For the Defense - Volume 3, Issue 1 - 2018 - 33
Flores-Ortega states that counsel has a
duty to consult with his client about an appeal
when he has reason to believe that a rational
defendant would want to appeal (or when a
particular defendant has reasonably demonstrated
to counsel that he is interested in appealing).
According to the Superior Court, it follows, then,
that when a particular issue has been deliberately
preserved for appeal - such as a suppression
ruling - a rational defendant would likely want to
appeal that issue. Moreover, the Green Court also
noted that, when the issue on appeal involves a
suppression ruling, success on appeal (exclusion of
contraband) would effectively end the prosecution
- thus making it even more likely that a rational
defendant would want to appeal. On these facts,
defendant's counsel had a duty to adequately
consult with defendant about whether to file
an appeal, and counsel's failure to discharge
that duty constituted deficient performance.
Accordingly, the Superior Court reinstated
defendant's appeal rights nunc pro tunc.
Commonwealth v. King, 167 A.3d 140 (Pa.
Super. 2017) (Philadelphia County). Any waiver
of the attorney-client privilege in PCRA cases is
limited to those issues relevant to a petitioner's
ineffectiveness claim; further, communications
between trial counsel and the Commonwealth
ahead of an evidentiary hearing risk disclosure
outside the scope of this waiver, and, thus, are
prohibited.
Following a conviction for first-degree murder,
King's PCRA counsel made several attempts to
contact trial counsel to discuss King's PCRA claims.
Trial counsel eventually stated, "You're nuts if
you think I'm gonna help you." PCRA counsel
ultimately filed a petition asserting that trial
counsel was ineffective. Trial counsel subsequently
wrote a letter to PCRA counsel stating: "Be
advised that I will not be cooperating with you in
preparing the above matter. If there are further
questions, contact the Philadelphia District
Attorney's office."
After several more attempts to communicate
with trial counsel failed, PCRA counsel filed a
motion to preclude the Commonwealth from
interviewing trial counsel ex parte in order to
prevent trial counsel from disclosing privileged
or confidential information obtained during his
representation of King. The trial court granted
King's motion, and the Commonwealth appealed.
The Superior Court affirmed. As reasons,
it cited the attorney-client and work product
privileges as well as counsel's continuing duty
of loyalty to his former client under the Rules of
Professional Conduct. The King Court also held
that a PCRA petitioner only waives a privilege to
the extent that the privilege relates to a specific
claim of ineffectiveness. The King court then
went on to express the concern that any kind of
private communications between trial counsel
and the government "could easily become a
freewheeling inquiry into privileged matters that
fall outside the scope of the ineffectiveness claims
raised" by former clients, and, as such, PCRA
courts must vigilantly guard against trial counsel's
disclosure of privileged client information,
which may include issuance of an anticipatory
"order [that] the Commonwealth ... refrain from
interviewing trial counsel in advance of [a] PCRA
evidentiary hearing."
Supreme Court of the United States
Lee v. United States, 137 S.Ct. 1958 (2017).
Counsel was ineffective for failing to correctly
advise defendant of immigration consequences
of guilty plea; further, prejudice was established
because contemporaneous evidence supported
defendant's claim that avoiding deportation was
dispositive of his decision to plead guilty, and, but
for counsel's erroneous advice, defendant would
have gone to trial.
Lee was originally from South Korea and
had been living the United States as a lawful
permanent resident for 35 years. Lee was
charged with possession of ecstasy with intent
to distribute. During plea negotiations, Lee
repeatedly asked his attorney whether he would
be deported if he pled guilty, and the attorney
assured Lee that he would not be deported.
Based on this representation, Lee pled guilty
and was sentenced to one year and one day
in prison. Unfortunately, Lee pled guilty to an
offense that qualified as an 'aggravated felony'
for immigration purposes, which subjected him to
Vol. 3, Issue 1
l
For The Defense
33
Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018
Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
For the Defense - Volume 3, Issue 1 - 2018 - 36
For the Defense - Volume 3, Issue 1 - 2018 - 37
For the Defense - Volume 3, Issue 1 - 2018 - 38
For the Defense - Volume 3, Issue 1 - 2018 - 39
For the Defense - Volume 3, Issue 1 - 2018 - 40
For the Defense - Volume 3, Issue 1 - 2018 - 41
For the Defense - Volume 3, Issue 1 - 2018 - 42
For the Defense - Volume 3, Issue 1 - 2018 - 43
For the Defense - Volume 3, Issue 1 - 2018 - 44
For the Defense - Volume 3, Issue 1 - 2018 - 45
For the Defense - Volume 3, Issue 1 - 2018 - 46
For the Defense - Volume 3, Issue 1 - 2018 - 47
For the Defense - Volume 3, Issue 1 - 2018 - 48
For the Defense - Volume 3, Issue 1 - 2018 - 49
For the Defense - Volume 3, Issue 1 - 2018 - 50
For the Defense - Volume 3, Issue 1 - 2018 - 51
For the Defense - Volume 3, Issue 1 - 2018 - 52
For the Defense - Volume 3, Issue 1 - 2018 - 53
For the Defense - Volume 3, Issue 1 - 2018 - 54
For the Defense - Volume 3, Issue 1 - 2018 - 55
For the Defense - Volume 3, Issue 1 - 2018 - 56
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue3_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue2_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue1_2024
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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