PORTLAND – A judge has declined to vacate convictions against a Portland man whose family says he is stranded in his native country of Vietnam.

The family of 34-year-old Phu Truong asked Justice Robert Crowley at a hearing last month in Cumberland County Superior Court to toss out convictions against Truong from 1996.

Truong pleaded guilty to felony charges including three counts of violating a bail order. His family says he was never advised by his lawyer or a judge that the pleas would make him subject to deportation, or that he might not be able to return to the U.S. if he visited relatives in Vietnam.

The lawyer representing Truong and his family, Robert Levine, argued that the convictions should be vacated based on a landmark U.S. Supreme Court ruling made earlier this year.

In the case of Padilla v. Kentucky, the court ruled that defense lawyers have a constitutional obligation to warn clients about any possible immigration consequences when they consider plea agreements.

Levine said the Supreme Court meant for the ruling to be retroactive to 1995, according to language in the decision written by Justice John Paul Stevens.

Crowley disagreed with Levine’s interpretation, although he noted the lack of consensus on the question.

“Courts across the country are split,” the judge wrote in a 15-page order. “This court concludes that Padilla announced a new rule of law that is not applied retroactively.”

In his ruling, Crowley said that Truong’s lawyer in 1996 would not have been expected to know the immigration consequences of the plea deal, and that the quality of his representation cannot be judged by standards that have evolved dramatically over the past 14 years.

“Prior to its 2010 decision in Padilla, the Supreme Court has never held that defense counsel in a criminal case had any particular responsibility to advise an alien defendant of the potential consequences of a conviction,” Crowley wrote. “The import of the court’s ruling in Padilla is that defense attorneys are now required to have a firm understanding of immigration law.”

If Crowley had sided with Levine, the ruling could have opened the door to other challenges by noncitizens who entered into plea agreements in Maine from 1995 to 2000, and who weren’t advised of the implications of those pleas.

The Legislature passed a law in 2000 requiring judges, before they sign off on plea agreements, to inquire whether the convictions could lead to deportation.

Levine said the fact that judges are coming to different opinions on the meaning of Padilla shows that the issue might have to be clarified through another case before the Supreme Court.

A translator has communicated the facts of Crowley’s ruling to Truong’s parents, Levine said. He expects to meet with them next week. They will have the option of appealing Crowley’s decision to the Maine Supreme Judicial Court. Another avenue for appeal might be a petition with the federal court in Portland.

Truong’s parents say their son went to Vietnam a few years ago to visit relatives. When he tried to return, Phu Truong was told that he was not allowed entry into the U.S. because of his 1996 felony convictions.

Truong’s father, Chinh Truong, said his son is stuck in Vietnam and is being warehoused in an institution for the mentally ill.

During the hearing before Justice Crowley last month, Truong’s mother broke into tears and said her son was being tortured.

“She is absolutely traumatized by her son being in a mental institution half a world away,” Levine said. “I’m sure this is profoundly disappointing for them.”

Staff writer Trevor Maxwell can be contacted at 791-6451 or at:

[email protected]


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