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GUILTY PLEA COLLOQUY CHANGED

The Criminal Law Committee of the Berks County Bar Association, under the leadership of Co-Chairs John Adams and Michael Dautrich, met on July 26, 2010 to discuss the new “Statement Accompanying Defendant’s Request to Enter a Guilty Plea.”  Those present included Judges Ludgate, Lieberman, Parisi and Yatron.

Paragraph 4 of the Statement has been changed to read as follows:  “I   am   am not a citizen of the United States.  If I am not a citizen of the United States, I understand that by pleading guilty, I will be subject to immigration review which will likely result in my deportation.  I further understand that by pleading guilty I am giving up my right to challenge my plea, either on direct or collateral appeal, based on any possible immigration consequences.  This paragraph is consistent with the advice I received from my lawyer.”

The change follows the United States Supreme Court decision in Padilla v. Kentucky, which held that defense counsel must inform a client whether a guilty plea carries a risk of deportation.  A failure to do so was found to constitute constitutionally deficient representation.  The decision did not address the form the guilty plea colloquy should take.

In regard to the change, the District Attorney explained, “We do not want a later withdrawal of the guilty plea or have the need to defend an ineffective claim” when the defendant subsequently learns he or she is being deported.

David Eshelman questioned why the Statement has to say “will likely result in” deportation when, in fact, it may not.  Judge Ludgate emphasized that immigration law is a quagmire, and it is best to advise the client of the worst case scenario.  Jill Scheidt questioned why the paragraph has to include a waiver of rights to challenge the plea, even on a collateral appeal, and the same response was given.   However, Mr. Dautrich pointed out that paragraph 19.e. provides that the defendant still has the right “to challenge that my attorney was not effective in representing me, and that his/her ineffectiveness caused me to enter an involuntary or unknowing guilty plea.”

A question was raised as to whether the District Attorney’s office would be flexible in agreeing to a plea bargain that would not result in deportation.  Mr. Adams noted that his office treats every defendant the same, whether citizen or not, in arriving at the proposed plea bargain.  If a differently structured plea bargain would avoid deportation, defense counsel’s approach should be to take an open plea and make the argument to the Judge.

He also noted that one public defender organization has suggested that asking a defendant whether she or he is a citizen is a violation of one’s Fifth Amendment rights.  However, he believes asking for one’s citizenship status does not constitute such a violation.  Or, as Judge Lieberman noted, the guilty plea need not be accepted if no response is given.

A page five has been added to the Statement to be used in cases where sentencing is deferred, primarily those involving sex offences.  The additional page represents a separate acknowledgement that the defendant cannot withdraw the plea, unless the sentencing Court does not accept the plea.

Judge Ludgate reported that the new Statement has been translated into Spanish.  The colloquy will be conducted in English by the Judge, with an interpreter present for the Spanish-speaking defendant.  Until the two copies are merged, the English copy of the Statement will be signed by the defendant and filed with the Spanish copy to be given the defendant.

Comments should be directed to the Co-Chairs of the Criminal Law Committee.


Committees

    2012 Committee Chairpersons

Admissions and Membership Carmen R. Stanziola 610-478-6208 x3664
Bar Barrister Matthew M. Mayer 610-372-3500
Bench-Bar Conference Jill Gehman Koestel - Chair 610-374-2103
Bench-Bar Conference Gregory A. Shantz - Vice Chair 610-372-5588
Citizenship Andrew F. Fick - Chair 610-375-6131
Citizenship William R. A. Rush - Vice Chair 610-927-6218
Civil Liberties Sharon M. Scullin 610-478-6208 x 5783
Client Dispute Resolution Eugene Orlando, Jr. 610-779-3830
Common Pleas Court Rules Kenneth Millman - Chair 610-372-3500
Common Pleas Court Rules Deborah A. Sottosanti - Vice Chair 610-372-5588
Community Outreach Victoria A. Gallen Schutt - Chair 610-670-7303
Community Outreach Nicole M. Viscomi - Vice Chair 610-376-8656
Criminal Law John T. Adams - Co-Chair 610-478-6000
Criminal Law Michael D. Dautrich - Co-Chair 610-375-9455
Criminal Law Keith A. McConnell - Co-Chair 610-478-6650 x 3373
Diversity Daniel E. P. Bausher - Chair 610-478-2207
Diversity Latisha Bernard Schuenemann - Vice Chair 610-372-3500
Entertainment Dante C. Cutrona - Chair 610-372-5588
Entertainment Gregory A. Shantz - Vice Chair 610-372-5588
Governmental Affairs James M. Smith 610-944-8406
Investment A. Joseph Antanavage 610-562-2000
Law Day Alexa Antanavage 610-372-7700
Law Explorer Post Kevin Feeney 610-378-7000
Law Journal Karen H. Cook - Chair 610-372-7700
Lawyer Referral/Legal Aid Patrick T. Barrett - Chair 610-376-7252
Lawyer Referral/Legal Aid Nicole M. Viscomi - Vice Chair 610-376-8656
Mandatory Continuing Legal Education Heidi B. Masano 610-372-7700
Mock Trial Jason C. Glessner 610-478-6000 x 5018
Orphans' Court Rules John C. Bradley, Jr. - Chair 610-372-7700
Orphans' Court Rules Jennifer L. Nevins - Vice Chair 610-478-2243
Public Relations Jeffrey D. Bukowski - Chair 610-478-2215
Public Relations Dante C. Cutrona - Vice Chair 610-372-5588
"Ask A Lawyer" BCTV Honorable Thomas G. Parisi 610-478-6208
Senior Citizen Booklet William R. Blumer 610-372-3500
Technology Jeffrey A. Franklin 610-372-4761
Unauthorized Practice of Law Peter F. Schuchman, Jr. 610-670-2552



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