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In Commonwealth v. Sylvain, the Massachusetts Supreme Judicial Court (SJC) held that the duty of defense counsel, that had been previously laid out in Padilla v. Kentucky, will become a retroactive law. In Padilla, the Court held that defense counsel has a duty to inform their non-citizen clients of potential immigration consequences of a conviction. This retroactive law applies to those immigration clients that have had a conviction after April 1, 1997.

In the Massachusetts case of Commonwealth v. Clarke, the SJC held that Padilla was not a new rule and therefore found it to be retroactive to 1997. However, in Chaidez v. U.S., the federal Supreme Court found that Padilla was new law and not a retroactive one. Recently, the SJC took the Sylvain case sua sponte, meaning of their own will and without anyone’s specific request, from the Appeals Court and held that Padilla is in fact considered to be a retroactive law under the Commonwealth of Massachusetts.

This finding may now allow non-citizen aliens to convicted of a crime to move for post-conviction relief pursuant to Massachusetts Criminal Procedure Rule 30, based upon on a claim of ineffective assistance of counsel if their attorney failed to perform said duty of informing him or her of any immigration consequences of their post April 1, 1997 conviction.

About the Author
Attorney Nicholas J. LaFountain has extensive experience litigating and negotiating civil disputes of many types. He has been successfully representing clients in the courtroom since 2004.