How counsel might be ineffective for failing to apprise potential firearms disability

[MDJschool]

I've always surmised the possibility that we are in an era where failing to inform defendants about the full consequences, including clear legal collateral consequences, provides the foundation for an ineffective counsel claim. I vaguely recall trying to find cases supporting this proposition, but I don't recall being too successful.

I found the following recent case:
Com. v. Abraham, 996 A. 2d 1090 (Pa.Super. 2010)

"Joseph Abraham appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In his petition, Abraham claimed his trial counsel was ineffective for failing to inform him a guilty plea to indecent assault would result in the loss of his vested pension rights, see 43 P.S. § 1311 et seq.,[1] thereby rendering his guilty plea unknowing and involuntary. The PCRA Court dismissed his petition without a hearing pursuant to Pa. R.Crim.P. 907. After a thorough review of the official record, submissions by the parties, and relevant law, we reverse and remand for a hearing."

On one hand, "The United States Supreme Court abrogated Frometa in Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Frometa, our Supreme Court held deportation was a collateral consequence of a guilty plea and therefore did not need to be explained to a defendant contemplating a guilty plea. Id. at 556, 555 A.2d at 93. . . . Deportation is a virtual certainty for an alien convicted of drug charges, such as Padilla. Padilla at ----, 130 S.Ct. at 1478. Given the intimate connection between criminal activity and deportation, it cannot be removed from the ambit of Sixth Amendment right to counsel. Id. at ----, 130 S.Ct. at 1480. The Supreme Court determined when the consequences in question are succinct, clear, and distinct, counsel is obliged to inform the client. . . . Although Padilla is newly minted, the standards and approach used in that decision have been used in Pennsylvania for other matters involving due process."

On the other hand, "In Padilla, the United States Supreme Court stated it had never applied the distinction between direct and collateral consequences to define the scope of constitutionally professional assistance required under Strickland. Padilla at ----, 130 S.Ct. at 1481. The Supreme Court also stated given that deportation is intimately connected with the criminal process, the collateral versus direct consequence analysis was ill-suited to a Strickland claim. Id. Under Padilla, it is unclear if the direct/collateral analysis is still viable. . . . Specifically, a consequence that is punitive in nature implicates ex post facto applications and punitive consequence is also a determining factor under Padilla. . . . Looking at the guideposts, it is apparent the loss of pension is punitive in nature. Lehman. Viewed in the light of Padilla, the loss of the pension is automatic and inevitable, the stakes are high and the consequences are succinct, clear, and distinct. Because of the automatic nature of forfeiture, the punitive nature of the consequence, and the fact that only criminal behavior triggers forfeiture, the application of PEPFA is, like deportation, intimately connected to the criminal process. Therefore, counsel was obliged to warn his client of the loss of pension as a consequence to pleading guilty. . . . Even if we were to apply the direct/collateral analysis the result would be the same. Commonwealth v. Wall, 867 A.2d 578, 582 (Pa.Super.2005) defined a collateral consequence of “one that is not related to length or nature of the sentence imposed on the basis of the plea,” while a direct consequence is “one that has a definite, immediate and largely automatic effect of the range of the defendant's punishment.” Our analysis under Padilla demonstrates the loss of pension is related to the nature of the sentence and the application of the measure has a definite, immediate and automatic effect on the range of punishment. As a result, the loss of pension rights is a direct consequence of the guilty plea and counsel was obliged to warn his client of the consequences of the plea."

So, I'm sort of worried about the firearms disability being a collateral consequence, that is, one that isn't required to be advised upon, because its application is not based upon the taking of a plea or only upon a specific range of lawful sentencing.

However,

"PER CURIAM.
AND NOW, this 30th day of November 2010, the Petition for Allowance of Appeal is GRANTED, LIMITED TO the issues set forth below. Allocatur is DENIED as to all remaining issues. The issues, rephrased for clarity, are:
(1) Whether, in light of Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) is appropriate?
(2) If so, whether the forfeiture of a pension that stems from a public school teacher's negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?"

And so I will follow this case.

[Deleted]

Thats an interesting decision. Only goes to show the importance of a GOOD attorney.