Writings and observations

A non-citizen’s right to counsel

wacourt

The decision seems basically right, but you can just imagine how it is going to go down among the anti-immigrant crowd.

Here’s the short version: Washington v. Valentin Sandoval, decided today by the Washington Supreme Court, concerns a non-citizen of this country who was accused and found guilty of rape. The high court overturned – vacated – the conviction not on a question having to do not with evidence, but whether his attorney gave him the best advice on legal strategy. That’s a reasonably fair and accurate summation, and it may be repeated broadly in months and years to come.

It’s not the whole story, as you might imagine. For one significant thing, while the conviction was thrown out, nothing in the decision seems to preclude a trial – and it would be the first one – in the case.

Here’s a longer version of the background from the court (legal references deleted):

Valentin Sandoval, a noncitizen permanent resident of the United States, was charged with rape in the second degree. The prosecutor offered, in exchange for a guilty plea, to reduce the charge to rape in the third degree. Sandoval conferred with his attorney and said that he did not want to plead guilty if the plea would result in his deportation. Sandoval’s attorney recalls Sandoval as being “very concerned”that he would be held in jail after pleading guilty and subjected to deportation proceedings. Sandoval’s counsel advised him to plead guilty: “I told Mr. Sandoval that he should accept the State’s plea offer because he would not be immediately deported and that he would then have sufficient time to retain proper immigration counsel to ameliorate any potential immigration consequences of his guilty plea.” Sandoval explains, “I trusted my attorney to know that what he was telling me was the truth.”

Sandoval followed his counsel’s advice and pleaded guilty on October 3, 2006. The statement on plea of guilty, that Sandoval signed, contained a warning about immigration consequences: “If I am not a citizen of the United States, a plea of guilty to an offense punishable as a crime under state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” During a colloquy with the court, Sandoval affirmed that his counsel, with an interpreter’s help, had reviewed the entire plea statement with Sandoval. After the original sentencing hearing was continued, Sandoval was sentenced on January 23, 2007 to the standard range of 6 to 12 months in jail, with credit for time served.

Before Sandoval was released from jail, the United States Customs and Border Protection put a “hold” on Sandoval that prevented him from being released from jail. Deportation proceedings against Sandoval then began. Sandoval now claims, “I would not have pleaded guilty to Rape in the Third Degree if I had known that this would happen to me.”

On this issue, you can kind of see his point – I thought I knew what my lawyer was doing.

From the court’s conclusion (legal references dropped):

“Although Sandoval would have risked a longer prison term by going to trial, the deportation consequence of his guilty plea is also “a particularly severe ‘penalty.'” For criminal defendants, deportation no less than prison can mean “banishment or exile,” and “separation from their families.” Given the severity of the deportation consequence, we think Sandoval would have been rational to take his chances at trial. Therefore, Sandoval has proved that his counsel’s unreasonable advice prejudiced him.”

The case was close; there were two concurrences with varying views. So may there be in the public.

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