Judges advise defense attorneys to ask clients about citizenship

The Indiana Court of Appeals used its decision on a post-conviction relief appeal to “encourage” criminal defense attorneys to find out the citizenship of their clients and advise the clients as to the risks of deportation after pleading guilty.

Mark Clarke, who came to the U.S. from Barbados, claimed his trial attorney, Michael Caudill, provided ineffective assistance because he failed to inform Clarke that if he pleaded guilty to a drug charge, he could be deported. Caudill admitted in an affidavit that he did not advise Clarke that his guilty plea to Class B felony dealing in cocaine could subject him to deportation.

The post-conviction court denied Clarke’s petition for relief, and the Court of Appeals affirmed. In Mark Clarke v. State of Indiana, 49A02-1202-PC-65, the judges analyzed his case using Segura v. State, 749 N.E.2d 496 (Ind. 2001). Clarke argued that the requisite special circumstances in his case that justify setting aside the plea are that he has been in the U.S. for 11 years, his two children were born here, and, if deported, he may not see them again.

Judge Ezra Friedlander wrote that 11 years is not a long enough time to compel a finding of special circumstances and pointed out that Clarke’s two children were still in-utero when he pleaded guilty in 2007 and he is not married to either of his children’s mothers.

Also, the state had a strong case against Clarke if it were to proceed to trial, which included the drugs, a large amount of cash in his car, and likely the testimony of the two officers at the scene of the traffic stop and arrest. Clarke also received a significant benefit in exchange for his guilty plea, Friedlander noted.

He failed to establish that he was prejudiced by Caudill’s failure to advise him of the risk of deportation.

The appellate court also devoted a portion of its opinion to suggest that defense attorneys find out whether their clients are citizens and, if not, tell them about the risks of deportation. This would “obviate the need for post-conviction and appellate courts to undertake a ‘special circumstances’ analysis,” he wrote.

Friedlander also pointed out that this issue is coming up in other states, and the early trend appears to be in favor of imposing a duty on criminal defense attorneys to ascertain the citizenship status of their clients.