CRIMINAL LAW: Retroactivity of Supreme Court Decision in Padilla v. Kentucky and Possible Application for Health Professionals

Friday, January 17, 2014
Our guest author of this is article is Mark Rieber, a legal research attorney with National Legal Research Group in Charlottesville, Virginia.

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea.  In Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla announced a "new" rule under Teague v. Lane, 489 U.S. 288 (1989), and thus does not apply retroactively to collateral challenges under federal law.  Despite Chaidez, the Supreme Judicial Court of Massachusetts held that under Massachusetts law, the Sixth Amendment right enunciated in Padilla was not a "new" rule and, consequently, that defendants may attack their convictions collaterally on Padilla grounds.  Commonwealth v. Sylvain, 466 Mass. 422, ___ N.E.2d ___ (2013).

Sylvain decided that under Massachusetts law, the court may give broader retroactive effect to Padilla as a matter of state law than Padilla would otherwise enjoy under federal law. The Massachusetts court explained that although in an earlier decision it had adopted the Teague retroactivity framework, including Teague's original construction of what constitutes a "new" rule, the Supreme Court's post-Teague expansion of what qualifies as a "new" rule has become so broad that decisions defining a constitutional safeguard rarely merit application of collateral review.  Sylvain concluded that it would continue to adhere to the Supreme Court's original construction that a case announces a "new" rule only when the result is "not dictated by precedent."  Under this narrower interpretation, Sylvain determined that Padilla did not announce a "new" rule, because "it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation."  Id. at 435, ___ N.E.2d at ___.  Accordingly, Sylvain held that the defendant in the case before it, whose conviction was final at the time Padilla was decided, was entitled to seek relief under the Sixth Amendment right recognized in Padilla.

Additional Comment from George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law, President and Managing Partner, The Health Law Firm.

At The Health Law Firm, we are constantly contacted by health professionals after they have been advised by their criminal defense attorney to plead guilty or nolo contendere to some criminal offense. The problem is, no one told them that the plea or the verdict (even if it is adjudication deferred) may result in the loss of their professional license and other consequences.

In many cases, the conviction (which includes adjudication deferred) of a felony based on drug possession/abuse, theft or fraud, may, in addition to the loss of the health professional’s license, bar him or her from receiving another one for up to 15 years from the last day of the sentence or probation.

This loss of a profession, loss of employment ability, and loss of income is an extremely serious consequence that criminal defense attorneys should be advising their clients about.

In addition, the health professional who is the defendant in such an action will probably be reported to the National Practitioner Data Bank (NPDB), where the report will remain for 50 years.

The criminal conviction or the license action will also result in a separate action by the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) to exclude the individual from participation in the Medicare Program. The individual is placed on the List of Excluded Individuals and Entities (LEIE) that all health care employers and contractors are required to check. This effectively eliminates more than 90% of the job opportunities in the health care industry. An additional consequence to this is that the person is also placed on the General Services Administration’s (GSA) “Debarred List” and is excluded from any participation at any level with anyone that accepts government funding or is a government contractor.

Add on top of this the fact that many licensed health professionals have student loans in the hundreds of thousands of dollars range. Without a profession, having enough income to repay them will be difficult.

These extremely serious collateral consequences of criminal pleas and conviction are rarely explained to clients by their criminal defense attorneys. If they were, often the client would make a different decision.

As explained by Mr. Rieber in his excellent summary above, perhaps such a guilty plea by a health professional would be subject to collateral attack under Padilla v. Kentucky, 559 U.S. 356 (2010) and Chaidez v. United States, 133 S. Ct. 1103 (2013).

I am waiting to see the case bringing this legal issue up.

About the Author: The author of this is article is Mark Rieber, a legal research attorney with National Legal Research Group in Charlottesville, Virginia. This article appeared on The Lawletter Blog.

This article was originally published in The Lawletter Vol 38 No 8.

About Mr. Indest: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Tag Words: Criminal law, supreme court, Padilla v. Kentucky, sixth amendment, counsel, criminal defendant, attorney, lawyer, guilty plea, Chaidez v. United States, Teague v. Lane, federal law, Commonwealth v. Sylvain, state law, constitutional safeguard, collateral review, sixth amendment right. Lawletter, National Legal Research Group, licensed health professional, criminal defense attorney, plead guilty, nolo contendere, criminal offense, adjudication deferred, lose of healthcare license, lose of professional license, National Practitioner Data Bank (NPDB), List of Excluded Individuals and Entities (LEIE), General Services Administration (GSA), Debarred List, licensed health professionals

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