Remember Denedo?

Remember Denedo? And Padilla upon which Denedo is based?

A court of appeals for South Carolina issued an interesting decision where the appellant raised IAC for defective advice on the immigration consequences of an Alford plea to a third-degree [felony] to criminal sexual conduct with a minor.

“Petitioner argues the PCR court erred in finding he suffered no prejudice from plea counsel's failure to advise him that entering the Alford plea would result in mandatory deportation and a permanent ban on reentry. We disagree.”

At the PCR hearing, Petitioner testified counsel knew he was from Mexico and counsel told him it would be possible he would be deported.3 Petitioner testified plea counsel never explained he would be placed on the sex offender registry or what that entails. He further testified plea counsel did not explain that a sexual crime against a child is considered a crime of moral turpitude or advise that by entering such a plea, Petitioner would "be banned completely from ever reporting legal status in the United States." Plea counsel testified, "I told him that immigration was probably gonna come and get him when his sentence was over no matter when it ended . . . and that they would use this conviction against him as a reason to deport him." When asked on cross-examination about whether he explained the immigration consequences that would result from the plea, plea counsel responded, "Yes, I'm sure I did. I told him that it would be used against him in a deportation proceeding if there was one." Plea counsel acknowledged the plea would completely bar Petitioner from ever legally entering the United States, but when asked whether Petitioner understood that by entering the plea he would not be permitted to return to raise his children, counsel responded, "I don't know if I ever told him he'd never be able to come back to the United States. I may not have gone over that with him, but he was very much aware that the immigration court would—you know, this would be used against him and he would probably be deported."

We find the PCR court correctly found plea counsel was deficient in failing to explicitly advise Petitioner of the mandatory deportation and ban on reentry Petitioner faced if he entered this Alford plea. In Taylor v. State, our supreme court explained, "If the deportation consequences of a particular plea are unclear or uncertain, 'a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.'" 422 S.C. 222, 225, 810 S.E.2d 862, 863 (2018) (quoting Padilla, 559 U.S. at 369). "However, where the terms of the relevant immigration statute are 'succinct, clear, and explicit' in defining the removal consequence, counsel has an 'equally clear' duty to give correct advice." Id. (quoting Padilla, 559 U.S. at 368-69).

Here, the terms of the removal statutes are succinct, clear, and explicit in mandating Petitioner was deportable if convicted. See, e.g., 8 U.S.C.A. § 1227 3 Petitioner interrupted the plea hearing eight times to ask questions and confer with his counsel. However, none of the interruptions appear to have been regarding immigration consequences. (a)(2)(A)(i) .

Having found errror the court next addressed prejudice, and found none.

Based on the record: (1) he would have taken the plea anyway to get a shorter sentence, (2) there was an interpreter present in court to clear up any language issues, (3) “no one forced him to plead, no one talked him into pleading, there was a substantial likelihood he would be convicted if he went to trial, and that he had plenty of time to talk with his lawyer. There were numerous instances when Petitioner was unclear during the plea hearing; however, each time the plea court permitted Petitioner to confer with counsel.” And during the plea hearing, none of the eight “interruptions” by the accused related to immigration questions.

There was a dissent to the nonprejudice finding.

The dissent focused much more on the language barrier and the accused’s confusion stemming from that. Fortunately, at court-martial there is less of a language barrier. But, that doesn’t mean that counsel should ensure the possibility that legal mumbo jumbo and technicalities are properly understood.​

Query: Applying this case to military practice, does that mean trial defense counsel has to do more research and analysis of the immigration status post-trial? And would a similar rule apply when giving Miller advise regarding SOR?