In 2010, The United States Supreme Court held in the landmark decision of Padilla v. Kentucky, 130 S.Ct. 1473 (2010) that defense attorneys must inform non-citizen clients the risks of deportation arising from guilty pleas.  After this decision the real question became is the ruling retroactive?  The US Supreme Court did not answer this important question in their decision and it was left up to the individual states to determine whether this applied retroactively, and if so, how far back would it go?

The Supreme Judicial Court of Massachusetts answered this question in Commonwealth v. Clarke, 460 Mass. 30 (2011).  The highest court in Massachusetts concluded that Padilla should apply retroactively to guilty pleas entered after April 1, 1997, the point at which (according to the Padilla opinion) deportation became, as a matter of federal law, “intimately related to the criminal process” and “nearly an automatic result for a broad class of noncitizen offenders.”

This holding opened the door in Massachusetts for Motions for New Trials to be filed regarding non-citizen guilty pleas where defense attorneys did not properly advise their clients of the risks of deportation.  These guilty pleas could have come in almost all types of criminal cases, including but not limited to; drug cases, sex crime cases, gun cases, domestic abuse cases and drunk driving cases.

In February, 2013, the United States Supreme Court released their decision in Chaidez v. United States which held that Padilla was only retroactive to the date of that decision in 2010.  They answered the important question regarding whether Padilla applied retroactively, and the high court said it did not.  While the holding in Commonwealth v. Clarke was and is still valid law, there is now another case before the Supreme Judicial Court of Massachusetts, Commonwealth v. Sylvain, SJC-11400, basically asking the court to reconsider its retroactive ruling in Clarke based on what the US Supreme Court has held in Chaidez.  This much awaited decision should be available in the next few months and will certainly impact the ability for non-citizen defendants to challenge their guilty pleas based on the lack of information given to them regarding the  risks of deportation .