Oregon, the Sixth Amendment, and “Collateral Consequences”

Last month, the Oregon Supreme Court issues opinions in two companion cases, Gutale v. Oregon and Perez-Rodriguez v. Oregon, that address the “escape” clause to Oregon’s two-year statute of limitations on filing a post-conviction relief motion.  These two cases create a very narrow opening for certain noncitizen defendants to seek PCR after the statute of limitations has expired where the noncitizen defendant was not warned in any way of the immigration consequences of a criminal conviction.  (I picture the escape clause as a narrow window, and see the non-citizen in my mind’s eye, squeezing through with difficulty and leaping out into the bushes).

It is worth noting that a person may have received constitutionally ineffective counsel under Padilla v. Kentucky, 559 U.S. 356 (2010) because their lawyer failed to properly advise them of the immigration consequence of their plea, but STILL be barred from using the escape clause if, like Perez-Rodriguez, they received some sort of partially accurate information. Perez-Rodriguez was (apparently) told by his attorney that his conviction “could” have immigration consequences, and his plea agreement included the standard language that if he was not a U.S. citizen, his plea “could” result in deportation/removal, exclusion, or denial of naturalization. In fact, it was an aggravated felony triggering mandatory removal proceedings.

The two cases say a lot about how the Oregon Supreme Court views ineffective assistance of counsel claims. Recall that last year, in State v. Hamann, 363 Or. 264 (2018), the same court held that a Georgia conviction for DUII could be used as a predicate for the permanent revocation of defendant’s driving privileges in Oregon– even though the defendant did not have any attorney at all, let alone an effective one, when he pleaded guilty in Georgia, and was not advised of his right to an attorney, either.

Leave a Reply