Articles Posted in Plea Negotiations

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supreme court.jpgIn San Antonio and other courts throughout Texas, many Mexican citizens take plea deals every day. Before 2010 the only requirement for non-U.S. citizens taking pleas was that the defendants must be warned that they may face deportation, removal from the country or denial of U.S. citizenship. However, on March 31, 2010, the United States Supreme Court filed its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) holding that “counsel must inform her client whether his plea carries a risk of deportation.” Padilla at 1486. “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.” Padilla at 1483. This means that a defense attorney must adequately advise a non-U.S. citizen of how the plea may affect his or her status in this country.

The U.S. Supreme Court went on to explain: “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id.

But a big debate throughout Texas is whether Padilla announced a new rule of law that bars it from being applied retroactively. Or does Padilla just clarify a longstanding rule of law, allowing it to apply to cases that were final prior to the Padilla opinion?

Texas Courts have been applying Padilla retroactively to cases that were final before the opinion was rendered. In Ex parte Tanklevskaya, 2011 WL 2132722 (Tex. App.–Hous. [1Dist.] 2011), the Court of Appeals denied the State’s claim that “Padilla announced a ‘new constitutional rule of criminal procedure’ that should not be applied retroactively to cases on collateral review.” Id. at *4; citing Teague v. Lane, 489 U.S. 288, 310 (1989). That Court, agreeing with other Courts in Texas and around the country, held that Padilla does not apply new rule of criminal procedure but is an extension of the rule in Strickland v. Washington and therefore applies retroactively. Id. at *7.
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handcuffs.jpgOn September 12, 2011, Julie Navejar, a San Antonio, Texas teenager who left her daughter at a west side fire station in 2009 pleaded no contest in the 289th District Court. Pursuant to her plea deal that was arranged by her criminal defense attorney, the State will not ask the judge to sentence her for more than 12 years in prison. She is applying for deferred adjudication, which if the judge grants her application for deferred and she completes the probationary period, she will not have a final conviction on her record. The prosecutor says she will be opposing her request for deferred adjudication. Navejar will officially receive her sentence in November of this year. Although she was only 16 years old when the incident occurred, the juvenile court judge certified to allow her to stand trial as an adult.

The teen’s boyfriend, Ramiro de la Rosa, is still awaiting trial. It is alleged that the boyfriend physically abused the child before they left the lifeless infant at the fire station. De la Rosa told police that days before the baby died he would slap her and choke her when she would not stop crying. The teen girl admitted during an interview that she was addicted to heroin and did not care for the child properly. Navejar’s defense attorney explained to the court during the hearing that her boyfriend would inject her with heroin and force her to prostitute herself. He would also physically abuse her as well.
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wanted dead or alive.jpgIn a modern twist of the Old West’s wanted posters, twelve digital billboards around San Antonio, Texas are now showing the names and pictures of individuals who have warrants for felony driving intoxicated related offenses with the word “WANTED” directly above the person’s name. In addition to showing the face and name of the suspect, the billboard also lists the specific felony offense they are charged with. The billboards only show individuals who already have an active warrant for their arrest.

According to the San Antonio Police Department, there have been approximately 3,500 driving while intoxicated related offenses so far in 2011. Mothers Against Drunk Driving supports the use of the billboards which are being donated by Clear Channel Outdoor.
The billboards are not the only recent efforts law enforcement officials have implemented this year. The San Antonio Police Department working in conjunction with the Bexar County District Attorney’s Office are now making all weekends and most long holidays, such as the week of Fiesta, “no refusal” weekends. This means if an individual arrested on suspicion of driving while intoxicated refuses a breath test, the officer will get a warrant to draw the individual’s blood. Defense attorneys practicing in Bexar County have also noticed the plea offers for all DWI’s have increased.
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gavel.jpgIn San Antonio, Bexar County and the surrounding counties, I have repeatedly had prosecutors tell me during plea negotiations that an offer they made my client was higher than normal due to my client’s prior arrests. Most recently, this week in Hays County, Texas I was told by the prosecutor that the lengthy offer on my client’s misdemeanor possession of marijuana was due to his numerous arrests that only resulted in one conviction for misdemeanor driving while intoxicated. As I explained the substance of these cases, the prosecutor told me he did not care about the facts or that they were all dismissed. He only cared that he had been arrested so frequently. The only way the prosecutor knows about the arrest is by looking at printout in the file and not reviewing the police reports. Although the prosecutors are not the ones who ultimately impose the sentence, their recommendations that consequences that may ensue from rejecting a plea offer (i.e. the prosecutor making a higher recommendation if the defendant goes open to the judge for sentencing).

The Fifth Circuit Court of Appeals recently held in United States v. Johnson that it was error for a District Court Judge to grant the U.S. Attorneys request for an upward departure based in part on the defendant’s prior arrests that did not result in convictions, despite their similarity to the instance offense. The District Court judge even advised that he was not considering the arrests per se, but was considering the underlying course of conduct due to the similarity of the offenses. The Court of Appeals cautioned that the only evidence before the court of the conduct of these arrests were the bare arrest reports, which are unreliable. The Court ruled that taking these arrests into consideration to upward depart from the guideline sentence violated due process.

Thus, in my opinion and in light of the 5th Circuit’s recent opinion, the prosecutors are unlawfully considering unadjudicated offenses when negotiating plea agreements. The previous arrests were dismissed for a reason and therefore should not used against a defendant in future prosecutions.
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