       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                           JERMAINE FACEY,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-618

                              [July 23, 2014]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Barbara McCarthy,
Judge; L.T. Case No. 10021303CF10A.

   Luis Alberto Guerra, Fort Lauderdale, for appellant.

   No appearance required for appellee.

PER CURIAM.

    We affirm the order denying appellant’s rule 3.850 motion for
postconviction relief. We conclude that the record refutes appellant’s
allegations of ineffective assistance of counsel and that appellant’s remedy
from the harsh consequence of deportation lies, if anywhere, with
immigration officials.

                               Background

    On January 15, 2013, Facey, a citizen of Jamaica and lawful
permanent resident of the United States, entered a negotiated plea to
grand theft. According to the factual basis announced during the plea
hearing, Facey used a clearance code to obtain a discount for his friends
at a clothing store, causing the company to lose $459.37. Adjudication
was withheld, and he was placed on probation for 18 months. Immigration
officials subsequently initiated removal proceedings in August 2013 based
on the conviction in this case.

   In November 2013, Facey’s retained counsel filed a motion for
postconviction relief, arguing that trial counsel was ineffective in “failing
to tell [Facey] anything about the possible adverse immigration
consequences” of the plea and failing to even advise Facey to consult with
an immigration attorney. See Padilla v. Kentucky, 559 U.S. 356 (2010).
The motion claimed that if counsel had advised Facey to consult with an
immigration attorney he would not have pleaded.

    The trial court denied the motion based on the State’s response which
explains that Facey signed a written plea form that advised him that this
plea “will” result in his deportation. In the plea form, Facey acknowledged
that he had read and understood the plea form which he signed and
initialed.

   The State further noted that during the plea colloquy the court
confirmed that Facey had spoken about the immigration consequences
with counsel and that Facey did not want to confer with an immigration
attorney. The following transpired during the plea colloquy:

      COURT: Are you a United States Citizen?

      DEFENDANT: No, Judge.

      COURT: Do you understand by entering into this plea, with
      a withhold or an adjudication, that that could subject you to
      being deported?

      Where are you from?

      DEFENDANT: Jamaica.

      COURT:        You could be asked by the United States
      Immigration to leave the country permanently as a result of
      this plea, or held by immigration, picked up by immigration
      and held by immigration; do you understand that?

      DEFENDANT: Yes, Judge.

      COURT: And you talked thoroughly about the consequences
      with Mr. Rubinchik [defense counsel]?

      DEFENDANT: Yes, yes.

      COURT: And do you want to talk to anyone else about the
      immigration consequences?

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      DEFENDANT: No, Judge.

The judge later inquired of defense counsel:

      COURT: You did go over the immigration consequences, Mr.
      Rubinchik?

      COUNSEL: I did. And I explained because he’s a non-citizen
      he’ll not be eligible for PTI [a pretrial intervention program].

      COURT: Right.

      COUNSEL: I tried to get the State this morning to
      acknowledge the nature of the case, if he would pay restitution
      in full, if they would dismiss the case so Mr. Facey wouldn’t
      have to face those consequences. That request was denied,
      as well.

      Mr. Facey has the immigration consequences, and I’ll ask the
      Court to allow him to verify probation through pay stubs. I
      don’t want to jeopardize his job.

This appeal follows.

                                Discussion

    The record conclusively refutes Facey’s allegation that counsel failed to
“tell him anything” about the immigration consequences or that Facey was
prejudiced by counsel failing to advise him to consult an immigration
attorney. To the contrary, the record shows that Facey entered the plea
aware of the possibility of deportation and that counsel sought other
avenues in an attempt to avoid the immigration consequences.

   The Florida Supreme Court has held that, where the deportation
consequences are “truly clear” and virtually automatic, as they were for
Mr. Padilla, who pleaded to an aggravated felony, an “equivocal” “may” or
“could” deportation warning as required by rule 3.172(c)(8) does not
categorically bar a Padilla claim. Hernandez v. State, 124 So. 3d 757, 762-
63 (Fla. 2012). Mr. Hernandez, like Mr. Padilla, was convicted of an
aggravated felony, which precludes discretionary relief from removal. Id.
at 762; 8 U.S.C. § 1101(a)(43)(B) (defining an “aggravated felony” which
includes any “drug trafficking crime (as defined in section 924(c) of Title
18”). Here, Facey’s grand theft conviction has not been shown to be an

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aggravated felony, and automatic deportation has not been shown to be
clear from the face of the immigration statute. See Cano v. State, 112 So.
3d 646, 648 (Fla. 4th DCA 2013) (setting forth what a defendant is required
to prove in order to be entitled to relief under Padilla where the standard
may or could warning has been delivered).

    Third-degree grand theft does not appear to be an aggravated felony but
may be a crime of moral turpitude which can result in removal if
committed within five years of admission. See 8 U.S.C. § 1227(a)(2)(A)(i).
The Notice to Appear for removal proceedings indicates that Facey was
admitted to the United States on September 11, 2007. The offense was
committed in November 2010. Unlike the defendants in Hernandez and
Padilla, Facey was not convicted of an aggravated felony and may qualify
for discretionary cancellation of removal. See 8 U.S.C. § 1229b.

     Padilla does not require defense attorneys to provide perfect advice
about immigration consequences.           The Sixth Amendment does not
guarantee perfect, error-free counsel even as to criminal charges which
implicate liberty. Coleman v. State, 718 So. 2d 827, 829 (Fla. 4th DCA
1998) (“The standard is reasonably effective counsel, not perfect or error-
free counsel”). Padilla by its express terms is limited to those situations
where deportation is automatic and clear from the face of the statute.
Padilla, 559 U.S. at 369 (“When the law is not succinct and straightforward
. . . , a criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse
immigration consequences.”). Facey has not shown that the grand theft
conviction at issue subjects him to automatic deportation that is clear from
the face of the statute.

   Counsel’s initial brief in this appeal argues a new, different claim.
Counsel contends that the warning given by the court, advising that the
plea “could subject” Facey to being deported, was insufficient. Florida Rule
of Criminal Procedure 3.172(c)(8) requires that a court accepting a plea
assure itself that defendant understands that the plea “may subject him
or her to deportation[.]” It is improper for counsel to argue a different,
unpreserved claim in this appeal, and the trial court’s plea colloquy
satisfies the rule.

                               Conclusion

   The trial court properly denied the postconviction motion at issue
because the claim of ineffective assistance of counsel is conclusively
refuted by the record. We decline to extend Padilla to create an impractical
requirement that criminal defense attorneys provide clients with perfect

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immigration advice. Here, appellant entered his plea with eyes wide open
and aware of the risk of deportation. He now faces the very consequence
that he fully acknowledged understanding when he accepted the plea.

   We understand the concerns regarding the “harsh consequences of
deportation.” Padilla, 559 U.S. at 360-64. However, by entering into the
plea deal, the defendant avoided the possibility of a prison term. Serving
a prison sentence (for up to five years in this case), only to face removal
upon release from incarceration, is a harsh consequence as well. While
we often see much more serious offenses that are far more deserving of
deportation, Congress has eliminated the procedures permitting a judicial
recommendation against deportation. Id. at 361-62. Facey’s remedy from
the harsh consequence of deportation in this case lies, if anywhere, with
the discretion of immigration officials.

   Affirmed.

WARNER, MAY and CIKLIN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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