Docket No. 2015-01
IN THE
Supreme Court of the United States
THOMAS HAVERFORD,
Petitioner,
v.
STATE OF EAGLETON,
Respondents.
On Writ of Certiorari to the Supreme Court for the State of
Eagleton
BRIEF FOR THE RESPONDENTS
Counsel for Respondents
TEAM 10
QUESTIONS PRESENTED
1.
Was the district court correct in admitting evidence of Petitioner’s methamphetamine as
well as his equipment and supplies commonly used to manufacture methamphetamine?
a.
Did Deputy Sanderson possess reasonable suspicion when extending his otherwise
lawful stop of Petitioner?
b.
Does the attenuation aspect of the taint doctrine apply in this case?
c.
Was the district court correct in finding that the Petitioner was never “constructively
seized” during his encounter with Deputy Sanderson?
2.
Was the district court correct in refusing Petitioner’s withdrawal of his guilty plea?
a.
Was the warning of Attorney Brendanawicz that there was a “strong risk” of
constitutionally sufficient?
b.
Was Petitioner ever prejudiced by the performance of Attorney Brendanawicz?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED………………………………………………………………………i
TABLE OF CONTENTS…………………………………………………………………………ii
TABLE OF AUTHORITIES……………………………………………………………………..iii
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED…………………………v
STATEMENT OF THE CASE……………………………………………………………………1
SUMMARY OF THE ARGUMENT……………………………………………………………..5
ARGUMENT……………………………………………………………………………………...6
I.
THE DISTRICT COURT PROPERLY DENIED THE PETITIONER’S MOTION TO
SUPPRESS EVIDENCE………………………………………………………………………….6
a.
DEPUTY SANDERSON POSSESSED REASONABLE SUSPICION………….................7
b.
ATTENUATION DOES NOT BAR ADMISSION OF THE EVIDENCE………………..11
c.
PETITIONER WAS NOT CONSTRUCTIVELY SEIZED………………………………..13
II.
THE DISTRICT COURT PROPERLY REFUSED PETITIONER TO WITHDRAW
HIS GUILTY PLEA……………………………………………………………………………..17
a.
ATTORNEY BRENDANAWICZ’S ASSERTION OF A “STRONG RISK” IS
CONSTITUTIONALLY SUFFICIENT…………………………………………………………17
b.
PETITIONER HAS NOT ALLEGED PREJUDICE……………………………………….22
CONCLUSION…………………………………………………………………………………..27
ii
TABLE OF AUTHORITIES
Brown v. Illinois, 422 U.S. 590 (1975)………………………………………...………….6, 12, 13
Commonwealth v. Escobar, 70 A.3d 838 (Pa. Super. Ct. 2013)…………………………18, 19, 21
Commonwealth v. McDermitt, 66 A.3d 810 (Pa. Super. Ct. 2013)………………….18, 19, 20, 21
Flores v. State of Florida, 57 So. 3d 218 (Fla. Dist. Ct. App. 2010)………………………...23, 24
Florida v. Bostick, 501 U.S. 429 (1991)…………………………………………………………14
Hill v. Lockhart, 474 U.S. 52 (1985)…………………………………………………………….17
I.N.S. v. Delgado, 466 U.S. 210 (1984)…………………………………………………14, 15, 16
Lafler v. Cooper, 132 S. Ct. 1376 (2012)………………………………………………………..17
Nardone v. United States, 308 U.S. 338 (1939)………………………………………………….12
Navarette v. California 134 S. Ct. 1683 (2014)………………………………………………...6, 7
Ornelas v. United States, 517 U.S. 690 (1996)……………………………………………………6
Padilla v. Kentucky, 559 U.S. 356 (2010)……………………………………….18, 19, 20, 21, 22
Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)…………………………...18
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)……………………………………13, 14, 15, 16
State of North Carolina v. Nkiam, 778 S.E.2d 863 (N.C. Ct. App. 2015)……………………….22
State of Ohio v. Kostyuchenko, 8 N.E.8d 353 (Ohio Ct. App. 2014)…………………………….22
State of Ohio v. Labadidi, 969 N.E.2d 335 (Ohio Ct. App. 2012)…………………………...23, 24
State of Wisconsin v. Shata, 364 Wis. 2d 63 (Wis. 2015)………………………………..18, 19, 21
Strickland v. Washington, 466 U.S. 668 (2010)…………………………………17, 22, 23, 24, 26
Terry v. Ohio, 392 U.S. 1 (1968)………………………………………………….6, 7, 8, 9, 10, 13
United States v. Cortez, 449 U.S. 411 (1981)…………………………………………..7, 8, 10, 11
United States v. Kayode, 777 F.3d 719 (5th Cir. 2014)………………………………………23, 24
iii
United States v. Martinez-Fuerte, 428 U.S. 543 (1976)…………………………………………..7
United States v. Mendenhall, 446 U.S. 544 (1980)……………………………………...13, 14, 16
United States v. Soklow, 490 U.S. 1 (1989)…………………………………………….8, 9, 10, 11
Wong Sun v. United States, 371 U.S. 471 (1963)…………………………………………………6
iv
STATUTES
Eagleton Statute § 147.23…………………………………………………………………………7
Eagleton Statute § 841…………………………………………………………………………….1
RULES
Eagleton Rule of Crim. Proc. 11…………………………………………………………………..1
Eagleton Rule 38…………………………………………………………………………………..4
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV……………………………………………...v, 5, 6, 7, 8, 10, 13, 14, 16, 27
The Fourth Amendment to the United States Constitution provides in relevant part:
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated…but upon probable cause.”
v
STATEMENT OF THE CASE
Tomas Haverford (“Petitioner”) pled guilty to possession with intent to manufacture
methamphetamine under the Controlled Substances Act in violation of Eagleton Statute, Eg. Stat.
§ 841(a)(1). R. at 25. The arrest took place after Deputy David Sanderson (“Sanderson”)
conducted a traffic stop of Petitioner’s vehicle for a burnt out headlight. R. at 4. Petitioner first
motioned the Pawnee District Court to suppress the evidence obtained from his vehicle. R. at 15.
The District Court denied that motion. Id. Petitioner then pled guilty and was sentenced by Judge
Perd Hapley to ten years in prison. R. at 26. Judge Hapley additionally denied the Petitioner’s
request for his record to be expunged. Id.
Petitioner then motioned for post-conviction relief and asked the District Court to allow
him to withdraw his guilty plea alleging that his counsel was ineffective under Eagleton R. Crim.
Pro. 11. R. at 28. The District Court denied his request finding that Petitioner could not show
prejudice on his ineffective assistance of counsel claim. R. at 31. The Supreme Court for the
State of Eagleton reviewed the trial court’s decision denying Petitioner’s motion to suppress and
whether or not Petitioner was entitled to withdraw his guilty plea. R. at 38-9. The Supreme Court
concluded that the traffic stop was not unlawful, and that Petitioner was not entitled to withdraw
his guilty plea. R. at 39. Petitioner sought certiorari in this Court to appeal the Supreme Court
of Eagleton’s decision. R. at 60.
Sanderson stopped Petitioner on May 20, 2013 around 6:10 p.m. he noticed the vehicle
had a burnt out headlight. R. at 3-4. When Sanderson approached the vehicle, he noticed that
Petitioner appeared to be nervous, his pupils were restricted, and his upper body was shaking. R.
at 4. Sanderson was able to identify that his pupils were restricted based on his experience and
training by pupilometer, which allowed him to approximate Petitioner’s pupil size to three
1
millimeters, which is one to two millimeters below the typical adult male pupil size. R. at 8.
Sanderson believed that the restricted or smaller pupils can be an indicator of drug use. R. at 4.
After Sanderson issued the citation for the burnt out headlight, he returned to the vehicle
and asked Petitioner if he would be willing to take field sobriety tests. R. at 5. Sanderson told
Petitioner that the purpose for these tests was his apparent nervousness, shaking, and restricted
pupils. Id. Petitioner agreed to the field sobriety tests. Id. Sanderson did not believe Petitioner
was impaired and told Petitioner he was free to go, at which point Sanderson returned to his
squad car. Id. As Sanderson returned to his car, he wondered whether or not Petitioner might
consent to a vehicle search. Id.
Approximately twelve seconds later Sanderson approached the driver’s side of
Petitioner’s vehicle and asked if he could speak with him. Id. Petitioner exited his vehicle,
having reentered it moments before, and indicated that he would speak with Sanderson. Id.
Sanderson asked Petitioner if he had “anything that I need to know about” to which Petitioner
responded “No, sir.” Sanderson then requested permission to search the vehicle, which
Petitioner allowed. Id. Petitioner even confirmed a second time that he consented to the search of
his vehicle. R. at 14.
During that search, Sanderson found a glass bottle that continued a liquid substance, a
mason jar with clear liquid substance it in with a rubber glove on top of it, coffee filters and fuel
for heating a canister. R. at 5. Sanderson also found medication bottles with Petitioner’s name
on them, including one bottle which had a clear plastic bag with a sandy-type substance inside.
R. at 5-6. In addition, Sanderson also located muriatic acid, syringes, and some glass drinking
glasses. R. at 6. The sandy substance tested positive for methamphetamine (collectively, “the
evidence”). Id. Petitioner sought a motion to suppress the evidence claiming that the search was
2
unconstitutional. R. at 15. The District Court found that Petitioner was unlawfully stopped by
Sanderson, but that the evidence should not be excluded under the taint doctrine. Petitioner’s
Motion to Suppress was denied. R. at 21.
Petitioner then pled guilty in the District Court on the charges. R. at 23. At the plea
hearing, Mr. Brendawicz, counsel for Petitioner, stated that his client “did not want to be
deported” and that “he was trying to figure it out” because it was “difficult.” R. at 24. The court
took at thirty minute recess for counsel to speak with his client. R. at 25. After that meeting, Mr.
Brendawicz stated again that his client was concerned with deportation, but that he informed his
client that there was a “strong possibility” that he would be deported. Id. After, the District Court
judge told Petitioner “there is a risk, if found guilty of this crime, that you may be deported or
denied admission.” Id. Petitioner still pled guilty. Id. The District Court judge then asked again,
and Petitioner confirmed that he was worried that he might be deported, but that he understood.
Id. Petitioner asked to be sentenced to five years’ imprisonment and at the conclusion of
probation that his record would be expunged so that he did not have to worry about deportation.
R. at 26. The District Court denied this and followed the State’s recommendation of ten years
imprisonment and further denied expunging of Petitioner’s record. Id.
Petitioner then had a post-conviction relief hearing as a result of his motion to withdraw
his guilty plea. R. at 28. Petitioner claimed that his counsel performed deficiently alleging that
counsel “did not correctly inform [Petitioner] of the deportation risk of his guilty plea.” R. at 28.
At the post-conviction relief hearing, Petitioner’s plea counsel conceded that he did not use the
word mandatory in assessing the chances of deportation, but instead warned of a “strong risk.”
R. at 28. Further, counsel testified that he contacted several federal prosecutors about whether or
not pleading would subject Petitioner to deportation. The prosecutors informed counsel that
3
pleading “could” or “may” end in deportation. R. at 28-9. Finally, Petitioner’s counsel said that
despite knowing that pleading guilty could subject him to deportation, Petitioner chose to go
forward because “we could not really prevail if we went to trial.” R. at 29. At the plea hearing
Petitioner said that he did not want to be deported, and if he had known his deportation was
“automatic,” he would have “told his attorney he wanted to go to trial.” R. at 30. Further, he said
that he has not been to Venezuela since he came to the United States, all his family in Venezuela
is gone and that if he went back he would have “no family, no job, nothing.” R. at 30.
Ultimately, the District Court denied Petitioner’s motion to withdraw his guilty plea. The District
Court believed counsel should have further advised his client, but held that Petitioner had not
adequately shown prejudice. R. at 31.
After he was denied relief, Petitioner sought relief from the Supreme Court for the State
of Eagleton claiming that the trial court incorrectly denied his motion to suppress, and
additionally that the trial court incorrectly denied his motion to withdraw his guilty plea. R. at
38-9. That court concluded that the extension of the traffic stop was not unlawful because
Sanderson had reasonable suspicion to pursue a field sobriety test. R. at 38-9. As a result, the
Supreme Court affirmed the trial court’s denial of Petitioner’s motion to suppress. R. at 50.
Secondly, the court concluded that Petitioner’s counsel did not perform deficiently, and as a
result, did not even address the issue of prejudice. R. at 39. As to that claim, the Supreme Court
reversed the trial court’s conclusion that counsel was deficient, but affirmed the court’s dismissal
of Petitioner’s motion. R. at 50. This timely appeal followed under Rule 38.
4
SUMMARY OF THE ARGUMENT
First, the trial court properly denied Petitioner’s Motion to Suppress Evidence. Deputy
Sanderson established reasonable suspicion by pointing to objective indicia that Petitioner had
been under the influence of drugs. As a result, Deputy Sanderson met the requirements to extend
the stop under the Fourth Amendment of the United States Constitution and this Court. However,
even if this Court were to find the extension of the stop to be unlawful, Petitioner has failed to
prove that the evidence obtained should be excluded under the attenuation doctrine. Finally,
Petitioner gave his consent to Deputy Sanderson to search the vehicle. There was no
“constructive seizure” at any point after the completion of the stop, as simply dialogue with the
police does not create a constructive seizure. Because Deputy Sanderson did not threaten or scare
Petitioner into consenting to the search of the vehicle, and that consent was given freely, the trial
court and Supreme Court of Eagleton’s ruling to deny the Motion to Suppress should be
affirmed.
Second, the District Court properly denied Petitioner’s motion to withdraw his guilty
plea. Petitioner’s counsel was not ineffective when he informed Petitioner that there would be a
“strong risk” of deportation before Petitioner pled guilty. Notifying Petitioner of such a risk
meets the requirements of this Court and is supported by the decisions of lower courts. Further,
even if counsel’s assistance was ineffective, Petitioner has failed to show that he was prejudiced
by that ineffective assistance by failing to show that even with a different warning, the
proceeding would have been different. Regardless, the trial court judge’s notification to
Petitioner of this risk of deportation before Petitioner pled guilty would eliminate any claim for
prejudice.
5
ARGUMENT
I.
THE DISTRICT COURT PROPERLY DENIED PETITIONER’S MOTION TO
SUPPRESS EVIDENCE
Petitioner contends that evidence was improperly admitted because Deputy Sanderson
unlawfully extended a traffic stop without reasonable suspicion. Petitioner also argues that
evidence obtained after the stop is tainted and inadmissible under the “attenuation” aspect of the
“poisonous tree” doctrine. Wong Sun v. United States, 371 U.S. 471, 488 (1963). Finally,
Petitioner asserts that he was “constructively seized” by Deputy Sanderson in violation of his
Fourth Amendment rights. While the District Court correctly denied to Petitioner’s motion to
suppress, we challenge that court’s failure to find “reasonable suspicion”
This Court reviews determinations of “reasonable suspicion” under a de novo standard.
Ornelas v. United States, 517 U.S. 690, 699 (1996). Matters of purely historical fact are
reviewed under a “clearly erroneous” standard. Id. To possess reasonable suspicion, Deputy
Sanderson must have had a “particularized and objective basis for suspecting the stopped person
of criminal activity.” Navarette v. California 134 S. Ct. 1683, 1687 (2014).
To establish taint in this case Petitioner must establish that either (1) the temporal
proximity of the official misconduct and seizure of evidence; (2) the presence (or lack) of
intervening circumstances, or; (3) the purpose and flagrancy of the official misconduct warrants
excluding the evidence. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Deputy Sanderson does
not concede that the evidence of methamphetamine and methamphetamine apparatus (“The
Evidence”) was unlawfully obtained; we address these questions only ex arguendo.
Finally, to establish a “constructive seizure” Petitioner must show that Deputy Sanderson
“by means of physical force or show of authority, has in some way restrained [his] liberty.”
Terry v. Ohio, 392 U.S. 1, 39 (1968).
6
A. DEPUTY SANDERSON SATISFIED THE FOURTH AMENDMENDMENT AND
ESTABLISHED REASONABLE SUSPICION WHEN STOPPING PETITIONER
Deputy Sanderson established reasonable suspicion by pointing to objective indicia
suggesting Petitioner had been under the influence of drugs. His actions were thus in line with
the doctrine announced by this Court in Terry v. Ohio and not violative of Petitioner’s Fourth
Amendment rights.
The State of Eagleton has made it a mandatory condition of driving that all cars be
equipped with “at least two headlamps and two tail lamps, all in good operating condition with at
least one on each side of the front and rear of the motor vehicle.” Eagleton Statute Ann. §
147.23(b). Deputy Sanderson’s stop of petitioner pursuant to this statute implicates Fourth
Amendment protection. 422 U.S. at 1877.
The Fourth Amendment to the United States Constitution provides in relevant part: “The
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const. Amend IV. In constructing the core
meaning of the Fourth Amendment this Court has explained: “The Fourth Amendment imposes
limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by
enforcement officials with the privacy and personal security of individuals.” United States v.
Martinez-Fuerte, 428 U.S. 543, 554 (1976) (emphasis added).
To justify an investigatory stop as non-arbitrary, the Court has required “reasonable
suspicion.” The Court has defined this standard as: “specific and articulable facts
which….reasonably warrant that intrusion.” Terry, 422 U.S. at 1880; Navarette 134 S. Ct. at 168.
The assessment must be based upon all the circumstances. United States v. Cortez, 449 U.S. 411,
418 (1981). Finally, the Court has noted that reasonable suspicion is “considerably less than
7
proof of wrongdoing by a preponderance of the evidence.” United States v. Soklow, 490 U.S. 1, 7
(1989).
Law enforcement officers are entitled to make brief investigatory stops if they can point
to “specific and articulable facts.” 422 U.S. at 1880. Terry dealt with an officer observing several
men who were potentially “casing”, or preparing to rob a store. The officer observed the men
walking past the store-front repeatedly before stopping to confer with one another. After
watching the men do this approximately a dozen times before they left, the officer followed
them. Id. at 1871. The officer eventually confronted the men, identifying himself as a police
officer and “frisked” the men, finding illegally owned handguns. Id. The officer’s decision to
both stop and search the men was held reasonable. This Court found “the actions of [the men]
were consistent with [the officer’s] hypothesis” that the men were planning to rob the store. Id. at
1883. Because the officer had formed a hypothesis based on objective and observable facts he
was entitled to stop the men. As the Court aptly put it, “we cannot say [the officer’s decision]
was the product of a volatile or inventive imagination, or was undertaken simply as an act of
harassment.” Id. at 1884.
If an officer points to objective and specific facts that are based upon “all the
circumstances” he or she is entitled to make an investigatory stop. Cortez, 449 U.S. at 418. In
Cortez, border patrol officers were tracking the route of a guide who appeared to be leading
illegal aliens into the United States. Id. at 413. The border patrol officers had been tracking many
pairs of footprints, which were led by a distinct pair of footprints through the desert. Eventually
the officers found the end point of the footsteps along a highway road, where they suspected the
illegal aliens were picked up. Id. After staking out the location near the end of the footsteps, the
officers eventually identified a pickup truck with a “camper shell” passing by. They suspected to
8
be covering the illegal aliens, and they initiated a stop. Id. at 417. The Court vindicated the
suspicion of the border patrol officers as reasonable, noting that they “pieced together the
information at their disposal,” and relied on “objective facts” to construct a timeframe of when
and where they thought the illegal aliens would be heading. Id. at 419-20. In sum, the border
patrol officers used “the whole picture” including their “experience as Border Patrol officers” to
successfully establish reasonable suspicion. Id. at 421.
Of critical importance, reasonable suspicion is an even lower standard of proof than
“preponderance of the evidence.” Soklow, 490 U.S. at 7. Soklow was a case about attempted
narcotics trafficking into the continental United States. There, Drug Enforcement Agency
(“DEA”) officers stopped Soklow, the smuggler, after possessing only the following facts:
(1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name
that did not match the name under which his telephone number was listed; (3) his original
destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours,
even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous
during his trip; and (6) he checked none of his luggage.
Id. at 3.
The Court felt that those facts, taken together, amounted to reasonable suspicion. It
reasoned that innocent behavior will “frequently provide the basis” for establishing reasonable
suspicion so long as the officer looks at the totality of the circumstances. Id. at 8-10. Thus under
the low and flexible standard of reasonable suspicion, officers have flexibility to construct a
hypothesis as long as there are objective indicia of some criminal activity. Id. at 1 (quoting Terry
v. Ohio, 392 U.S. 1). Visiting Miami after a long flight for such a brief period of time, coupled
9
with the other five factors, satisfied that standard. This was so even though each might separately
be only innocent behavior.
Deputy Sanderson pointed to specific facts that objectively indicated the possibility of
methamphetamine usage that lawfully permitted him to extend his stop of Petitioner and test for
sobriety. Deputy Sanderson first noticed Petitioner’s restricted pupils, which he estimated to be
three millimeters. Deputy Sanderson was able to guess this by mentally referencing a
“pupilometer” provided to the police in Pawnee County. He also knew through training and by
reference to the “pupilometer” that the average male pupil size is significantly larger than three
millimeters. Deputy Sanderson also had past knowledge that at least some narcotics caused
pupils to become restricted. Finally, Petitioner was shaking and appeared nervous at the time
Deputy Sanderson approached the vehicle. These facts are more than sufficient to satisfy the
Constitutional requirements of the Fourth Amendment. Like the officer in Terry, Deputy
Sanderson witnessed sufficient objective facts to substantiate his theory of criminal activity. In
Terry, the theory was that repeated pacing in front of a particular store was evidence of a
conspiracy to commit theft. Similarly, the pupils, nervousness, shaking, and Deputy Sanderson’s
knowledge of narcotics generated a theory of possible impairment. Deputy Sanderson’s
judgment was wholly reasonable and in the words of this Court, not the product of “a volatile
imagination.” 422 U.S. at 1884.
The same facts just highlighted justify Deputy Sanderson under both the standards of
Soklow and Cortez as well. In Cortez the border patrol officers were justified in making a stop
after looking at “all the circumstances” and identifying a likely route and means of passage taken
by illegal aliens into the United States. In doing this, they drew on their experience as Border
Patrolman. Similarly, Deputy Sanderson assessed his own personal training and knowledge, and
10
applied it to the objective and articulable facts before him. The nervousness, pupils, and
possibility of drug use created reasonable suspicion that Petitioner was engaged in illegal
activity. Like the Border Patrolman in Cortez, he drew on all the circumstances when he decided
to test Petitioner for sobriety and satisfied his Constitutional requirements.
Finally, Deputy Sanderson mirrored the standard demanded of the DEA Officers in
Soklow when they detained the suspected smuggler. The DEA officers knew that he had done
only six things, ranging from purchasing a plane ticket with cash to appearing nervous. Each of
those taken separately would be innocent behavior outside the realm of reasonable suspicion. But
those officers, like Deputy Sanderson, used those facts and their experience to construct the
profile of a criminal who they were entitled to stop. Deputy Sanderson viewed activity that could
be construed as innocent, such as Petitioner’s nervousness. However, like those officers in
Soklow, Deputy Sanderson corroborated the nervousness with some other objective criteria, the
pupils, which he knew to be a possible sign of drug use. His experience and these facts are all
that were required of him to meet the low burden of reasonable suspicion.
Deputy Sanderson’s observations and experience gave him reasonable suspicion that
Petitioner was unlawfully impaired. He was thus warranted in extending the stop. As a result, the
State of Eagleton requests that this Court vacate that portion of the trial court’s opinion and
affirm that of the Supreme Court of Eagleton.
B. ASSUMING, EX ARGUENDO, THAT THE STOP WAS UNLAWFUL, THE
ATTENUATION DOCTRINE DOES NOT BAR ADMISSION OF THE EVIDENCE
Petitioner has not demonstrated that, even if the stop is found unlawful, the evidence
obtained should be excluded under the attenuation doctrine. This Court should affirm the trial
court’s finding on this issue.
11
The attenuation doctrine bars evidence that would not have been as obtainable without
illegal law enforcement activity. Nardone v. United States, 308 U.S. 338, 341 (1939). In Brown
v. Illinois this Court gave delineated attenuation, requiring the weighing of three factors: (1) the
temporal proximity of the official misconduct and seizure of evidence; (2) the presence (or lack)
of intervening circumstances, or; (3) the purpose and flagrancy of the official misconduct
warrant excluding the evidence. 422 U.S. 603-604. None of the factors are dispositive.
Brown dealt with the illegal arrest of a murder suspect. The suspect returned home to his
apartment to find two detectives having broken into and searching his apartment. The detectives
arrested him upon his return home lacking both probable cause and a search warrant. 422 U.S. at
591-92. The detectives then took the suspect to the station where they advised him of his
Miranda rights several times while questioning him. The suspect gave the detectives certain
critical information in a statement, which formed the basis of the Illinois’ case in the murder. Id.
at 595. The Court rejected Illinois’ argument that the freely given response after the suspect’s
Miranda warnings made the evidence sufficiently attenuated from the illegal arrests. It balanced
each of its three factors in turn. First, the Court held that only two hours passed between the
arrest and the suspect’s statement. Second and most importantly, “there was no intervening event
of significance whatsoever.” Id. at 604 (emphasis added). Finally, the Court highlighted that the
detectives knew their arrest was dubious from the beginning. Id. Taken together, the evidence
was sufficiently tainted by illegality to fail the attenuation test.
As the trial court noted, the factors cut decisively the other way in this case. The temporal
element, while brief, does no work in this case because of the second and third factors. After the
twelve seconds passed, Deputy Sanderson explicitly asked for Petitioner’s consent to search the
car. Petitioner gave Deputy Sanderson this consent after expressly being told that he was free to
12
leave. This intervening factor, as the trial court noted, would have led “a reasonable person in
[Petitioner’s] position” to believe that he “was not obligated to stay and answer any additional
questions by the police.” There simply was no other intervening circumstance, aside from the
asking of permission to search, that aggravates this analysis against Deputy Sanderson. Finally,
Deputy Sanderson stands in stark contrast to the detectives in Brown who knew what they were
doing was violative of the Fourth Amendment. Deputy Sanderson had initially thought himself
(and indeed was) engaged in a lawful traffic stop and extension. He ended the stop within a
reasonable time, made the end of the stop clear for Petitioner, and then asked a question to which
Petitioner was under no legal or apparently reasonable obligation to oblige.
Deputy Sanderson conducted himself in a manner consistent with the goals of law
enforcement around the country and certainly in line with this Court’s Fourth Amendment
jurisprudence. The trial court’s finding against any unlawful taint should be affirmed.
C. PETITIONER WAS NOT CONSTRUCTIVELY SEIZED AT ANY TIME AFTER
THE END OF THE STOP BY DEPUTY SANDERSON
Petitioner freely gave his consent to Deputy Sanderson for a search of the vehicle. There
was no “constructive seizure” at any time after the completion of the stop. This Court should
affirm both the trial court and the Supreme Court of Eagleton.
“Only when the officer, by means of physical force or show of authority, has in some
way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry, 392
U.S. at 39. Thus, for our purposes, “[a] search conducted pursuant to a valid consent is
constitutionally permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The validity
of consent is determined under a “totality of the circumstances” standard. United States v.
Mendenhall, 446 U.S. 544, 557 (1980). Related is the common sense idea that “a person has
been “seized” within the meaning of the Fourth Amendment only if, in view of all of the
13
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.” Id. at 554; see also Florida v. Bostick, 501 U.S. 429, 431 (1991). Finally and
crucially, “While most citizens will respond to a police request, the fact that people do so, and do
so without being told they are free not to respond, hardly eliminates the consensual nature of the
response.” I.N.S. v. Delgado, 466 U.S. 210, 216 (1984).
If a law enforcement officer obtains valid consent, they are free to conduct a search.
Schneckloth, 412 U.S. at 222. Schneckloth was a case about attempted fraud with stolen checks.
After spotting a car with a busted headlight and license plate light, an officer initiated a routine
traffic stop. Six men were in the car. The officer asked to see identification from all of the men,
only one of whom was able to produce a driver’s license. Id. at 220. The officer asked to search
the car and the man who had produced the license responded “Sure, go ahead.” Id. The same
man also eventually opened the trunk for the officer. During his search, the officer found stolen
checks in the car, which were subsequently used as evidence. The Court held that the consent
given to the officer was sufficient, reasoning that the facts did not support non-voluntary consent.
The officer was never coercive in tone or unpleasant, and in fact the demeanor of at least one of
the men towards the officer was described as “casual.” Id. at 221. Given the absence of
aggravating factors, the Court reasoned there was no reason to assume a response to an officer’s
question is presumptively coerced. Id. at 247. As a result, there was no Fourth Amendment
violation and the evidence was admissible.
The “totality of the circumstances” is used to establish the nature of any consent given to
law enforcement. Mendenhall, 446 at 557. A reasonable person standard is used to determine
whether or not a person feels free to leave the presence of law enforcement. Id. In Mendenhall, a
suspected drug trafficker was stopped by DEA agents after disembarking a flight. The agents
14
asked if she would accompany them to the DEA’s airport office, which she did albeit following
verbal silence. She subsequently told another DEA officer during questioning that she had given
her consent to be detained. She then removed her clothes when asked for permission to search
her person after being assured she would catch her next flight if no drugs were found. Heroin
was found and subsequently used as evidence against her. Id. at 548-549. The Court reasoned in
a similar fashion to Schneckloth, stating that the suspect had at least two opportunities to refuse
her consent and refused to do so. The Court also declined to hold that the setting of the DEA
Office in any way affected her freely given consent. Finally, the Court noted that the initial
approach of the officers in no way appeared to affect an objective appearance that the suspect
was free to leave. Id. at 555; Thus the actions of the DEA were sustained as constitutionally
permissible.
The above explanations also capture the principle that simply because one is asked a
question by law enforcement does not establish coercion. I.N.S., 446 U.S. at 216. I.N.S. dealt
with immigration officers who entered a factory to question the legal status of some of the
workers. The officers worked their way through the factory while also having men posted near
the door. Id. at 212. The workers were questioned by the agents, though normal business
operations did not seem disrupted. Id. In sustaining the actions of the officers, the Court reasoned
that the workers had no reason to believe they were being detained if they gave truthful answers
to officer questions. Id. at 218. Moreover, that same line of reasoning defeated any argument that
the presence of the officers in the workplace created an inability to provide voluntary answers to
the questions asked. Id. Again, no constructive seizure was found by this Court.
The above examples and principles create a clear validation of Deputy Sanderson’s
actions. First, Petitioner’s consent to Deputy Sanderson cannot be distinguished from that
15
validated in Schneckloth. There, the passenger of the car freely gave the officer consent to search
the vehicle and even aided in the process despite having the opportunity to refuse. Likewise here,
Petitioner was explicitly told that he was free to leave before being asked for consent to search.
Only credulity on the part of Petitioner has brought about any idea of coercion.
Petitioner is also comparable to the trafficking suspect in Mendenhall who had not one,
but two opportunities to refuse consent to detainment and search. Even elevating Deputy
Sanderson’s claim is that he explicitly told Petitioner that he could leave prior to asking the
question. That dimension was not even present in Mendenhall when the DEA’s actions were
upheld as consistent with the Fourth Amendment.
Similarly, Petitioner was afforded even clearer circumstances than the factory workers in
I.N.S. There, the factory workers were approached by officers while yet more officers stood by
the door, and no constructive seizure was found. Unlike the workers in that case, there is no
conceivable aspect of detainment here. There were not multiple officers on the scene outside of
his vehicle or any other fact in the record that lends itself to a showing of coercion or detainment.
In fact, both Petitioner and Deputy Sanderson had parted ways before Deputy Sanderson casually
asked for consent to search.
In sum, to accept Petitioner’s argument is to accept a proposition explicitly rejected by
this Court: dialogue with law enforcement cannot de facto create a constructive seizure. To find
otherwise on this issue would be in direct conflict with the holding of I.N.S. and the other cases
discussed above. Deputy Sanderson in no way threatened or scared Petitioner into consenting to
the search under the facts of this record. Accordingly, we respectfully ask that the trial court and
the Supreme Court of Eagleton be affirmed on this issue.
16
II.
THE DISTRICT COURT PROPERLY REFUSED TO ALLOW PETITIONER TO
WITHDRAW HIS GUILTY PLEA
Petitioner asserts that he should be allowed to withdraw his guilty plea as a result of his
alleged lack of notice about possible deportation. Petitioner blames his lack of notice on
ineffective assistance of counsel. This Court has noted that the right to effective assistance of
counsel applies to not only trials, but also guilty pleas. Lafler v. Cooper, 132 S. Ct. 1376, 1384
(2012) citing Hill v. Lockhart, 474 U.S. 52, 56(1985). In order to set aside a sentence based on
ineffective assistance of counsel, petitioner must show that “counsel’s performance was
deficient” which requires “showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment” Strickland v.
Washington, 466 U.S. 668, 687 (2010). Further, petitioner must show that “the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant [of a fair trial], whose result is reliable.” Id. Finally, “[u]nless a
defendant makes both showings, it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result unreliable.” Id.
A. ATTORNEY BRENDANAWICZ’S ASSERTION THAT PETITIONER’S
CONVICTION CARRIED A “STRONG RISK” OF DEPORTATION WAS
CONSTITUTIONALLY SUFFICIENT.
Petitioner’s attorney told petitioner that there would be a “strong risk” of deportation,
which is exactly what is required by the Supreme Court in order to meet the first prong of the
Strickland test with regard to deportation. In order to overcome this claim, petitioner must show
that counsel’s performance was so deficient and his errors were so serious, that he was
effectively not functioning as “counsel.” Strickland, 466 at 687. Further, “judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689.
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This Court has held that “[w]hen a criminal defense attorney is aware that a client is an
alien, the attorney should advise the client that a criminal conviction may have adverse
consequences under the immigration laws” Padilla v. Kentucky, 559 U.S. 356, 387 (2010)
(emphasis added). Further, this Court noted “the client should consult an immigration specialist
if the client wants advice on that subject.” Id. (emphasis added). In concluding, this Court noted
that “any competent criminal defense attorney should appreciate the extraordinary importance
that the risk of removal might have in the client’s determination whether to enter a guilty plea”
Id. at 388 (emphasis added).
Many courts interpreting Padilla have rejected the claim that counsel has a duty to inform
his client that his conviction will automatically result in deportation. Specifically, the common
interpretation of Padilla has been that “the court’s overall emphasis was that the deportation
statute in question makes most drug convictions subject to deportation in the sense that they
certainly become deportable, not in the sense that plea counsel should know and state with
certainty that the federal government will, in fact, initiate deportation proceedings.”
Commonwealth v. Escobar, 70 A.3d 838, 842 (Pa. Super. Ct. 2013). Additionally, “[c]learly
Padilla requires counsel to inform defendant as to a risk of deportation, not as to its certainty.”
Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super. Ct. 2013). In fact, “the executive
branch has essentially unreviewable prosecutorial discretion with respect to commencing
deportation proceedings, adjudicating cases, and executing removal orders.” State of Wisconsin
v. Shata, 364 Wis. 2d 63, 96 (Wis. 2015), citing Reno v. Am-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482-85 (1999). As a result, “[t]he Padilla Court did not require that counsel advise
that the DHS would necessarily initiate and prosecute a removal proceeding against Padilla and
18
enforce a removal order against him because that was far from certain.” Shata, 364 Wis. 2d at
98.
In Padilla, the attorney there told his client, Padilla, that because he had been residing in
the United States for 40 years he did not have to worry about immigration proceedings at all.
Padilla 559 at 359 (emphasis added). Ultimately however, Padilla’s drug conviction did result in
essentially automatic deportation. Id. at 367. While the Court noted that it is important for
attorneys to give correct advice when it the statute is very clear about the possibility of
deportation, the Court never explicitly stated a requirement to notify a client when deportation is
automatic. Id. at 369. The Court only holds that counsel is only required to inform his or her
client when the conviction carries a risk of deportation. Id. at 374 (emphasis added).
The risk requirement is best explained in Shata, when the Wisconsin Supreme Court
emphasizes that only the executive branch can begin deportation proceedings. Shata 364 Wis. 2d
at 96. There, the defendant, Shata, was convicted of possession with intent to distribute
marijuana, and he sought post-conviction relief. The court believed that Shata’s attorney satisfied
Padilla when he advised Shata was a “strong chance” of deportation. Id. at 101 (emphasis
added). In fact, as the court indicated, because of the exclusive authority of the executive branch
to begin deportation proceedings, requiring the attorney to tell the client that he or she absolutely
will be deported could, in some cases, be incorrect advice. Id. The Shata court cites the Escobar
court, which concluded that defendant Escobar was not entitled to notification that there would
be absolute deportation, but instead that it was sufficient that his counsel told him that
deportation proceedings were “likely.” Escobar, 70 A.3d at 842. Finally, the McDermitt court
explicitly rejects the contention that McDermitt’s attorney had to inform that deportation was
19
automatic, and not merely possible because of Padilla. McDermitt, 66 A.3d at 814. The court
indicated that there is no requirement that McDermitt be told of his certainty of deportation. Id.
Application of these cases to petitioner shows that his attorney was not constitutionally
deficient. First, unlike in Padilla, counsel here indicated twice at the plea hearing that he told his
client first about the “potential” and second about the “strong possibility” of his deportation.
Then, the Court also told Petitioner that there would be a “risk” of deportation, and as a result,
petitioner still pled guilty. The Padilla Court faced a situation where the appellant in that case
was told that he would not in fact be deported at all. Clearly, that is not the present case.
Additionally, as many other cases have indicated, Padilla’s holding only required that attorneys
in deportation cases notify their clients about potential, not automatic deportation.. Even when
the Court acknowledged that in some cases, as it was in Padilla, the statute will be explicitly
clear, the duty is still only to notify the client of the risk. The Pawnee District Court and the
dissent in the Supreme Court of Eagleton both argue that, because the statute was explicitly clear
as to his likely deportation outcome, that petitioner had the right to know that his deportation was
automatic. However, this is not Padilla’s requirement. Padilla only holds that the defendant must
know of the risk, even though the statute in that case there was equally, if not more clear than the
statute in question here. At the post-conviction motion hearing, Petitioner’s counsel questioned
his original attorney, Mr. Brendanawicz, and attempted to make issue of the fact that Mr.
Brendanawicz did not explicitly conduct research on the immigration consequences of the crime.
However, this also is not Padilla’s requirement. The Court in Padilla explicitly indicated
that defense attorneys are not immigration attorneys, and if the defendant wanted further
counseling on that subject, they could seek an immigration attorney. In fact, in that hearing, Mr.
Brendawicz indicated that he had reached out to other federal prosecutors to see about his
20
client’s risk of deportation, and was constantly told that a guilty plea “could” result in a risk of
deportation. None of the prosecutors ever indicated it would mandate deportation. As a result of
those conversations, the attorney told his client that there was a “strong risk.” There is no
requirement in Padilla that defense counsel consult with immigration attorneys, or do anything
more than notify his client that there is a risk for deportation. In doing so, he more than
sufficiently met the Padilla requirement.
Additionally, Petitioner’s argument conflates his right to be told that he was deportable
with his feeling he should be told that he would be deported. As Shata, McDermitt, and Escobar
all indicate, in many cases, there is no way to know that a defendant will in fact be deported.
This is consistent with the advice that Attorney Brendanawicz received from federal prosecutors
that his client’s crime could result in deportation. In Shata, McDermitt and Escobar, as is the
case here, there is no way for the attorney to know with certainty that their client will be
deported. As a result, asking attorneys to indicate to their client that they will in fact be deported
could result in the attorney giving incorrect legal advice. In turn, this could discourage a guilty
plea and in some cases could result in a longer prison sentence in addition to potential
deportation. Shata, McDermitt, and Escobar all dealt with drug crimes, and like this case,
emphasize Padilla’s requirement only that the petitioner be told his crime has made him
deportable and that there is a risk of deportation.There is no requirement that Petitioner be
explicitly told that he will be deported.
The dissent in the Supreme Court of Eagleton also believes that petitioner here should
have been told, and believes there is a big difference between a “strong chance” and “subject to
automatic deportation.” The dissent argues that Petitioner should have been told that he was
“subject to automatic deportation” instead of being told that there was “a strong risk” he would
21
be deported. However, the statement that Petitioner was told by his attorney was in fact stronger
than the statement the dissent suggests. Telling Petitioner that there was a “strong risk” he would
be deported sounds significantly more definite than “subject to automatic deportation.” “Subject
to automatic deportation” leaves room for more ambiguity and sounds more discretionary, which
would not solve the problem Petitioner is claiming. It is true that there are some cases in which
lower courts have asked attorneys to distinguish between mandatory deportation and the
possibility of deportation. See State [of Ohio] v. Kostyuchenko, 8 N.E.8d 353 (Ohio Ct. App.
2014). However, Kostyuchenko is easily distinguishable. In that case, the attorney notified his
client of the risk of deportation using vague phrases such as “these are the types of crimes that
make someone deportable.” Id at 356. See also State [of North Carolina] v. Nkiam, 778 S.E.2d
863, 865 (N.C. Ct. App. 2015) (where the defendant was only notified that his conviction made
him “subject to deportation”). See also, Ex Parte Leal, 427 S.W.3d 455, 462 (where the
defendant was only notified that his conviction would lead to “deportation proceedings”)
(emphasis added). Here, Petitioner’s counsel testified that at the post-conviction hearing he
notified his client there was “strong chance” of deportation. Because counsel was not vague
when he told Petitioner there was “strong chance” of his deportation, he, like many other lower
court decisions, correctly interpreted the Padilla requirements.
Counsel’s actions in this case indicated that he sufficiently met the Padilla requirements
when he informed his client that there was a the risk of deportation. As a result, Petitioner failed
to prove that he had ineffective assistance of counsel under Strickland and should not be allowed
to withdraw his guilty plea. We respectfully ask this Court to affirm the Supreme Court of
Eagleton’s decision that counsel was not ineffective.
B. EVEN IF ATTORNEY BRENDANAWICZ’S PERFORMANCE WAS
INEFFECTIVE, PETITIONER HAS NOT ADEQUATELY ALLEGED SUBSEQUENT
22
PREJUDICE AND SHOULD NOT BE ALLOWED TO WITHDRAW HIS GUILTY
PLEA.
Even if this Court concludes that counsel was deficient, Petitioner has not alleged
prejudice and therefore should not be able to withdraw his guilty plea. Specifically, the second
prong of the Strickland test requires a showing that Petitioner has been prejudiced as a result of
his ineffective assistance of counsel. Strickland, 466 U.S. at 686. Using the Strickland test,
courts typically consider the totality of the circumstances to determine prejudice, including the
evidence that potentially supports the claim, the likelihood of success at trial,, the risks the
defendant would face at trial, any representations the defendant makes about their desire to
retract their plea, any connections the defendant has to the United States, and the district court’s
“admonishments.” United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014). Even beyond
these factors, many lower courts have held that “the trial court’s advisement that [a] defendant
may be deported as a result of his plea, is sufficient to overcome any prejudice caused by
counsel’s failure to properly advise the defendant.” State [of Ohio] v. Labadidi, 969 N.E.2d 335,
337 (Ohio Ct. App. 2012). See also Flores v. State [of Florida], 57 So. 3d 218, 320 (Fla. Dist.
Ct. App. 2010) (“[t]he court’s warning that Flores may be deported based on his plea cured any
prejudice that might have flowed from counsel’s alleged misadvice).
The Strickland Court indicated that it “is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding. Virtually every act or
omission of counsel would meet that test.” Strickland, 466 U.S. at 692. Therefore, to meet the
test, Petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Finally,
“[i]n making this determination, a court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury.” Id. at 698. Applying these factors, the Kayode
23
court analyzed many different specific facts about that case and determined that the defendant in
that case did not meet that test. Kayode, 777 F.3d at 725. Specifically, the Court first focused on
whether or not the defendant would have proceeded to trial knowing the likely immigration
consequences of his plea. The court noted that “[w]hile [the defendant] makes a number of sworn
statements about his counsel’s actions in his affidavit, he does not aver that he would have gone
to trial had he known of the immigration consequences of his plea” and that instead he simply
said he “never would have pled guilty.” Id. at 725-6. Additionally, the court considered his
likelihood of success at trial, and whether or not “a reasonable defendant would have rationally
chosen to go to trial under the circumstances, the court also considers the risk faced by a
defendant in selecting the trial rather than the plea bargain.” Id. at 726-7. And finally, the Court
considered the defendant’s ties to the United States. Id. at 727. After all of these analysis, the
Court concluded that the defendant was unable to prove prejudice.
Finally, in Labadidi, the trial court warned the defendant several times about potential
deportation. The defendant claimed he never received similar warnings from his lawyer.
Regardless, the trial judge’s warning eliminated any prejudice from that point forward. Labididi,
969 N.E.2d at 337. The court, citing Flores, stated that “[e]ven if we accept the averments of
defendant’s affidavit as true; namely that his attorney quietly told him not to worry, the trial
court clearly advised defendant on several occasions that his conviction would subject him to
deportation…For these reasons, defendant cannot establish the requisite prejudice necessary to
entitle him to relief.” Id. at 338.
Petitioner here must first meet the requirements of the Strickland test by showing that the
result of the proceeding would have been different had he known of the possibility of his
deportation. Similar to Kayode, Petitioner has failed to meet the requirements that he must meet
24
in order to prove prejudice. Petitioner claims that he wanted to go to trial because he “never
would have pled guilty” otherwise. However, that alone is insufficient. He must additionally
prove that it would have been rational for a reasonable person in those circumstances to go to
trial. Petitioner’s attorney admitted at the post-conviction hearing that “the matter was set for
trial, but I had no defense, no viable defense. He chose to enter the plea because we could not
really prevail if we went to trial.” The problem with Petitioner’s claim is that not only would he
not have been successful at trial, but he likely would have gotten a longer sentence in addition to
deportation after the sentence. As Petitioner acknowledged at the hearing, he was absolutely
aware that if he went to jail he would have been deported. It follows that if he was advised by his
attorney that he had no viable defense, his trial would have resulted in jail time and subsequent
deportation. Therefore, no rational and reasonable person would have proceeded to trial in
Petitioner’s situation. Additionally, at the hearing Petitioner stated that his attorney was hoping
to get Petitioner probation in order to avoid the deportation proceedings. Petitioner’s attorney did
in fact attempt to prevent his client from receiving deportation, but there was never any
guarantee. Pleading guilty was Petitioner’s best chance to avoiding deportation. Both Petitioner
and his attorney knew that, and the record makes that clear. Therefore, it would have been
unreasonable for Petitioner to proceed to trial in this case.
Additionally, at his hearing, Petitioner tried to indicate that he did not want to return to
Venezuela because “all of my family in Venezuela is gone…and I would have nothing if I have
to go back.” However, the relevant inquiry is not whether or not Petitioner has ties in his country
of origin, but whether Petitioner has ties to the United States. Petitioner claims that his “life and
work” are here yet Petitioner has no family in the United States. Moreover, while Petitioner does
own a business in the United States, he contends that his primary for not wanting to return to
25
Venezuela is that it is “dangerous” there. That is legally without merit; Petitioner should have
considered that before committing a felony in the United States.
Finally, even if Petitioner was prejudiced by his client’s alleged failure to notify him of
the risk of deportation, the trial judge’s warning to petitioner effectively ended any claim for
prejudice. Like in Labididi, Petitioner here was given a warning by the trial judge that his
pleading guilty would result in deportation. Knowing that, Petitioner still decided to plead guilty
to these claims. Petitioner explicitly confirmed to the trial judge that he knew there was a strong
risk of deportation after his attorney brought it to the court’s attention twice. As a result, even if
Petitioner claims that his choice to plead guilty was so influenced by his hope that he would not
be deported, he was not prejudiced because his hope did not manifest. The trial judge made sure
of that, and as a result, Petitioner has failed to adequately claim the prejudice prong of the
Strickland analysis.
For the reasons above, Petitioner failed to show that he was prejudiced if counsel’s performance
is found to be deficient.. Regardless of the actions of his attorney, Petitioner lost the his claim to
any alleged prejudice when the trial court confirmed his knowledge of a strong risk of
deportation. Therefore, Petitioner failed to meet the requirements to succeed on a claim of
prejudice and we ask this court to affirm the trial court’s ruling on prejudice.
26
CONCLUSION
For the foregoing reasons, the State of Eagleton ask that This Court affirm the trial
court’s decision to deny Petitioner’s motion to suppress. The State of Eagleton also asks that the
trial court’s decision to refuse Petitioner’s withdrawal of his guilty plea be affirmed. Deputy
Sanderson faithfully discharged his requirements under the Constitution and was in compliance
with the Fourth Amendment at all times during his encounter with Petitioner. Attorney
Brendanawicz’s warning of a “strong risk” was not only Constitutionally sufficient, but
Petitioner can show no resulting prejudice from Attorney Brendanawicz’s performance, and was
further barred by claiming any prejudice because of the trial judge’s warning. Because Petitioner
has failed to show any Fourth Amendment violation or deficient performance by Attorney
Brendanawicz, the decision of the trial court should stand.
27