SC11-1357 – State of Florida v. Gabriel A. Hernandez

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc11-1357

Case Date: 11/21/2012

Plaintiff: SC11-1357 – State of Florida

Defendant: Gabriel A. Hernandez

Preview:Supreme Court of Florida
Nos. SC11-941 & SC11-1357
GABRIEL A. HERNANDEZ,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
STATE OF FLORIDA,
Petitioner,
vs.
GABRIEL A. HERNANDEZ,
Respondent.
[November 21, 2012]
PER CURIAM.
This case is before the Court for review of the decision of the Third District
Court of Appeal in Hernandez v. State, 61 So. 3d 1144 (Fla. 3d DCA 2011).  In its
decision, the Third District ruled upon the following questions, which it certified to
be of great public importance:

1.  DOES THE IMMIGRATION WARNING IN FLORIDA RULE
OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION-
BASED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
BASED ON THE U.S. SUPREME COURT’S DECISION IN
PADILLA v. KENTUCKY, [130 S. Ct. 1473 (2010)]?
2.  IF THE PRECEDING QUESTION IS ANSWERED IN THE
NEGATIVE, SHOULD THE RULING IN PADILLA BE APPLIED
RETROACTIVELY?
Hernandez, 61 So. 3d at 1145-46.
We answer the certified questions in the negative.1  We hold that, under
Padilla, the trial court’s warning to a defendant that “the plea may subject him or
her to deportation,” as required by Florida Rule of Criminal Procedure 3.172(c)(8),
does not preclude a finding of ineffective assistance of counsel.  However, we also
hold that the United States Supreme Court’s holding in Padilla does not apply
retroactively.  Therefore, we approve the Third District’s decision upholding the
denial of Hernandez’s postconviction motion.
I.  BACKGROUND
The facts in this case were set forth in the Third District’s decision below:
In April 2001, Hernandez (then 19 years old and a permanent
resident alien cardholder) was arrested for the sale of lysergic acid
diethylamide (LSD) to a confidential informant.  Hernandez was born
in Nicaragua, but entered the United States with his mother when he
was under two years of age.  On May 3, 2001, Hernandez was charged
1.  We have jurisdiction.  See art. V, § 3(b)(4), Fla. Const.  And given that
the certified questions involve legal determinations based on undisputed facts, we
employ a de novo standard of review.  See Coicou v. State, 39 So. 3d 237, 240
(Fla. 2010).
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by information with a violation of section 893.13(1)(a)1, Florida
Statutes (2001), sale of a controlled substance, a second degree
felony.  The same day, an Assistant Public Defender was appointed to
represent him, he was arraigned, and he entered a plea of guilty to the
charge.  From appointment of counsel to entry of the plea, about ten
minutes elapsed.  The plea was for one year of probation (with a
possibility of termination after six months), completion of a substance
abuse assessment and any recommended treatment, and the payment
of $451.00 in costs.  The maximum sentence of fifteen years in state
prison was described to Hernandez by his attorney before he agreed to
the plea.
The plea colloquy included Hernandez’s affirmative response
(in the presence of his appointed counsel) to the trial court’s question:
“Do you understand that if you are not an American citizen, the U.S.
Government could use these charges against you in deportation
proceedings?”  Hernandez also acknowledged as part of the colloquy
that he was able to speak, read, and write English.  As part of his
motion and as a proffer of his (now former) Assistant Public
Defender’s recollection of the immigration-related aspects of
Hernandez’s plea, Hernandez attached emails regarding the former
Assistant’s responses to a series of questions.  The former Assistant
acknowledged that he had no specific recollection of the case, as he
had handled “thousands” of them while a Public Defender, but he
reported that he confined his immigration-related advice to his clients
to the fact “that a plea could/may affect their immigration status.”  He
did say that he “definitely did not discuss the immigration
consequences with any outside immigration counsel and did not refer
Hernandez to an immigration specialist.”
Evidence also was proffered to show that after this incident
Hernandez had gone on to attain a number of achievements—a
Bachelor of Arts Degree in 2005, and gainful employment as a
computer network administrator for a Miami bank group.  But
unbeknownst to Hernandez in 2001, and apparently to his Assistant
Public Defender as well, his plea and conviction was and is classified
as an “aggravated felony” under the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(B), mandating his deportation under 8 U.S.C.
§ 1227(a)(2)(A)(iii), and (B)(i).  The plea and conviction also bar
Hernandez’s eligibility for discretionary relief from deportability
under 8 U.S.C. §§ 1182(h) or 1229b(a)(3).
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Hernandez v. State, 61 So. 3d at 1146-47 (footnote omitted).
On March 31, 2010 (nine years after Hernandez entered his plea), the United
States Supreme Court in Padilla, 130 S. Ct. at 1478, held that defense counsel was
deficient for failing to advise his client of mandatory deportation consequences for
pleading guilty.  Padilla, a long-time, permanent resident of the United States, pled
guilty to drug-transportation charges after receiving advice from defense counsel
“that [Padilla] ‘did not have to worry about immigration status since he had been in
the country so long.’ ”  Id. at 1478 (quoting Commonwealth v. Padilla, 253 S.W.3d
482, 483 (Ky. 2008)).2  However, after discovering that the plea “made his
deportation virtually mandatory” under the Immigration and Nationality Act,
Padilla filed a postconviction motion alleging ineffective assistance of counsel.  Id.
at 1478.  The Supreme Court noted that Padilla’s was “not a hard case in which to
find deficiency:  The consequences of Padilla’s plea could easily be determined
from reading the removal statute, his deportation was presumptively mandatory,
and his counsel’s advice was incorrect.”  Id. at 1483.
Although Padilla’s counsel had supplied incorrect advice, the United States
Supreme Court specifically rejected the suggestion that it should limit its holding
to cases that, like Padilla, involved affirmative misadvice.  Id. at 1484.  Instead, it
2.  Both the Kentucky Supreme Court and the United States Supreme Court
assumed the truth of Padilla’s allegations.  See Padilla, 130 S. Ct. at 1478, 1486-
87.
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ruled that defense counsel must, at a minimum, “inform her client whether his plea
carries a risk of deportation.”  Id. at 1486.  Furthermore, the United States Supreme
Court specified that, depending on the clarity and certainty of the deportation
consequence, defense counsel’s duty to advise under Padilla may be heightened:
Immigration law can be complex, and it is a legal specialty of
its own.  Some members of the bar who represent clients facing
criminal charges, in either state or federal court or both, may not be
well versed in it.  There will, therefore, undoubtedly be numerous
situations in which the deportation consequences of a particular plea
are unclear or uncertain.  The duty of the private practitioner in such
cases is more limited.  When the law is not succinct and
straightforward . . .  a criminal defense attorney need do no more than
advise a noncitizen client that pending criminal charges may carry a
risk of adverse immigration consequences.  But when the deportation
consequence is truly clear, as it was in this case, the duty to give
correct advice is equally clear.
Id. at 1483 (footnote omitted).
Following the United States Supreme Court’s decision in Padilla, Hernandez
filed a postconviction motion alleging that his counsel failed to advise him that
deportation was mandatory for the offense to which he pled nine years earlier and
that he would not have pled guilty if he had known that it “would mandate [his]
deportation without recourse.”  Hernandez, 61 So. 3d at 1147.  The circuit court,
relying on the Fourth District’s decision in Flores v. State, 57 So. 3d 218 (Fla. 4th
DCA 2010), summarily denied Hernandez’s motion on the basis that the
immigration consequences warning included in the plea colloquy pursuant to rule
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3.172(c)(8)3 precluded Hernandez from establishing the requisite prejudice under
Strickland v. Washington, 466 U.S. 668 (1984).4  See id.
On appeal, the Third District affirmed the denial of Hernandez’s
postconviction motion on the separate basis that, in its view, Padilla does not apply
retroactively.  Id. at 1151.  Additionally, the Third District expressed disagreement
with the Fourth District’s reasoning in Flores that the warning given by the trial
court precludes any finding of prejudice resulting from counsel’s deficiency.  See
3.  Florida Rule of Criminal Procedure 3.172(c)(8) requires that a trial court,
before accepting a plea of guilty or nolo contendere, issue standard warnings to
defendants to ensure the voluntariness of their plea:
(c)  Determination of Voluntariness.  Except when a defendant is not
present for a plea . . . the trial judge should, when determining
voluntariness, place the defendant under oath and shall address the
defendant personally and shall determine that he or she understands:
(8)  that if he or she pleads guilty or nolo contendere, if he or
she is not a United States citizen, the plea may subject him or
her to deportation pursuant to the laws and regulations
governing the United States Immigration and Naturalization
Service.  It shall not be necessary for the trial judge to inquire
as to whether the defendant is a United States citizen, as this
admonition shall be given to all defendants in all cases. . .
Rule 3.172(c)(8) was identical in substance at the time Hernandez pled guilty, and
it has remained substantively unaltered since it original adoption in 1988.  See In re
Amendments to Fla. R. Crim. P., 536 So. 2d 992 (Fla. 1988).
4.  The Fifth District has reached the same conclusion.  See Santiago v.
State, 65 So. 3d 575, 576 (Fla. 5th DCA 2011) (“[T]he trial court’s warning to
Santiago that he may be deported as a result of his plea cured any prejudice that
might have flowed from counsel’s misadvice (assuming any misadvice was
given).”).
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id. at 1147.  The Third District instead stated that, “[u]nder our reading of Padilla,
constitutionally effective defense counsel is required . . . to furnish a ‘will subject
you,’ not a ‘may subject you’ warning to his or her client” where the deportation
consequences of a plea are truly clear as a matter of law.  Id. at 1148 (emphases
added).  Finally, the Third District certified the questions described earlier
concerning rule 3.172(c)(8) deportation warnings and the retroactivity of Padilla.
II.  ANALYSIS
A.
The United State Supreme Court’s decision in Strickland, 466 U.S. at 687,
outlines two requirements for establishing an ineffective assistance of counsel
claim:
First, the defendant must show that counsel’s performance was
deficient.  This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.  Second, the defendant must
show that the deficient performance prejudiced the defense.  This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
In the plea context, a defendant satisfies the prejudice requirement only
where he can demonstrate “a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.”  Hill
v. Lockhart, 474 U.S. 52, 59 (1985).   “[A] petitioner must convince the court that a
decision to reject the plea bargain would have been rational under the
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circumstances.”  Padilla, 130 S. Ct. at 1485 (citing Roe v. Flores-Ortega, 528 U.S.
470, 480, 486 (2000)).
In this case, assuming the truth of Hernandez’s allegations (as the United
States Supreme Court assumed the truth of Padilla’s allegations), Hernandez’s
counsel was deficient under Padilla for failing to advise Hernandez that his plea
subjected him to presumptively mandatory deportation.5  See Padilla, 130 S. Ct. at
1483.  Hernandez, like Padilla, pled to a controlled substance offense, making him
deportable, 8 U.S.C. § 1227(a)(2)(B)(i), and an aggravated felon, 8 U.S.C. §
1101(a)(43)(B).  See Hernandez, 61 So. 3d at 1146-47.  As the United States
Supreme Court in Padilla, 130 S. Ct. at 1483, observed, these statutory terms “are
succinct, clear, and explicit in defining the removal consequence for [a controlled
substance] conviction.”  Hernandez’s counsel, like “Padilla’s counsel[,] could have
easily determined that his plea would make him eligible for deportation simply
from reading the text of the statute, which addresses not some broad classification
of crimes but specifically commands removal for all controlled substances
5.  Florida, like many other jurisdictions, once classified deportation
consequences as “collateral” and held that defense counsel had no constitutional
duty to advise defendants as to the potential deportation consequences to entering a
plea.  See State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987) (“We therefore hold
that counsel’s failure to advise his client of the collateral consequence of
deportation does not constitute ineffective assistance of counsel.”).  In light of the
United States Supreme Court’s decision in Padilla, however, we recede from our
holding in Ginebra.
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convictions except for the most trivial of marijuana possession offenses.”  Padilla,
130 S. Ct. at 1483.  Yet Hernandez proffered evidence that defense counsel merely
advised Hernandez “that a plea could/may affect [Hernandez’s] immigration
status.”  Hernandez, 61 So. 3d at 1146.  Given that the deportation consequence
was “truly clear,” Hernandez’s counsel had a commensurate duty to provide the
“correct advice.”  Padilla, 130 S. Ct. at 1483.
Although defense counsel was deficient for failing to warn Hernandez of the
clear immigration consequences of his plea, the State contends that any resulting
prejudice was cured.  Specifically, the State argues that the deportation warning
required by rule 3.172(c)(8) provides notice to a defendant of deportation
consequences prior to entry of his plea, such that the defendant cannot later argue
he was prejudiced by his counsel’s failure to warn.  Hernandez responds that, given
counsel’s heightened duty in certain “truly clear” circumstances, the “may subject
you” warning in rule 3.172(c)(8) is insufficient to categorically remediate prejudice
resulting from defense counsel’s deficiency.  We agree with Hernandez and hold
that, under Padilla, the equivocal warning pursuant to rule 3.172(c)(8) does not bar
ineffective assistance of counsel claims in every instance.
Here, it is undisputed that “[t]he plea colloquy included Hernandez’s
affirmative response (in the presence of his appointed counsel) to the trial court’s
question:   ‘Do you understand that if you are not an American citizen, the U.S.
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Government could use these charges against you in deportation proceedings?’ ”
Hernandez, 61 So. 3d at 1146.  However, because Padilla requires from counsel
more than this type of equivocal warning, the trial court’s warning could not have
sufficiently removed the prejudice, if any, in this case.  Where deportation
consequences are “truly clear,” the United States Supreme Court in Padilla requires
effective counsel to provide more than equivocal advice concerning those
consequences.  Padilla, 130 S. Ct. at 183.  At least in those circumstances, an
equivocal warning from the trial court is less than what is required from counsel
and therefore cannot, by itself, remove prejudice resulting from counsel’s
deficiency.
The fact that an equivocal warning from the trial court is insufficient to
categorically eliminate prejudice in every circumstance is not to say, however, that
the plea colloquy is meaningless, as the Fourth District in Flores reasoned.  See
Flores, 57 So. 3d at 220.  Instead, a colloquy containing an equivocal warning from
the trial court and an acknowledgment from the defendant contributes to the
totality of the circumstances by providing evidence that the defendant is aware of
the possibility that a plea could affect his immigration status.  In other words, the
colloquy required by rule 3.172(c)(8) may refute a defendant’s postconviction
claim that he had no knowledge that a plea could have possible immigration
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consequences; however, it cannot by itself refute a claim that he was unaware of
presumptively mandatory consequences.
B.
We agree with the Third District that Padilla does not apply retroactively.
See Hernandez, 61 So. 3d at 1151.6
Under Witt v. State, 387 So. 2d 922 (Fla. 1980), “a new rule of law will not
apply retroactively unless the new rule ‘(a) emanates from this Court or the United
States Supreme Court, (b) is constitutional in nature, and (c) constitutes a
development of fundamental significance.’ ”  Chandler v. Crosby, 916 So. 2d 728,
729 (Fla. 2005) (quoting Witt, 387 So. 2d at 931).  This Court has, applying Witt,
“rarely f[ound] a change in decisional law to require retroactive application.”
Hughes v. State, 901 So. 2d 837, 846 (Fla. 2005) (quoting Mitchell v. Moore, 786
So. 2d 521, 529 (2001)).  Because, in this case, Padilla clearly meets the first two
requirements, the analysis turns on whether Padilla “constitutes a development of
fundamental significance.”  Witt, 387 So. 2d at 931; see Johnson v. State, 904 So.
2d 400, 409 (Fla. 2005); Hughes, 901 So. 2d at 840.
6.  The Second, Fourth, and Fifth Districts have also held that Padilla should
not be applied retroactively.  See Rodriguez v. State, 75 So. 3d 391 (Fla. 4th DCA
2011); State v. Shaikh, 65 So. 3d 539 (Fla. 5th DCA 2011); Barrios-Cruz v. State,
63 So. 3d 868 (Fla. 2d DCA 2011).
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“[A] decision is of fundamental significance when it either places ‘beyond
the authority of the state the power to regulate certain conduct or impose certain
penalties’ or when the rule is ‘of sufficient magnitude to necessitate retroactive
application[.]’ ”  Chandler, 916 So. 2d at 729 (quoting Witt, 387 So. 2d at 929).
Padilla, like other Sixth Amendment cases addressed by this Court under Witt,
clearly “does not fall within the first category because it does not prohibit the
government from criminalizing certain conduct or imposing certain penalties.”
Johnson, 904 So. 2d at 409.  Therefore, this Court must determine whether the rule
announced in Padilla is “of sufficient magnitude to necessitate retroactive
application” after assessing three factors:   “(a) the purpose to be served by the new
rule; (b) the extent of reliance on the old rule; and (c) the effect on the
administration of justice of a retroactive application of the new rule.”  Witt, 387
So. 2d at 926, 929.
The first factor weighs against a finding that Padilla is retroactively
applicable.  Padilla’s purpose is to ensure “accurate legal advice for noncitizens
accused of crimes,” and to bring “informed consideration of possible deportation”
into the plea-bargaining process.  Padilla, 130 S. Ct. at 1480, 1486.  Yet Padilla
focuses solely on the duty of defense counsel and, according to the United States
Supreme Court, merely encapsulates existing professional norms within the
established framework of the Sixth Amendment right to effective assistance of
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counsel.  See Padilla, 130 S. Ct. at 1485.  Padilla neither “alter[s] the range of
conduct or class of persons that the law punishes,” Johnson, 904 So. 2d at 409, nor
“affect[s] the determination of guilt or innocence,” Hughes, 901 So. 2d at 841.
Additionally, in Florida, Padilla does not exist as the only mechanism by which a
noncitizen is informed of potential immigration consequences to entering a plea.
Although rule 3.172(c)(8) is unable to completely eliminate prejudice from
counsel’s deficiency in every instance, the rule has, since its adoption in 1988, at
least ensured that those convicted and ready to admit to commission of a crime
receive some notification that deportation is possible.  This Court has further
provided to noncitizen defendants a mechanism for vacating their plea if the trial
court does not advise the defendant correctly under rule 3.172(c)(8).  See State v.
Green, 944 So. 2d 208 (Fla. 2006).  The fact that this warning has existed within
the plea process effectively limits Padilla to its pronouncement of a heightened
duty for defense counsel in certain situations.
Witt’s second factor also weighs against retroactive application of Padilla.
This Court had, since 1987, effectively relieved attorneys of the constitutional
responsibility to advise their clients of the potential consequence of deportation.
See State v. Ginebra, 511 So. 2d 960 (Fla. 1987).  Additionally, postconviction
courts have relied on the old rule in addressing ineffective assistance of counsel
claims.  See Barrios-Cruz, 63 So. 3d at 872-73; Hernandez, 61 So. 3d at 1150-51.
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Moreover, our reliance on the old rule “has been entirely in good faith.”  Johnson,
904 So. 2d at 410.  Prior to Padilla, the United States Supreme Court had not
required defense counsel to advise clients concerning collateral matters, and at
least nine United States Courts of Appeals and thirty states had affirmatively held
that counsel was not required to provide such advice.  See Chaidez v. United
States, 655 F.3d 684, 690-91 (7th Cir. 2011).
Finally, Witt’s third factor weighs against retroactive application because
retroactive application of Padilla would have an adverse impact on the
administrative of justice.  As the Third District in Hernandez observed,
[t]he insufficiency of the previously-sufficient deportation warning
during thousands of past plea colloquies for noncitizens would pave
the way for motions to vacate those pleas and convictions.
Evidentiary hearings would follow.  The concern expressed in another
immigration warning case, that for any such case in which a plea is set
aside, “the passage of time between the guilty plea and the
postconviction motion puts the State at a great disadvantage in
seeking to try the case to conviction,” State v. Green, 944 So. 2d 208,
216 (Fla. 2006), applies with equal force here.
Hernandez, 61 So. 3d at 1151.  Indeed, many of the cases could involve overturned
convictions, stale records, lost evidence, and unavailable witnesses.  Chandler, 916
So. 2d at 730-31.
Accordingly, because all three Witt factors weigh against retroactive
application, we hold that the rule announced in Padilla does not apply
retroactively.
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III.  CONCLUSION
For the foregoing reasons, we hold that rule 3.172(c)(8) does not, in every
instance, cure prejudice resulting from defense counsel’s failure to advise of
deportation consequences as required by Padilla.  However, we also hold that
Padilla does not apply retroactively.  We therefore answer both certified questions
in the negative and approve of the Third District’s decision below.
It is so ordered.
POLSTON, C.J, and LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ.,
concur.
PARIENTE, J., concurs with an opinion, in which QUINCE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I agree with the majority that Padilla v. Kentucky, 130 S. Ct. 1473 (2010),
does not apply retroactively and therefore does not apply to this case.  For the
reasons more fully explained in my concurrence in Castano v. State, No. SC11-
1571 (Fla. Nov. 21, 2012), Padilla applies to those cases in which, at the time
Padilla was decided, the initial postconviction proceeding was not yet final and the
defendant had raised a claim of ineffective assistance of counsel for failing to
advise of the deportation consequences of a plea.  Here, however, Hernandez
waited nine years after his 2001 plea to bring a claim of ineffective assistance of
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counsel for failure to advise of deportation consequences by filing a postconviction
motion after Padilla was decided.
QUINCE, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Third District - Case No. 3D10-2462
(Miami-Dade County)
Sui Chung, Immigration Law & Litigation Group, Miami, Florida and Michael S.
Vastine, St. Thomas University School of Law, Director Immigration Clinic,
Assistant Professor of Law, Miami Gardens, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Richard L. Polin,
Chief Assistant Attorney General and Timothy Rhys Morgan Thomas, Assistant
Attorney General, Miami, Florida; and Kristen Lynn Davenport and Wesley
Harold Heidt, Assistant Attorneys General, Daytona Beach, Florida,
for Respondent
Rebecca A. Sharpless, University of Miami School of Law, Immigration Clinic,
Coral Gables, Florida and Lana Chiariello, Americans for Immigrant Justice,
Miami, Florida,
for Amicus Curiae, Lawyers Association American Immigration,
Beatriz A. Llorente, President, Miami Chapter of Florida Association of Criminal
Defense Lawyers, Miami, Florida; and Sonya Rudenstine, Gainesville, Florida; and
Michael Robert Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee,
Florida,
for Amicus Curiae Florida Association of Criminal Defense Lawyers
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