PADILLA V. COM.
CRIMINAL – RCr 11.42
2004-CA-001981
PUBLISHED
VACATING AND REMANDING – COMBS
DATE: 3/31/2006
CA vacated Circuit Court order denying Defendant’s RCr 11.42 motion alleging ineffective assistance of counsel without a hearing.
Padilla did not receive a hearing on his claim. The record does not refute his allegation that counsel affirmatively assured him he would not be deported as a result of pleading guilty; nor does it refute his claim that but for counsel’s mistaken advice, he would not have pled guilty. We are persuaded that counsel’s wrong advice regarding deportation could constitute ineffective assistance of counsel pursuant to Sparks, supra. Thus, as there are relevant and substantial issues of fact that cannot be resolved by an examination of the record, we conclude that Padilla is entitled to an evidentiary hearing on his motion. See, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).
