Posts Tagged ‘Criminal Defense Lawyers’
X, 49, of Woodbridge, and Y, 31, were charged with contributing to the delinquency of a minor
It is very important to have the best criminal defense possible when facing a criminal charge.
The SRIS Law Group Virginia criminal defense attorneys can defend you against any type of criminal charge.
Our Virginia criminal defense lawyers have the experience to defend you against any type of criminal charge.
Contact a SRIS Law Group Virginia criminal defense lawyer in Virginia.
A Suffolk man who raped and stabbed a woman returning to her apartment in October 2008 was just sentenced for the crime.
It is very important to have the best criminal defense possible when facing a criminal charge.
The SRIS Law Group Virginia criminal defense attorneys can defend you against any type of criminal charge.
Our Virginia criminal defense lawyers have the experience to defend you against any type of criminal charge.
Contact a SRIS Law Group Virginia criminal defense lawyer in Virginia.
Dwayne Lamont Kelly, of 154 Bedford St., Cumberland, charged with two counts each of forgery and uttering, conspiracy, and fraudulent scheme.
It is very important to have the best federal criminal defense possible when facing a federal criminal charge.
The SRIS Law Group Virginia federal criminal defense attorneys can defend you against any type of federal criminal charge.
Our Virginia federal criminal defense lawyers have the experience to defend you against any type of federal criminal charge.
Contact a SRIS Law Group Virginia federal criminal defense lawyer in Virginia.
VIRGINIA CRIMINAL DEFENSE LAWYERS
POSSESSION OF FALSE IDENTIFICATION OR DOCUMENTS
Possession of a false ID is a crime in Virginia. Depending on the statute you are charged with, you may be facing a misdemeanor or a felony. Either way, you are facing a criminal charge in Virginia that can affect your job, your freedom, your security clearance, etc.
If you are in college or high school and you are charged with possession of a false ID, you may get kicked out of school or college.
If you are in the US illegally and you present a false social security card or driver’s license in Virginia, you could face either state or federal charges.
If you have been charged with possession of a false identification card, you should consult with a Virginia criminal lawyer who has defended clients charged with similar offenses.
Call the SRIS Law Group Virginia criminal defense attorneys who have defended clients charged with a variety of identification fraud cases.
Our Virginia staff and attorneys speak the following languages in addition to English: Arabic, Spanish, Mandarin, Cantonese, Hindi, Telugu, Tamil & French.
The following are some of the Virginia laws regarding identity fraud:
- VA Code § 4.1-305. Purchasing or possessing alcoholic beverages unlawful in certain cases; venue; exceptions; penalty; forfeiture; deferred proceedings; treatment and education programs and services
- VA Code § 18.2-186.3. Identity theft; penalty; restitution; victim assistance
- VA Code § 18.2-172. Forging, uttering, etc., other writings
- VA Code § 18.2-204. False statement for the purpose of defrauding industrial sick benefit company
- VA Code § 18.2-204.2. Manufacture, sale, etc., or possession of fictitious, facsimile or simulated official license or identification; penalty
- VA Code § 46.2-105.2. Obtaining documents from the Department when not entitled thereto; penalty
- VA Code § 46.2-345. Issuance of special identification cards; fee; confidentiality; penalties
- VA Code § 46.2-346. Unlawful acts enumerated
- VA Code § 46.2-347. Fraudulent use of driver’s license or Department of Motor Vehicles identification card to obtain alcoholic beverages; penalties
- VA Code § 46.2-348. Fraud or false statements in applications for license; penalties
VA Code § 4.1-305. Purchasing or possessing alcoholic beverages unlawful in certain cases; venue; exceptions; penalty; forfeiture; deferred proceedings; treatment and education programs and services
A. No person to whom an alcoholic beverage may not lawfully be sold under § 4.1-304 shall consume, purchase or possess, or attempt to consume, purchase or possess, any alcoholic beverage, except (i) pursuant to subdivisions 1 through 7 of § 4.1-200; (ii) where possession of the alcoholic beverages by a person less than 21 years of age is due to such person’s making a delivery of alcoholic beverages in pursuance of his employment or an order of his parent; or (iii) by any state, federal, or local law-enforcement officer when possession of an alcoholic beverage is necessary in the performance of his duties. Such person may be prosecuted either in the county or city in which the alcohol was possessed or consumed, or in the county or city in which the person exhibits evidence of physical indicia of consumption of alcohol. It shall be an affirmative defense to a charge of a violation of this subsection if the defendant shows that such consumption or possession was pursuant to subdivision 7 of § 4.1-200.
B. No person under the age of 21 years shall use or attempt to use any (i) altered, fictitious, facsimile or simulated license to operate a motor vehicle, (ii) altered, fictitious, facsimile or simulated document, including, but not limited to a birth certificate or student identification card, or (iii) motor vehicle operator’s license, birth certificate or student identification card of another person in order to establish a false identification or false age for himself to consume, purchase or attempt to consume or purchase an alcoholic beverage.
C. Any person found guilty of a violation of this section shall be guilty of a Class 1 misdemeanor; and upon conviction, (i) such person shall be ordered to pay a mandatory minimum fine of $ 500 or ordered to perform a mandatory minimum of 50 hours of community service as a condition of probation supervision and (ii) the license to operate a motor vehicle in the Commonwealth of any such person age 18 or older shall be suspended for a period of not less than six months and not more than one year; the license to operate a motor vehicle in the Commonwealth of any juvenile shall be handled in accordance with the provisions of § 16.1-278.9. The court, in its discretion and upon a demonstration of hardship, may authorize an adult convicted of a violation of this section the use of a restricted permit to operate a motor vehicle in accordance with the provisions of subsection E of § 18.2-271.1 or when referred to a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1. During the period of license suspension, the court may require an adult who is issued a restricted permit under the provisions of this subsection to be (a) monitored by an alcohol safety action program, or (b) supervised by a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. The alcohol safety action program or local community-based probation services agency shall report to the court any violation of the terms of the restricted permit, the required alcohol safety action program monitoring or local community-based probation services and any condition related thereto or any failure to remain alcohol-free during the suspension period.
D. Any alcoholic beverage purchased or possessed in violation of this section shall be deemed contraband and forfeited to the Commonwealth in accordance with § 4.1-338.
E. Any retail licensee who in good faith promptly notifies the Board or any state or local law-enforcement agency of a violation or suspected violation of this section shall be accorded immunity from an administrative penalty for a violation of § 4.1-304.
F. When any adult who has not previously been convicted of underaged consumption, purchase or possession of alcoholic beverages in Virginia or any other state or the United States is before the court, the court may, upon entry of a plea of guilty or not guilty, if the facts found by the court would justify a finding of guilt of a violation of subsection A, without entering a judgment of guilt and with the consent of the accused, defer further proceedings and place him on probation subject to appropriate conditions. Such conditions may include the imposition of the license suspension and restricted license provisions in subsection C. However, in all such deferred proceedings, the court shall require the accused to enter a treatment or education program or both, if available, that in the opinion of the court best suits the needs of the accused. If the accused is placed on local community-based probation, the program or services shall be located in any of the judicial districts served by the local community-based probation services agency or in any judicial district ordered by the court when the placement is with an alcohol safety action program. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, (ii) certified by the Commission on VASAP, or (iii) by a program or services made available through a community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, if one has been established for the locality. When an offender is ordered to a local community-based probation services rather than the alcohol safety action program, the local community-based probation services agency shall be responsible for providing for services or referring the offender to education or treatment services as a condition of probation.
Upon violation of a condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the conditions, the court shall discharge the person and dismiss the proceedings against him without an adjudication of guilt. A discharge and dismissal hereunder shall be treated as a conviction for the purpose of applying this section in any subsequent proceedings.
When any juvenile is found to have committed a violation of subsection A, the disposition of the case shall be handled according to the provisions of Article 9 (§ 16.1-278 et seq.) of Chapter 11 of Title 16.1.
VA Code § 18.2-186.3. Identity theft; penalty; restitution; victim assistance
A. It shall be unlawful for any person, without the authorization or permission of the person or persons who are the subjects of the identifying information, with the intent to defraud, for his own use or the use of a third person, to:
1. Obtain, record or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
2. Obtain money, credit, loans, goods or services through the use of identifying information of such other person;
3. Obtain identification documents in such other person’s name; or
4. Obtain, record or access identifying information while impersonating a law-enforcement officer or an official of the government of the Commonwealth.
B. It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to sell or distribute the information to another to:
1. Fraudulently obtain, record or access identifying information that is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
2. Obtain money, credit, loans, goods or services through the use of identifying information of such other person;
3. Obtain identification documents in such other person’s name; or
4. Obtain, record or access identifying information while impersonating a law-enforcement officer or an official of the Commonwealth.
B1. It shall be unlawful for any person to use identification documents or identifying information of another person, whether that person is dead or alive, or of a false or fictitious person, to avoid summons, arrest, prosecution or to impede a criminal investigation.
C. As used in this section, “identifying information” shall include but not be limited to: (i) name; (ii) date of birth; (iii) social security number; (iv) driver’s license number; (v) bank account numbers; (vi) credit or debit card numbers; (vii) personal identification numbers (PIN); (viii) electronic identification codes; (ix) automated or electronic signatures; (x) biometric data; (xi) fingerprints; (xii) passwords; or (xiii) any other numbers or information that can be used to access a person’s financial resources, obtain identification, act as identification, or obtain money, credit, loans, goods or services.
D. Violations of this section shall be punishable as a Class 1 misdemeanor. Any violation resulting in financial loss of greater than $ 200 shall be punishable as a Class 6 felony. Any second or subsequent conviction shall be punishable as a Class 6 felony. Any violation of subsection B where five or more persons’ identifying information has been obtained, recorded, or accessed in the same transaction or occurrence shall be punishable as a Class 6 felony. Any violation of subsection B where 50 or more persons’ identifying information has been obtained, recorded, or accessed in the same transaction or occurrence shall be punishable as a Class 5 felony. Any violation resulting in the arrest and detention of the person whose identification documents or identifying information were used to avoid summons, arrest, prosecution, or to impede a criminal investigation shall be punishable as a Class 6 felony. In any proceeding brought pursuant to this section, the crime shall be considered to have been committed in any locality where the person whose identifying information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in such locality.
E. Upon conviction, in addition to any other punishment, a person found guilty of this offense shall be ordered by the court to make restitution as the court deems appropriate to any person whose identifying information was appropriated or to the estate of such person. Such restitution may include the person’s or his estate’s actual expenses associated with correcting inaccuracies or errors in his credit report or other identifying information.
F. Upon the request of a person whose identifying information was appropriated, the Attorney General may provide assistance to the victim in obtaining information necessary to correct inaccuracies or errors in his credit report or other identifying information; however, no legal representation shall be afforded such person.
VA Code § 18.2-172. Forging, uttering, etc., other writings
If any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170, to the prejudice of another’s right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony. Any person who shall obtain, by any false pretense or token, the signature of another person, to any such writing, with intent to defraud any other person, shall be deemed guilty of the forgery thereof, and shall be subject to like punishment.
VA Code § 18.2-204. False statement for the purpose of defrauding industrial sick benefit company
Any agent, physician or other person who shall knowingly or willfully make any false or fraudulent statement or representation of any material fact:
(1) In or with reference to any application for insurance in any industrial sick benefit company licensed, or which may be licensed, to do business in this Commonwealth,
(2) As to the death or disability of a policy or certificate holder in any such company,
(3) For the purpose of procuring or attempting to procure the payment of any false or fraudulent claim against any such company, or
(4) For the purpose of obtaining or attempting to obtain any money from or benefit in any such company,
shall be guilty of a Class 3 misdemeanor.
Any such person who shall willfully make a false statement of any material fact or thing in a sworn statement as to the death or disability of a policy or certificate holder in any such company for the purpose of procuring payment of a benefit named in the policy or certificate of such holder, shall be guilty of perjury, and shall be proceeded against and punished as provided by the statutes of this Commonwealth in relation to the crime of perjury.
VA Code § 18.2-204.2. Manufacture, sale, etc., or possession of fictitious, facsimile or simulated official license or identification; penalty
A. It shall be unlawful for any person to manufacture, advertise for sale, sell or possess any fictitious, facsimile or simulated driver’s license issued by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any foreign country or government; United States Armed Forces identification card; United States passport or foreign government visa; Virginia Department of Motor Vehicles special identification card; official identification issued by any other federal, state or foreign government agency; or official university or college student identification card, or in any way reproduce any identification card or facsimile thereof in such a manner that it could be mistaken for a valid license or identification of any type specified in this subsection.
B. Any person manufacturing, advertising for sale, selling or reproducing such card or facsimile thereof shall be guilty of a Class 1 misdemeanor.
C. Any person possessing any such card or facsimile thereof shall be guilty of a Class 2 misdemeanor.
D. The provisions of this section shall not preclude an election to prosecute under § 18.2-172, except to prosecute for forgery or uttering of such license or identification card or facsimile thereof as proof of age.
VA Code § 46.2-105.2. Obtaining documents from the Department when not entitled thereto; penalty
A. It shall be unlawful for any person to obtain a Virginia driver’s license, special identification card, vehicle registration, certificate of title, or other document issued by the Department if such person has not satisfied all legal and procedural requirements for the issuance thereof, or is otherwise not legally entitled thereto, including obtaining any document issued by the Department through the use of counterfeit, forged, or altered documents.
B. It shall be unlawful to aid any person to obtain any driver’s license, special identification card, vehicle registration, certificate of title, or other document in violation of the provisions of subsection A.
C. It shall be unlawful to knowingly possess or use for any purpose any driver’s license, special identification card, vehicle registration, certificate of title, or other document obtained in violation of the provisions of subsection A.
D. A violation of any provision of this section shall constitute a Class 2 misdemeanor if a person is charged and convicted of a violation of this section that involved the unlawful obtaining or possession of any document issued by the Department for the purpose of engaging in any age-limited activity, including but not limited to obtaining, possessing, or consuming alcoholic beverages. However, if a person is charged and convicted of any other violation of this section, such offense shall constitute a Class 6 felony.
E. Whenever it appears to the satisfaction of the Commissioner that any driver’s license, special identification card, vehicle registration, certificate of title, or other document issued by the Department has been obtained in violation of this section, it may be cancelled by the Commissioner, who shall mail notice of the cancellation to the address of record maintained by the Department.
VA Code § 46.2-345. Issuance of special identification cards; fee; confidentiality; penalties
A. On the application of any person who is a resident of the Commonwealth or the parent or legal guardian of any such person who is under the age of 15, the Department shall issue a special identification card to the person provided:
1. Application is made on a form prescribed by the Department and includes the applicant’s full legal name; year, month, and date of birth; social security number; sex; and residence address;
2. The applicant presents, when required by the Department, proof of identity, legal presence, residency, and social security number or non-work authorized status;
3. The Department is satisfied that the applicant needs an identification card or the applicant shows he has a bona fide need for such a card; and
4. The applicant does not hold a driver’s license, commercial driver’s license, temporary driver’s permit, learner’s permit, or motorcycle learner’s permit.
Persons 70 years of age or older may exchange a valid Virginia driver’s license for a special identification card at no fee. Special identification cards subsequently issued to such persons shall be subject to the regular fees for special identification cards.
B. The fee for the issuance of an original or renewal special identification card is $ 5. The fee for the issuance of a duplicate or reissue of a special identification card is $ 5. Persons 21 years old or older may be issued a scenic special identification card for an additional fee of $ 5.
C. Every special identification card shall expire on the last day of the month of birth of the applicant in years in which the applicant attains an age exactly divisible by five. At no time shall any special identification card be issued for less than three nor more than seven years, except under the provisions of subsection B of § 46.2-328.1 and except that those cards issued to children under the age of 15 shall expire on the child’s sixteenth birthday, thereafter the special identification card may be renewed on or before the last day of the month of birth of the applicant and shall be valid for five years, expiring in the next year in which the applicant’s age is exactly divisible by five, except under the provisions of subsection B of § 46.2-328.1.
D. A special identification card issued under this section may be similar in size, shape, and design to a driver’s license, and include a photograph of its holder, but the card shall be readily distinguishable from a driver’s license and shall clearly state that it does not authorize the person to whom it is issued to drive a motor vehicle. Every applicant for a special identification card shall appear in person before the Department to apply for a renewal, duplicate or reissue unless specifically permitted by the Department to apply in another manner.
E. Special identification cards, for persons at least 15 years old but less than 21 years old, shall be immediately and readily distinguishable from those issued to persons 21 years old or older. Distinguishing characteristics shall include unique design elements of the document and descriptors within the photograph area to identify persons who are at least 15 years old but less than 21 years old. These descriptors shall include the month, day, and year when the person will become 21 years old.
F. Special identification cards for persons under age 15 shall bear a full face photograph. The special identification card issued to persons under age 15 shall be readily distinguishable from a driver’s license and from other special identification cards issued by the Department. Such cards shall clearly indicate that it does not authorize the person to whom it is issued to drive a motor vehicle.
G. Unless otherwise prohibited by law, a valid Virginia driver’s license may be surrendered for a special identification card without the applicant’s having to present proof of legal presence as required by § 46.2-328.1 if the Virginia driver’s license is unexpired and it has not been revoked, suspended, or cancelled. The special identification card shall be considered a reissue and the expiration date shall be the last day of the month of the surrendered driver’s license’s month of expiration.
H. Any personal information, as identified in § 2.2-3801, which is retained by the Department from an application for the issuance of a special identification card is confidential and shall not be divulged to any person, association, corporation, or organization, public or private, except to the legal guardian or the attorney of the applicant or to a person, association, corporation, or organization nominated in writing by the applicant, his legal guardian, or his attorney. This subsection shall not prevent the Department from furnishing the application or any information thereon to any law-enforcement agency.
I. Any person who uses a false or fictitious name or gives a false or fictitious address in any application for an identification card or knowingly makes a false statement or conceals a material fact or otherwise commits a fraud in any such application shall be guilty of a Class 2 misdemeanor. However, where the name or address is given, or false statement is made, or fact is concealed, or fraud committed, with the intent to purchase a firearm or where the identification card is obtained for the purpose of committing any offense punishable as a felony, a violation of this section shall constitute a Class 4 felony.
J. The Department may promulgate regulations necessary for the effective implementation of the provisions of this section.
K. The Department shall utilize the various communications media throughout the Commonwealth to inform Virginia residents of the provisions of this section and to promote and encourage the public to take advantage of its provisions.
L. The Department shall electronically transmit application information to the Department of State Police, in a format approved by the State Police, for comparison with information contained in the Virginia Criminal Information Network and National Crime Information Center Convicted Sexual Offender Registry Files, at the time of issuance of a special identification card. Whenever it appears from the records of the State Police that a person has failed to comply with the duty to register or reregister pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, the State Police shall promptly investigate and, if there is probable cause to believe a violation has occurred, obtain a warrant or assist in obtaining an indictment charging a violation of § 18.2-472.1 in the jurisdiction in which the person made application for the special identification card.
VA Code § 46.2-346. Unlawful acts enumerated
A. No person shall:
1. Display, cause or permit to be displayed, or have in his possession any driver’s license which he knows to be fictitious or to have been cancelled, revoked, suspended, or altered, or photographed for the purpose of evading the intent of this chapter;
2. Lend to, or knowingly permit the use of by one not entitled thereto, any driver’s license issued to the person so lending or permitting the use thereof;
3. Display or represent as his own any driver’s license not issued to him;
4. Reproduce by photograph or otherwise, any driver’s license, temporary driver’s permit, learner’s permit, or special identification card issued by the Department with the intent to commit an illegal act;
5. Fail or refuse to surrender to the Department, on demand, any driver’s license issued in the Commonwealth or any other state when the license has been suspended, cancelled, or revoked by proper authority in the Commonwealth, or any other state as provided by law, or to fail or refuse to surrender the suspended, cancelled, or revoked license to any court in which a driver has been tried and convicted for the violation of any law or ordinance of the Commonwealth or any county, city, or town thereof, regulating or affecting the operation of a motor vehicle.
B. Any law-enforcement officer empowered to enforce the provisions of this title may retain any driver’s license held in violation of this section and shall submit the license to the appropriate court for evidentiary purposes.
VA Code § 46.2-347. Fraudulent use of driver’s license or Department of Motor Vehicles identification card to obtain alcoholic beverages; penalties
Any underage person as specified in § 4.1-304 who knowingly uses or attempts to use a forged, deceptive or otherwise nongenuine driver’s license issued by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any foreign country or government; United States Armed Forces identification card; United States passport or foreign government visa; Virginia Department of Motor Vehicles special identification card; official identification issued by any other federal, state or foreign government agency; or official university or college student identification card to obtain alcoholic beverages shall be guilty of a Class 3 misdemeanor, and upon conviction of a violation of this section, the court shall revoke such convicted person’s driver’s license or privilege to drive a motor vehicle for a period of not less than thirty days nor more than one year.
VA Code § 46.2-348. Fraud or false statements in applications for license; penalties
Any person who uses a false or fictitious name or gives a false or fictitious address in any application for a driver’s license, or any renewal or duplicate thereof, or knowingly makes a false statement or conceals a material fact or otherwise commits a fraud in his application shall be guilty of a Class 2 misdemeanor. However, where the license is used, or the fact concealed, or fraud is done, with the intent to purchase a firearm or use as proof of residency under § 9.1-903, a violation of this section shall be punishable as a Class 4 felony.
Import of Supreme Court’s decision in the case of Padilla vs. Kentucky
The following is an analysis by the SRIS Law Group Virginia Immigration Lawyers. If you need help with a criminal case that may have immigration consequences, contact us for help. Our immigration lawyers & criminal defense lawyers help clients in Virginia, Maryland, Massachusetts, New York, North Carolina & California.
Summary:
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug-distribution charges in Kentucky. While represented by counsel, Padilla pled guilty to the three drug charges in exchange for dismissal of the last charge and a sentence of ten years on all charges. As part of the plea agreement, Padilla agreed to serve five years of the sentence and to remain on probation for the remaining five years. Padilla claimed that he pled guilty in reliance on his defense counsel’s advice that “he did not have to worry about immigration status since he had been in the country so long.” Under federal law, Padilla’s felony drug conviction is an aggravated felony and a deportable crime. On August 18, 2004, Padilla filed a motion for post-conviction relief pursuant to Kentucky Rule of Criminal Procedure. He alleged that he had received ineffective assistance of counsel in that his attorney had misadvised him regarding the potential for deportation as a result of his guilty plea. Padilla claimed that but for his attorney’s misadvise, he would not have accepted the plea agreement. The Hardin County Circuit Court denied Padilla’s motion for relief, finding that a valid guilty plea does not require that the defendant be informed of every possible consequence of a guilty plea. On appeal, the Court of Appeals reversed the Hardin Circuit Court’s decision and remanded the case for an evidentiary hearing. The Court of Appeals found that although the Sixth Amendment does not require criminal attorneys to advise clients of collateral consequences of criminal convictions, such as deportation, the affirmative act of grossly misadvising a client of collateral consequences can justify post-conviction relief. The Supreme Court of Kentucky reversed the Court of Appeals’ decision, and reinstated the final judgment of the Hardin Circuit Court. The Supreme Court of Kentucky ruled that neither counsel’s failure to advise a client of neither collateral consequences nor counsel’s misadvice regarding collateral consequences of conviction provide a basis for post-conviction relief. Following the Supreme Court of Kentucky’s decision, Padilla petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court held that the distinction between collateral and direct consequences was ill-suited to the deportation context, so advice regarding deportation was not categorically removed from the ambit of the Sixth Amendment. Under Strickland, a court first determines whether counsel’s representation fell below an objective standard of reasonableness. Then the court asks whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter for the state courts to consider in the first instance.
Analysis:
This case has included within the ambit of sixth amendment rights, the right of a defendant to be informed of the immigration consequences of his conviction. The Court holds that the Strickland rule while applied to guilty pleas shall include effective advise on the immigration consequences of the plea as well. It is acknowledged that “as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”
To satisfy Strickland’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. While determining what constitutes constitutional deficiency in legal service, the court divides all cases that are tried into two categories. Cases in which the deportation consequences of a plea are unclear and those were the consequences are fairly apparent. In those cases where consequences of a plea are law are “not succinct and straightforward”, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here (“relevant immigration statutes are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction”), the duty to give correct advice is equally clear.
The Court rejected the view of the Solicitor General that Strickland should be applied to Padilla’s claim only to the extent that he has alleged affirmative misadvise. The Court conceded that in this case there is no relevant difference “between an act of commission and an act of omission” and observed:
A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even [*26] when answers are readily available. [] Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.
Effect of the Court’s decision:
The Solicitor general argued that the plea bargains would spur litigation and overly strain the judicial system. Kentucky contends that citizens would seek similar protection by arguing that a particular collateral consequence is just as important to them as deportation is to a non-citizen. It warns that any attempt to carve out an exception for deportation, as opposed to other types of collateral consequences, would “open the Pandora’s box of collateral matters that will have to be addressed individually by the courts, thereby further overburdening an overtaxed judicial system.”
The Court has acknowledged the concerns of the solicitor general in recognizing new grounds for attacking the validity of guilty pleas, but has observed that “the 25 years since Strickland was first applied to ineffective-assistance claims at the plea stage have shown that pleas are less frequently the subject of collateral challenges than convictions after a trial” and that “informed consideration of possible deportation can benefit both the State and noncitizen defendants, who may be able to reach agreements that better satisfy the interests of both parties.’
Possibility of retrospective effect:
Kentucky has raised concerns regarding the importance of protecting the finality of convictions obtained through guilty pleas and the Court has observed that’ “We confronted a similar “floodgates” concern in Hill, see id., at 58, 106 S. Ct. 366, 88 L. Ed. 2d 203, but nevertheless applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.”
The Court further observed that:
A flood did not follow in that decision’s wake. Surmounting Strickland’s high bar is never an easy task. See, e.g., 466 U.S., at 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (HN11 “Judicial scrutiny of counsel’s performance must be highly deferential”); id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (observing that “[a]ttorney errors . . . are as likely to be utterly harmless in a particular case as they are to be prejudicial”). Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). There is no reason to doubt that lower courts — now quite experienced with applying Strickland — can effectively and efficiently use its framework to separate [*29] specious claims from those with substantial merit.
It is also observed that, “It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains.”
The Courts have further analyzed the consequences of their judgment, in the context of retrospective application and has observed that:
[i]n the 25 years since we first applied Strickland to claims of ineffective assistance at the plea stage, practice has shown that pleas are less frequently the subject of collateral challenges than convictions obtained after a trial. Pleas account for nearly 95% of all criminal convictions. But they account for only approximately 30% of the habeas petitions filed. The nature of relief secured by a successful collateral challenge to a guilty plea — an opportunity to withdraw the plea and proceed to trial — imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential.
From the aforesaid observations of the court and the state’s concerns regarding opening of floodgates, it is evident that the instant decision can be applied to cases where deportation resulted from the convictions obtained as a result of a plea bargain.
Nineteen people from Prince George’s County have been charged with federal firearms violations, Maryland U.S. Attorney Rod J. Rosenstein said yesterday
It is very important to have the best federal criminal defense possible when facing a federal criminal charge.
The SRIS Law Group Maryland federal criminal defense attorneys can defend you against any type of federal criminal charge.
Our Maryland federal criminal defense lawyers have the experience to defend you against any type of federal criminal charge.
Contact a SRIS Law Group Maryland federal criminal defense lawyer in Maryland.
The Jaguar driver, Gabriel Poventud, 25, of Woodbridge, was arrested at the scene, Geller said. He and his daughter were not injured. Poventud was charged with child endangerment, attempted homicide, use of a firearm in the commission of a felony, shooting a missile into an occupied vehicle and reckless use of a firearm
It is very important to have the best criminal defense possible when facing a criminal charge.
The SRIS Law Group Virginia criminal defense attorneys can defend you against any type of criminal charge.
Our Virginia criminal defense lawyers have the experience to defend you against any type of criminal charge.
Contact a SRIS Law Group Virginia criminal defense lawyer in Virginia.
Police have charged a 22-year-old man in the death of a man who was found shot Friday night on LaSalle Avenue
It is very important to have the best criminal defense possible when facing a criminal charge.
The SRIS Law Group Virginia criminal defense attorneys can defend you against any type of criminal charge.
Our Virginia criminal defense lawyers have the experience to defend you against any type of criminal charge.
Contact a SRIS Law Group Virginia criminal defense lawyer in Virginia.
C.B., 41, of Richmond was charged with possession of marijuana.
It is very important to have the best criminal defense possible when facing a criminal charge.
The SRIS Law Group Virginia criminal defense attorneys can defend you against any type of criminal charge.
Our Virginia criminal defense lawyers have the experience to defend you against any type of criminal charge.
Contact a SRIS Law Group Virginia criminal defense lawyer in Virginia.
Defending Minors Against Criminal Charges in Massachusetts
If your child has been charged with a criminal offense in Massachusetts, then your child needs the help of a criminal defense lawyer who understands the Juvenile Court system in Massachusetts. Depending on the nature of the criminal charge, your child may be facing either a misdemeanor criminal charge or a felony criminal offense. Penalties for a juvenile crime can result in your child facing probation all the way up to incarceration in the county juvenile detention facility or being committed to the Department of Juvenile Justice until your child reaches the age of 21.
For certain types of crimes, a juvenile may get certified as an adult. If your child case is certified to the Circuit Court, then the juvenile will be subject to the same penalties as an adult.
How the court system treats a juvenile crime is different from the way the court system handles an individual charged as an adult. A Massachusetts criminal attorney must have a thorough understanding of the procedural rules and application of the law as it relates to juveniles. The SRIS Law Group Massachusetts juvenile criminal defense attorneys understand the emotional trauma that a parent faces when their child is facing a criminal charge and may be incarcerated to the juvenile detention facility. Due to the fact that our Massachusetts juvenile criminal defense lawyers have also prosecuted many juvenile criminal cases, our attorneys have in-depth understanding of the procedural rules and application of the law as it relates to juveniles.
The most common criminal offenses associated with juveniles are:
- Gang-related activities and violence
- Shoplifting/larceny/concealment
- Assault and battery
- Date rape
- Property crimes/trespassing/vandalism
- Underage drinking/minor in possession of alcohol
- Drug distribution/possession
Juveniles Have Rights Also
Even if your child has been charged with a juvenile crime, your child has the right to a competent & skilled defense. You as a parent have the right to hire your own private defense attorney instead of an attorney appointed by the court system. The SRIS Law Group Massachusetts criminal lawyers defend clients throughout Massachusetts. If you need to speak with a juvenile defense lawyer in Massachusetts, you can call us at 888-437-7747. We have offices in Boston & Cambridge to better assist you. We offer a free consultation.
