Committee News
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 |
