By Darrell A. Clay
From Oct. 1, 2009 to Sept. 30, 2010, 83,946 individuals were charged with a federal felony or Class A misdemeanor. An astonishing 96.8 percent of them pled guilty, a rate slightly higher than, but roughly consistent with, each of the previous 10 years.1 The plea rate in Ohio’s common pleas courts is somewhat lower—about 80 percent—although this is largely due to other forms of case disposition. Of 69,014 new criminal filings in fiscal year 2010, some 55,373 were resolved by plea agreement, but only 2,123—or about 3 percent—were resolved by bench or jury trial.2
Despite the nearly routine decision to plea bargain in criminal cases, defense counsel must remain vigilant in ensuring that clients fully appreciate the sweeping consequences that flow from a guilty plea, particularly to a felony. Failure to do so can expose defense counsel to claims of malpractice or ineffective assistance, though such claims face their own uphill challenges in succeeding.3
Although some consequences, such as loss of the right to bear arms or to vote, are often recognized, many others are often overlooked or unknown until it is too late. Some are a function of state law; others are imposed by federal law or regulation. Some consequences flow only for certain types of offenses, such as sexually based crimes. While the following is by no means comprehensive, it is intended to sensitize criminal defense practitioners to the need to address this topic actively with the client during discussions regarding any proposed plea agreement.
State law, not federal, dictates the consequences of a felony conviction on the right to vote. In Ohio, R.C. 3502.21(A) provides that a voter’s registration is cancelled following conviction of a federal or state felony. Furthermore, R.C. 2961.01 prohibits an incarcerated felon from voting. That right is restored automatically on the offender’s release from incarceration, although re-registration is necessary because of the effect of R.C. 3502.21(A).
Federal and state laws dictate limitations on a felon’s right to bear arms. Federal law prohibits a felon from knowingly acquiring, having, carrying, or using any firearm or ammunition.4 A similar prohibition extends to possession of explosives.5 Ohio law provides a similar bar for those convicted of a violent or drug-related felony.6 However, those rights may be restored by application to an appropriate court of common pleas.7
Holding public office
In Ohio, felons are prohibited from holding an office of “honor, trust or profit.”8 This includes state or local elective office, state boards and commissions, public official and employee positions, prosecutor and peace officer.9 Under federal law, a felony conviction for treason bars an individual from holding any office under the United States.10 A conviction for bribery of a public official or witness may, at the sentencing court’s discretion, result in a prohibition on holding any office of honor, trust, or profit under the United States.11
Felons are ineligible to serve on a federal grand or petit jury, unless their civil rights have been restored.12 State jury service is also prohibited in Ohio.13
Revised Code 2961.01(B) prohibits a felon from “circulat[ing] or serv[ing] as a witness for the signing of any declaration of candidacy and petition, voter registration application, or nominating, initiative, referendum, or recall petition.”
Loss of state licenses
Revised Code 2961.03 provides that a felony conviction for theft results in the automatic revocation of the licenses of those working as secondhand dealers, junk dealers, transient dealers, peddlers, itinerant vendors and pawnbrokers.
The U.S. Department of Housing and Urban Development has a “zero tolerance” policy, under which any conviction involving drugs or violence is grounds for eviction from public housing.14 Persons convicted of drug-related felonies are subject to a lifetime ban on Temporary Assistance to Needy Families and food stamps.15 Similarly, a drug-related conviction disqualifies an individual from receiving federal education grants, loans and work assistance.16 Completion of a drugrehabilitation program can restore the person’s eligibility.17
Nonresident aliens convicted of a felony are subject to deportation.18 Interestingly, Ohio judges are specifically required to warn defendants of this possibility prior to accepting a plea of guilty or no contest to any offense other than a minor misdemeanor. 19
Military service and benefits
Federal law prohibits felons from enlisting in any branch of the armed forces of the United States; however, the secretary of defense has the discretion to authorize exceptions. 20 Persons convicted of mutiny, treason, sabotage, rendering assistance to the enemy or other specifically enumerated offenses are barred from receiving all forms of veteran’s benefits, such as pension, disability, hospitalization and burial in a national cemetery.21
Federal contract exclusion
Many federal agencies have adopted regulations providing that persons convicted of felonies are excluded from participating in contracting opportunities.22 Of note, health care providers convicted of program-related fraud can be excluded from Medicare and Medicaid, and persons convicted of fraud or any Department of Defense contract are excluded for working on a defense contract for at least five years.23
Federal employment and licensure/security restrictions
Federal law automatically excludes felons from serving or continuing to serve as a law enforcement officer, without exception. 24 Persons wishing to serve as airport security screeners, or who need access to secure areas of an airport, must not have been convicted during the previous 10 years of a wide variety of felonies.25 Similar restrictions exist for persons whose employment requires a Transportation Worker Identification Credential.26 Merchant mariners also must not have been convicted of certain enumerated offenses, including federal “dangerous drug laws.”27 Airman certificates can be revoked for certain convictions, particularly those involving drugs.28
Conviction of state or federal felony drug offenses (and certain misdemeanor drug offenses) results in passport revocation if the offense involved use of the passport or the crossing of an international border.29 Even after passport rights are restored, convicted felons contemplating overseas travel must not forget to verify their eligibility for a visa from the destination country. Notably, a conviction for DUI—even as a misdemeanor—may be a barrier to entry to Canada. Some professional athletes have found it necessary to address this issue.30
Undoubtedly, there are a wide variety of collateral consequences to a criminal conviction. In fact, one report noted that Ohio law alone imposes 404 different consequences following a felony conviction, 72 percent of which relate to employability. 31 Defense counsel would be well served to ensure that clients are educated on this issue. It may also be appropriate for defense counsel to document in writing that the subject of collateral consequences has been discussed with clients before a plea agreement is accepted. Both the American Bar Association and the U.S. Department of Justice have issued comprehensive reports on the subject of collateral consequences that are excellent resources for defense counsel.32
Darrell A. Clay is a partner with Walter & Haverfield LLP, in Cleveland, where he practices in the areas of white-collar criminal defense, complex civil litigation and aviation law. Clay is a former chair of the Cleveland Metropolitan Bar Association Criminal Law Section. He can be reached at email@example.com.
1 U.S. Sentencing Commission, FY 2010 Annual Report (available at http://tinyurl.com/6o5qnkg).
2 Supreme Court of Ohio, The 2010 Ohio Courts Statistical Report (available at http://tinyurl.com/7qmxs5x).
3 See, e.g., Duncan v. Mullin, No. CIV 09-188-RAWKEW, 2010 WL 767097, at *2 (E.D. Okla. March 4, 2010) (“[C]ounsel’s failure to inform a defendant of the collateral consequences of a guilty plea . . . does not render the plea involuntary or implicate the Sixth Amendment.”); Park v. Wolff and Samson, P.C., 867 N.Y.S.2d 424 (N.Y. App. Div. 2008) (rejecting former client’s claim that attorney committed malpractice by failing to advise as to the immigration consequences of a guilty plea).
4 8 U.S.C. §921(g)(1).
5 18 U.S.C. §842.
6 R.C. 2923.13.
7 R.C. 2923.14.
8 R.C. 2961.01(A).
9 R.C. 2929.192(F)(1).
10 18 U.S.C. §2381.
11 18 U.S.C. §201(b)(4).
12 28 U.S.C §1865(b)(5).
13 R.C. 2961.01.
14 42 U.S.C. §1437d(k).
15 42 U.S.C. §1383(a)(2)(B)(ii)(IV).
16 20 U.S.C. §1091(r)(1).
18 8 U.S.C. §1227(a)(2)(A).
19 See R.C. 2943.031.
20 10 U.S.C. §504(a).
21 See 38 U.S.C. §§6104-05.
22 See, e.g., 5 C.F.R. §919.800; 48 C.F.R. §9.406-2.
23 See 42 U.S.C. §1320a-7; 10 U.S.C. §2408.
24 5 U.S.C. §7371.
25 49 U.S.C. §449356(b)(1)(B).
26 See 46 U.S.C. §70105.
27 See 46 U.S.C. §§7703, 7503.
28 See 14 C.F.R. §61.15.
29 See 22 U.S.C. §2714.
30 See Associated Press, “Miguel Cabrera Pleads No Contest” (Jan. 5, 2012) (available at http://tinyurl.com/6vewpue).
31 Carey Carr and Dennis Moore, “Ohio’s ‘Going Home To Stay’ Reentry Initiative,” Columbus Bar Lawyers Quarterly 46 (Fall 2009).
32 See American Bar Association, “Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations” (2009) (available to ABA members at http://tinyurl.com/6mom2ss); U.S. Department of Justice, “Federal Statutes Imposing Collateral Consequences Upon Conviction” (undated) (available at http://tinyurl.com/7b8otz3). An excellent summary of Ohio state law collateral consequences can be found in Kimberly R. Mossoney and Cara A. Roecker, “Ohio Collateral Consequences Project: Executive Summary,” 36 U. Tol. L. Rev. 611 (2005).