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Failure to Warn Client of Loss of Pension

In a recent Superior Court of Pennsylvania case, Commonwealth v. Abraham, 996 A2d 1090 (Pa. Super. 2010), the Court held that the failure of counsel to advise his client that a direct consequence of entering a guilty plea to Indecent Assault with a female student would be the forfeiture of his vested pension rights was ineffective assistance of counsel.  The lesson we learn is that whenever a client pleads to any criminal offense, we are obligated to make certain that the client understands all of the consequences of the plea.  The court makes a distinction between a direct consequence and a collateral consequence.

A collateral consequence is defined as one that is not related to length or nature of the sentence imposed on the basis of the guilty plea, while a direct consequence is one that has a definite, immediate and largely automatic effect on the range of the defendant's punishment.  The loss of the pension is related to the nature of the sentence and the application of the measure has a definite, immediate and automatic effect on the range of the punishment.  By pleading guilty, the defendant immediately lost his rights in his vested state teacher pension.  By failing to tell him, the attorney was deemed to be ineffective, and the case was remanded.

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