served 41 years, he faced a sentence between two and 8 years and actually received a four-year sentence.

While his attorney was deficient for not advising Suarez about possible deportation, he was not prejudiced by his attorney’s failure to notify him of the risk, the judges concluded.

 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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