               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-1164

                               Filed: 3 November 2015

Wake County, No. 12 CRS 204293

STATE OF NORTH CAROLINA

              v.

ARCHIMEDE N. NKIAM, Defendant.


        Appeal by defendant from order entered 26 November 2013 by Judge Donald

W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 4 March

2015.


        Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
        for the State.

        Robert H. Hale, Jr. & Associates, Attorneys at Law, P.C., by Daniel M. Blau,
        for defendant-appellant.


        GEER, Judge.


        Defendant Archimede N. Nkiam, an alien who had obtained permanent legal

resident status in the United States, appeals from an order denying his motion for

appropriate relief (“MAR”) that, asserted a claim of ineffective assistance of counsel

(“IAC”) with respect to his guilty plea to two crimes that led to the initiation of

deportation proceedings. On appeal, defendant argues that the trial court should

have granted his MAR based on Padilla v. Kentucky, 559 U.S. 356, 176 L. Ed. 2d 284,

130 S. Ct. 1473 (2010), which established that incorrect advice regarding the

immigration consequences of a guilty plea may constitute IAC. We hold that the
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                                  Opinion of the Court



advice provided by defendant’s counsel in connection with his plea did not comply

with Padilla. Because the trial court did not specifically address the prejudice prong

of defendant’s IAC claim, we reverse the trial court’s order denying defendant’s MAR

and remand for a determination whether defendant was prejudiced by the IAC and

such further proceedings as are necessary.

                                        Facts

      Defendant was born on 5 January 1990 in the Democratic Republic of Congo

(“DRC”). Defendant moved to the United States and settled in Raleigh with his

family when he was about 11 years old. Defendant was admitted for an indefinite

period as a returning asylee, and he later became a permanent resident of the United

States after obtaining a green card.

      On 24 February 2012, defendant was arrested in connection with an armed

robbery of Jocqui Brown. On 16 April 2012, defendant was charged with having used

a knife or pistol to commit armed robbery of Mr. Brown’s personal property having a

value of $50.00, including a cell phone and a ball cap. Defendant was also charged

with conspiring with Terrence Mitchell and Leslie Martine to rob Mr. Brown.

Attorney Deonte Thomas, a Wake County public defender, was assigned to represent

defendant on the charges, and defendant met with Mr. Thomas several times about

his case.




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      At a hearing on 7 January 2013, defendant appeared in Wake County Superior

Court before Judge G. Wayne Abernathy to accept a plea offer that allowed him to

plead guilty to aiding and abetting common law robbery, a Class G felony, and

conspiracy to commit common law robbery, a Class H felony. After conducting a

colloquy with defendant, Judge Abernathy accepted defendant’s plea and sentenced

him to two consecutive suspended sentences. For the aiding and abetting charge,

defendant received a sentence of 13 to 25 months imprisonment, which was

suspended and defendant was placed on 24 months of supervised probation. For the

conspiracy charge, defendant was placed on an additional 24 months of supervised

probation after suspension of a sentence of six to 17 months imprisonment.

      Following   defendant’s   guilty   plea,   the federal   government initiated

deportation proceedings against defendant.        In January 2013, defendant was

detained by immigration officials and transported to an immigration holding facility

in Atlanta.

      On 3 April 2013, defendant filed an MAR asserting IAC that the trial court

denied without a hearing on 1 May 2013. This Court granted defendant’s petition for

writ of certiorari, reversed the trial court’s order, and remanded for an evidentiary

hearing. On 15 November 2013, the trial court held an evidentiary hearing at which

Mr. Thomas, defendant, defendant’s father, and an immigration law expert, Hans




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Linnartz, testified. Following the hearing, the trial court entered an order making

the following pertinent findings of fact.

      The trial court found that, following his arrest, defendant received “at a

minimum” the following information regarding the immigration consequences of his

guilty plea:

               a.   Defendant was informed by his attorney prior to
                    accepting the plea that there was at least a
                    possibility it could result in his deportation from the
                    United States;

               b.   Defendant reviewed and answered question #8 on
                    the Transcript of Plea form with his attorney,
                    indicating that he was a permanent U.S. resident
                    born in Congo, and that he understood his plea of
                    guilty could therefore result in deportation from the
                    country;

               c.   Judge Abernathy informed Defendant that his
                    guilty plea “would make him subject to deportation,”
                    and his attorney responded by confirming that it
                    could result in his deportation.

               d.   Defendant’s attorney stated during the colloquy that
                    he hoped the Defendant would not actually be
                    deported, but also stated “we told him we can't do
                    anything with that.”

               e.   Judge Abernathy directly cautioned the Defendant
                    that: i) his guilty plea could result in deportation; ii)
                    the judge had no control over that in state court; and,
                    iii) he could not make Defendant any promises about
                    what would happen with his potential deportation.

               f.   During the colloquy, Defendant was asked three
                    different times whether he understood that his plea


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                   could have immigration consequences, and each
                   time the Defendant answered that he understood.

      The trial court then further found that defendant testified that if he had “been

advised of the high likelihood that he would be deported as a result of his negotiated

plea, he would not have accepted it.” However, the trial court also found that “[i]n

reviewing the overall reasonableness of Defendant’s decision to accept the original

plea agreement,” there was a “sound factual basis for th[e] plea,” including (1)

anticipated testimony from the victim, Mr. Brown, identifying defendant, Mr.

Mitchell, and Mr. Martine as being involved in the robbery, as well as their car, the

weapons used, and the stolen property found in defendant’s and his accomplices’

possession; (2) evidence that officers apprehended defendant and the other two men

30 minutes after Mr. Brown reported the crime; and (3) Mr. Mitchell’s agreement in

exchange for a plea to testify that defendant was driving when the robbery was

committed although Mr. Mitchell denied any weapons were used.

      The trial court found that had defendant proceeded to trial on the robbery with

a dangerous weapon charge, he could have been sentenced to 51 to 74 months in

prison and would be subject to the same immigration consequences he now faces. On

the other hand, the trial court acknowledged that defendant and his father both

testified as to their fears of political and ethnic persecution if defendant were to

return to DRC.




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      The trial court then determined that, given its review of defendant’s testimony,

the relevant immigration statutes, and Mr. Linnartz’ testimony,

             a.     Defendant’s conviction constituted an “aggravated
                    felony” under 8 USC § 1101, since it carried a
                    potential prison sentence of at least twelve months.

             b.     Defendant therefore became “removable” and
                    subject to deportation by accepting the plea,
                    pursuant to 8 USC § 1227, and he is not eligible for
                    Asylum or Cancellation of Removal relief. 8 USC §
                    1229b; 8 USC § 1158.

             c.     However, several other avenues of relief from
                    deportation were (and in some cases still are)
                    possible for Defendant, such as:

                    i.     Withholding of Removal (8 USC § 1231);

                    ii.    Appeal of a denial of Withholding to the
                           Immigration Board of Appeals or the 11th
                           Circuit Court of Appeals (8 CFE § 1003; 8
                           USC § 1252);

                    iii.   Convention Against Torture (“CAT”) Relief (8
                           CFR § 208.16);

                    iv.    Stay of Removal on discretionary grounds (8
                           CFR § 241.6).

Although these avenues were extremely difficult to achieve, according to Mr.

Linnartz, defendant and his father had testified to the threat of political persecution

in the Congo, and the trial court found defendant “therefore had a reasonable basis

for asserting such a claim for relief.”




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      Based on these findings of fact, the trial court concluded that for trial counsel

to satisfy his responsibility to advise his client regarding the immigration

consequences of a plea, Padilla’s “final holding” was that counsel need only “ ‘inform

her client whether his plea carries a risk of deportation.’ ” (Quoting Padilla, 559 U.S.

at 374, 176 L. Ed. 2d at 299, 130 S. Ct. at 1486). The trial court further concluded

that “Defendant’s assertion that he should have been advised he ‘would’ be deported

rather than ‘could’ be deported is asking for a higher standard than the United States

Supreme Court has set.”

      The trial court then distinguished Padilla on the grounds that counsel for the

defendant in Padilla “incorrectly ‘provided him with false assurance that his

conviction would not result in his deportation[,]’ ” (quoting Padilla, 559 U.S. at 368,

176 L. Ed. 2d at 295, 130 S. Ct. at 1483), whereas in this case, “Defendant was

correctly advised that he could be deported, and that advice was confirmed on

multiple occasions throughout the colloquy.” Further, the trial court noted that

Padilla recognized that “when the law is not ‘succinct and straightforward,’ the

defendant’s attorney ‘need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of immigration consequences.’ ” (Quoting Padilla,

559 U.S. at 369, 176 L. Ed. 2d at 296, 130 S. Ct. at 1483). He concluded that the law

was not clear because “Defendant was still eligible for various forms of relief from

deportation[.]”   Therefore, the standard set out in Padilla “was satisfied in the



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present case” when defendant’s attorney advised defendant that he “ ‘could’ be

deported.” The trial court consequently denied defendant’s MAR. Defendant timely

appealed to this Court.

                                      Discussion

      Defendant’s sole argument on appeal is that the trial court erred in denying

his MAR because the trial court misapplied the standard for determining IAC under

Padilla. This Court has explained,

                    “When considering rulings on motions for
             appropriate relief, we review the trial court’s order to
             determine whether the findings of fact are supported by
             evidence, whether the findings of fact support the
             conclusions of law, and whether the conclusions of law
             support the order entered by the trial court.” State v.
             Frogge, 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) . . . .
             However, “[i]f the issues raised by Defendant’s challenge to
             [the trial court’s] decision to deny his motion for
             appropriate relief are primarily legal rather than factual in
             nature, we will essentially use a de novo standard of review
             in evaluating Defendant’s challenges to [the court’s] order.”
             State v. Jackson, [220] N.C. App. [1], [8], 727 S.E.2d 322,
             329 (2012)[.]

State v. Marino, ___ N.C. App. ___, ___, 747 S.E.2d 633, 640 (2013), app. dismissed

and disc. review denied, 367 N.C. 500, 757 S.E.2d 907, cert. denied, __ U.S. __, 188 L.

Ed. 2d 914, 134 S. Ct. 1900 (2014).

      To prevail on an IAC claim,

                   “[F]irst, the defendant must show that counsel’s
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not


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              functioning as the ‘counsel’ guaranteed the defendant by
              the Sixth Amendment. Second, the defendant must show
              that the deficient performance prejudiced the defense.
              This requires showing that counsel’s errors were so serious
              as to deprive the defendant of a fair trial, a trial whose
              result is reliable.”

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland

v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)).

       This case is the first in which our appellate courts have been called upon to

interpret and apply Padilla’s holding. In Padilla, 559 U.S. at 359, 176 L. Ed. 2d at

289-90, 130 S. Ct. at 1477, the defendant, who was not a United States citizen, pled

guilty to transporting a large amount of marijuana, and, as a result, he was

deportable under 8 U.S.C. § 1227(a)(2)(B)(i) (2014).          8 U.S.C. § 1227(a)(2)(B)(i)

provides that any alien “convicted of a violation of (or a conspiracy or attempt to

violate) any law or regulation . . . relating to a controlled substance . . . , other than a

single offense involving possession for one’s own use of 30 grams or less of marijuana,

is deportable” if the offense is committed after entry into the United States.

       After discovering that his pleas made him deportable, the defendant filed a

postconviction IAC proceeding in Kentucky state court seeking to withdraw his guilty

pleas. Padilla, 559 U.S. at 359, 176 L. Ed. 2d at 290, 130 S. Ct. at 1478. In support

of his IAC claim, the defendant alleged that his plea counsel failed to advise him of

the immigration consequences of his plea and, further, told him that he did not have

to worry about his immigration status since he had lived in the United States for such


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a long period of time. Id. The defendant alleged that he relied on his counsel’s

erroneous advice when pleading guilty and that he would have insisted on going to

trial had he received correct advice from his attorney. Id.

      After the defendant was denied relief in the Kentucky Supreme Court, the

United States Supreme Court granted certiorari to address whether, under the Sixth

Amendment right to effective assistance of counsel, defense counsel had “an

obligation to advise [a client] that [an] offense to which he was pleading guilty would

result in his removal from this country.” Id. at 360, 176 L. Ed. 2d at 290, 130 S. Ct.

at 1478 (emphasis added).      In describing the context of its opinion, the Padilla

majority noted that “[w]hile once there was only a narrow class of deportable offenses

and judges wielded broad discretionary authority to prevent deportation . . .

deportation or removal is now virtually inevitable for a vast number of noncitizens

convicted of crimes.”     Id. (internal citation omitted).     Consequently, “[u]nder

contemporary law, if a noncitizen has committed a removable offense . . . , his removal

is practically inevitable but for the possible exercise of limited remnants of equitable

discretion vested in the Attorney General [under 8 U.S.C. § 1229b (2002)] to cancel

removal[.]” Id. at 363-64, 176 L. Ed. 2d at 292, 130 S. Ct. at 1480.

      The Padilla majority acknowledged that, given the change in deportation law,

“ ‘[p]reserving the client’s right to remain in the United States may be more important

to the client than any potential jail sentence[,]’ ” and “[t]he weight of prevailing



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professional norms supports the view that counsel must advise her client regarding

the risk of deportation.” Id. at 367, 368, 176 L. Ed. 2d at 294, 295, 130 S. Ct. at 1482,

1483 (quoting INS v. St. Cyr, 533 U.S. 289, 322, 150 L. Ed. 2d 347, 376, 121 S. Ct.

2271, 2291 (2001)).

       The Padilla majority, therefore, held that “counsel must inform her client

whether his plea carries a risk of deportation. Our longstanding Sixth Amendment

precedents, the seriousness of deportation as a consequence of a criminal plea, and

the concomitant impact of deportation on families living lawfully in this country

demand no less.” Id. at 374, 176 L. Ed. 2d at 299, 130 S. Ct. at 1486. In rejecting the

argument that the duty to provide correct advice only applies when an attorney

chooses to advise her client on immigration consequences, the majority observed: “It

is quintessentially the duty of counsel to provide her client with available advice

about an issue like deportation and the failure to do so ‘clearly satisfies the first prong

of the Strickland analysis.’ ” Id. at 371, 176 L. Ed. 2d at 297, 130 S. Ct. at 1484

(quoting Hill v. Lockhart, 474 U.S. 52, 62, 88 L. Ed. 2d 203, 212, 106 S. Ct. 366, 372

(1985) (White, J., concurring in judgment)).

       Indeed, the majority noted that “were a defendant’s lawyer to know that a

particular offense would result in the client’s deportation and that, upon deportation,

the client and his family might well be killed due to circumstances in the client’s home

country, any decent attorney would inform the client of the consequences of his plea.



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We think the same result should follow when the stakes are not life and death but

merely ‘banishment or exile[.]’ ” Id. at 370 n.11, 176 L. Ed. 2d at 297 n.11, 130 S. Ct.

at 1484 n.11 (internal citation omitted) (quoting Delgadillo v. Carmichael, 332 U.S.

388, 391, 92 L. Ed. 2d 17, 19, 68 S. Ct. 10, 12 (1947)).

      The Padilla majority recognized the tension between the harshness of

deportation and the fact that “[i]mmigration law can be complex, and it is a legal

specialty of its own. Some members of the bar who represent clients facing criminal

charges . . . may not be well versed in it. There will, therefore, undoubtedly be

numerous situations in which the deportation consequences of a particular plea are

unclear or uncertain.” Id. at 369, 176 L. Ed. 2d at 295-96, 130 S. Ct. at 1483.

      Given this tension, the majority set out the following Sixth Amendment duty

that an attorney owes to a noncitizen defendant:

             The duty of the private practitioner in [unclear or
             uncertain] cases is . . . limited. When the law is not succinct
             and straightforward (as it is in many of the scenarios
             posited by Justice ALITO [in his concurring opinion]), 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. But when the
             deportation consequence is truly clear . . . the duty to give
             correct advice is equally clear.

Id., 176 L. Ed. 2d at 296, 130 S. Ct. at 1483 (emphasis added) (internal footnote

omitted).




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      In Padilla, whether the defendant was subject to mandatory deportation was

“truly clear,” and his appeal was “not a hard case in which to find deficiency[.]” Id.

at 368, 369, 176 L. Ed. 2d at 295, 296, 130 S. Ct. at 1483. The terms of the relevant

immigration statute, 8 U.S.C. § 1227(a)(2)(B)(i), “[were] succinct, clear, and explicit

in defining the removal consequence for [the defendant’s] conviction. . . .       [The

defendant’s] counsel could have easily determined that his plea would make him

eligible for deportation simply from reading the text of the statute, which addresses

not some broad classification of crimes but specifically commands removal for all

controlled substances convictions except for the most trivial of marijuana possession

offenses. . . . The consequences of [the defendant’s] plea could easily be determined

from reading the removal statute, his deportation was presumptively mandatory, and

his counsel’s advice was incorrect.” Padilla, 559 U.S. at 368-69, 176 L. Ed. 2d at 295,

130 S. Ct. at 1483.

      The Padilla majority, therefore, agreed with the defendant that, in his case,

“constitutionally competent counsel would have advised him that his conviction for

drug distribution made him subject to automatic deportation.” Id. at 360, 176 L. Ed.

2d at 290, 130 S. Ct. at 1478. The Supreme Court, however, remanded the case for

the Kentucky courts to determine whether the defendant was prejudiced by his trial

counsel’s incorrect advice. Id. at 374-75, 176 L. Ed. 2d at 299, 130 S. Ct. at 1487.




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      In this case, the State asserts that Padilla still requires no more than that

“counsel must inform her client whether his plea carries a risk of deportation.” Id. at

374, 176 L. Ed. 2d at 299, 130 S. Ct. at 1486 (emphasis added). However, a complete

reading of the Padilla majority opinion indicates that the quotation the State relies

upon represents a defense attorney’s minimum duty to the client. The Supreme

Court established a bifurcated duty: when the consequence of deportation is unclear

or uncertain, counsel need only advise the client of the risk of deportation, but when

the consequence of deportation is truly clear, counsel must advise the client in more

certain terms. Id. at 369, 176 L. Ed. 2d at 296, 130 S. Ct. at 1483. To read Padilla

otherwise would disregard the majority opinion’s emphasis on counsel’s duty, when

“the deportation consequence is truly clear,” to give “correct advice.” Id. The majority

opinion recognized that “[i]t is quintessentially the duty of counsel to provide her

client with available advice about an issue like deportation[.]” Id. at 371, 176 L. Ed.

2d at 297, 130 S. Ct. at 1484 (emphasis added).

      Moreover, Justice Alito’s opinion concurring in the result confirms our

interpretation of the majority opinion. Justice Alito warned, “the Court’s opinion

would not just require defense counsel to warn the client of a general risk of removal;

it would also require counsel in at least some cases, to specify what the removal

consequences of a conviction would be.” Id. at 377, 176 L. Ed. 2d at 301, 130 S. Ct. at

1488. In Justice Alito’s view, the majority’s approach was “problematic because



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providing advice on whether a conviction for a particular offense will make an alien

removable is often quite complex.” Id. Therefore, Justice Alito would have held, “an

alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel

advises the client that a conviction may have immigration consequences, that

immigration law is a specialized field, that the attorney is not an immigration lawyer,

and that the client should consult an immigration specialist if the client wants advice

on that subject.” Id. at 388, 176 L. Ed. 2d at 307, 130 S. Ct. at 1494.

       We hold that Padilla mandates that when the consequence of deportation is

truly clear, it is not sufficient for the attorney to advise the client only that there is a

risk of deportation. The State, however, alternatively contends that Padilla’s holding

should be limited to the facts of that case and, therefore, apply only when a noncitizen

defendant pleads guilty to a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i),

involving crimes relating to controlled substances. The State further argues that

Padilla’s holding should never apply to convictions for “aggravated felon[ies],”

identified as deportable offenses under 8 U.S.C. § 1227(a)(2)(A)(iii), because the

deportation consequences for an aggravated felony, as defined in 8 U.S.C. §

1101(a)(43) (2014), can never be “truly clear.”

       In support of its argument that deportation can never be a truly clear

consequence when a defendant pleads guilty to an aggravated offense, the State cites

no authority other than Justice Alito’s opinion concurring in the result, which noted



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that whether an alien is convicted of an aggravated felony is not always easy to

determine. See Padilla. 559 U.S. at 378, 176 L. Ed. 2d at 302, 130 S. Ct. at 1489

(“Defense counsel who consults a guidebook on whether a particular crime is an

‘aggravated felony’ will often find that the answer is not ‘easily ascertained.’ ”).

However, nothing in the majority opinion limits its holding to crimes relating to

controlled substances or suggests that the deportation consequence of convictions

under other subsections of 8 U.S.C. § 1227 cannot also be truly clear. Instead, the

majority agreed only that immigration law is not succinct and straightforward “in

many of the scenarios posited by Justice ALITO[.]” Padilla, 559 U.S. at 369, 176 L.

Ed. 2d at 296, 130 S. Ct. at 1483 (emphasis added).

      However, numerous other courts considering guilty pleas to aggravated

felonies have concluded that the immigration consequences of such pleas can be truly

clear. See, e.g., United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (holding,

with respect to defendant who pled guilty to aggravated felony, that “[a] criminal

defendant who faces almost certain deportation is entitled to know more than that it

is possible that a guilty plea could lead to removal; he is entitled to know that it is a

virtual certainty”); Hernandez v. State, 124 So. 3d 757, 762 (Fla. 2012) (per curiam)

(holding as to guilty plea to aggravated felony that “counsel was deficient under

Padilla for failing to advise [the defendant] that his plea subjected him to

presumptively mandatory deportation”); Encarnacion v. State, 295 Ga. 660, 663, 763



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S.E.2d 463, 466 (2014) (holding with respect to guilty plea to aggravated felony that

“[i]t is not enough to say ‘maybe’ when the correct advice is ‘almost certainly will’ ”

lead to deportation); Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013)

(holding with respect to aggravated felony that “when the deportation consequence is

clear, as it was in Padilla and as it is here, defense counsel has an equally clear duty

to give correct advice”); State v. Kostyuchenko, 8 N.E.3d 353, 357 (Ohio Ct. App. 2014)

(per curiam) (holding as to aggravated felony plea that counsel “had a duty under

Padilla to ascertain from the immigration statutes, and to accurately advise him,

that his conviction mandated his deportation”); State v. Sandoval, 171 Wash. 2d 163,

172, 249 P.3d 1015, 1020 (2011) (en banc) (holding that defense counsel violated

Padilla in connection with aggravated felony plea).

      We hold that Padilla is not limited to its facts and that the deportation

consequences resulting from a guilty plea to an aggravated felony may, depending on

the particular offense, be truly clear within the meaning of Padilla. Defendant

asserts that, in this case, (1) the offenses of aiding and abetting common law robbery

and conspiracy to commit common law robbery were aggravated felonies, and (2) the

deportation consequences of defendant’s guilty plea were truly clear. Therefore,

according to defendant, mere advice that his guilty plea gave rise to a risk of

deportation was not adequate under Padilla.




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      The State does not seriously dispute that defendant’s offenses amount to

aggravated felonies. 8 U.S.C. § 1101(a)(43)(G) defines “aggravated felony” to include

“a theft offense . . . or burglary offense for which the term of imprisonment [is] at least

one year[.]” Additionally, 8 U.S.C. § 1101(a)(43)(U) provides that “an attempt or

conspiracy to commit an offense described in this paragraph” is an “aggravated

felony.” The offense of aiding and abetting common law robbery is plainly one of theft

under 8 U.S.C. § 1101(a)(43)(G), and the conspiracy to commit common law robbery

under 8 U.S.C. § 1101(a)(43)(U) is plainly a conspiracy to commit an offense under 8

U.S.C. § 1101(a)(43)(G). See John Rubin and Sejal Zota, Immigration Consequences

of a Criminal Conviction in North Carolina 100 (2008) (stating that common law

robbery is aggravated felony because it is theft offense under 8 U.S.C. §

1101(a)(43)(G)). Defendant was also sentenced for a term of more than a year; the

fact that the court suspended his sentences is immaterial.               See 8 U.S.C. §

1101(a)(48)(B) (“Any reference to a term of imprisonment or a sentence with respect

to an offense is deemed to include the period of incarceration or confinement ordered

by a court of law regardless of any suspension of the imposition or execution of that

imprisonment or sentence in whole or in part.”).

      Moreover, the relevant provisions of the United States Code plainly indicate

that defendant’s deportation upon entering his guilty plea was “presumptively

mandatory.” See Padilla, 559 U.S. at 369, 176 L. Ed. 2d at 295, 296, 130 S. Ct. at



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1483 (finding deportation consequences “truly clear” when “[t]he consequences of

Padilla’s plea could easily be determined from reading the removal statute”).

      When other courts have found deportation consequences unclear for particular

guilty pleas, they have pointed to the need for trial counsel to look beyond the plain

language of the United States Code in order to reach a conclusion regarding the

deportation consequences for the defendant. See, e.g., United States v. Chan Ho Shin,

891 F. Supp. 2d 849, 856 (N.D. Ohio 2012) (“Given the divergent views among the few

circuits that had addressed the issue, and the silence of the others, this Court cannot

hold that the relevant immigration statute was . . . ‘truly clear’ at the time of [the

defendant’s] plea.”); State v. Ortiz-Mondragon, 358 Wis. 2d 423, 433, 856 N.W.2d 339,

344 (Wis. App. 2014) (“If an attorney must search federal court and unfamiliar

administrative board decisions from around the country to identify a category of

elements that together constitute crimes of moral turpitude, and then determine

whether a charged crime fits that category, then the law is not ‘succinct, clear, and

explicit.’ ” (quoting Padilla, 559 U.S. at 368, 176 L. Ed. 2d at 295, 130 S. Ct. at 1483)),

aff’d, 364 Wis. 2d 1, 866 N.W.2d 717 (Wis. 2015). In this case, however, there was no

need for counsel to do anything but read the statute.

      Rather than argue that it was unclear whether defendant was subject to

presumptive mandatory deportation, the State contends that the deportation

consequences for defendant were not truly clear because of the availability of other



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“various forms of relief from deportation,” as referenced in the trial court’s order.

These forms of relief include Withholding of Removal, 8 U.S.C. § 1231(b)(3) (2014)

(prohibiting government from deporting alien if alien’s life or freedom would be

threatened because of race, religion, nationality, membership in particular social

group, or political opinion; denial may be appealed); Convention Against Torture, 8

C.F.R. §§ 208.16-18 (2014) (deferring deportation under the United States

Convention Against Torture if alien can demonstrate he would be tortured if returned

home); Stay of Removal, 8 C.F.R. § 241.6 (2014) (allowing application to local

immigration director for discretionary stay of removal).

      According to the uncontradicted testimony of defendant’s immigration law

expert Mr. Linnartz, these avenues of relief from deportation were “in the realm of

mathematical possibility,” but such relief was a “remote possibility” at the time

defendant entered his guilty plea. With respect to Withholding of Removal and the

Convention Against Torture, Mr. Linnartz testified that this type of relief was rarely

granted, did not confer lawful legal status, and the deferral of deportation would be

lifted as soon as the threat to the defendant abated. With respect to the Stay of

Removal, Mr. Linnartz explained that such relief was only temporary -- such as in

the event of a medical emergency -- and was almost never granted to an alien being

deported due to a criminal conviction. Mr. Linnartz emphasized that (1) none of the

forms of relief would eliminate the deportation order, (2) a defendant could end up



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spending his life in a detention facility, (3) a defendant could be deported to a third

country if there was a fear of persecution, and (4) lawful status would never be

conferred.

      The State has cited no authority supporting its contention that the possible

availability of these forms of rare relief render defendant’s deportation consequences

unclear. In Padilla, the majority opinion noted the potential availability to the

defendant of an avenue of relief from a deportation order: 8 U.S.C. § 1229b, which

grants the Attorney General discretionary authority to cancel an alien’s removal. 559

U.S. at 363-64, 176 L. Ed. 2d at 292, 130 S. Ct. at 1480. The majority explained that

a noncitizen’s “removal is practically inevitable but for the possible exercise” of this

discretion, but still concluded that the defendant’s removal was a “presumptively

mandatory” consequence and that “the terms of the relevant immigration statute are

succinct, clear, and explicit in defining the removal consequence[.]” Id. at 364, 368,

369, 176 L. Ed. 2d at 292, 295, 130 S. Ct. at 1480, 1483. In short, Padilla focused on

whether the defendant’s conviction made him deportable under 8 U.S.C. § 1227 and

not on the availability of possible avenues of relief.       If, as the Padilla Court

necessarily concluded, the availability of discretionary relief under 8 U.S.C. § 1229b

did not render the deportation consequences unclear, we cannot conclude that the

unlikely avenues of relief that the trial court relied upon are sufficient to support a

conclusion that the deportation consequences for defendant were not “truly clear.”



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      Moreover, we believe that Padilla’s holding would be substantially

undermined by the State’s contention, if accepted, that the theoretical availability of

relief that does not eliminate the deportation order and grant lawful status renders

the law unclear. One or more of the avenues of relief relied upon by the trial court

would theoretically be available to most defendants. We note that other courts have

rejected the State’s approach, and the State has cited no authority supporting it. See

Encarnacion, 295 Ga. at 663, 763 S.E.2d at 466 (recognizing that counsel’s advice of

possibility of deportation for aggravated felony conviction pleas was incorrect despite

fact that “some noncitizens convicted of an aggravated felony might avoid removal”

because “those circumstances are exceptionally rare”); Enyong v. State, 369 S.W.3d

593, 600 (Tex. App. 2012) (concluding defendant’s deportation consequence for

pleading guilty to aggravated felony truly clear despite State’s reference to internal

United States Immigration and Customs Enforcement memo encouraging its

employees to use prosecutorial discretion in enforcing immigration laws), judgment

vacated on other grounds, 397 S.W.2d 208 (Tex. Crim. App. 2013) (per curiam).

      Consequently, we hold that the deportation consequences of defendant’s guilty

plea were truly clear in this case. Trial counsel was required, therefore, under

Padilla, “to give correct advice” and not just advise defendant that his “pending

criminal charges may carry a risk of adverse immigration consequences.” 559 U.S.

at 369, 176 L. Ed. 2d at 296, 130 S. Ct. at 1483.



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       The trial court’s findings establish only that defendant’s trial counsel informed

him that he could be deported, that the trial court had no control over deportation,

that his plea could have immigration consequences, and that his attorney hoped that

defendant would not actually be deported. While the State points to the attorney’s

testimony that he told defendant “you’re not a legal citizen[ and] it’s going to result

in deportation,” Mr. Thomas clarified, when asked about the accuracy of that

statement, that he actually advised defendant that he “could possibly be subject to

deportation.” Indeed, Mr. Thomas gave defendant a false assurance when he told

Judge Abernathy: “We told [defendant] we can’t do anything with [deportation], and

I’m hoping that my past experience doing this kind of things [sic] -- the Congo is not

one of the places they’re apt to send you back to.”1

       The trial court’s findings and the evidence, therefore, show that defendant was

only advised of the risk of deportation. This advice was not sufficient under Padilla

because it did not adequately advise defendant of the likelihood of deportation. See,

e.g., Hernandez v. State, 61 So. 3d 1144, 1151 (Fla. Dist. Ct. App. 2011) (“It is now the

law in this and every other state that constitutionally competent counsel must advise

a noncitizen/defendant that certain pleas and judgments will, not ‘may,’ subject the

defendant to deportation.”), aff’d per curiam, 124 So. 3d 757 (Fla. 2012); Encarnacion,


       1Mr.  Thomas also testified that he told defendant he did not practice immigration law and that
he offered to put defendant in touch with an immigration attorney if defendant ran into any trouble
after pleading guilty. This advice would have erroneously suggested that defendant still could have
done something to avoid deportation after pleading guilty.

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295 Ga. at 663, 763 S.E.2d at 466 (“It is not enough to say ‘maybe’ when the correct

advice is ‘almost certainly will.’ ” (quoting Hernandez, 61 So. 3d at 1151)).

      We need not determine precisely what advice Mr. Thomas should have given

defendant because, here, there can be no question that Mr. Thomas’ advice fell short

of what Padilla required.       Defendant has, therefore, shown that he received

ineffective assistance of counsel.

      Turning to the question whether defendant was prejudiced by the inadequate

advice, the State contends that any prejudice defendant might have suffered as a

result of misadvice by Mr. Thomas was cured by the plea colloquy conducted by Judge

Abernathy prior to defendant’s entering his plea. In Missouri v. Frye, ___ U.S. ___,

___, 182 L. Ed. 2d 379, 389, 132 S. Ct. 1399, 1406-07 (2012) (emphasis added), the

Supreme Court explained:

             At the plea entry proceedings the trial court and all counsel
             have the opportunity to establish on the record that the
             defendant understands . . . the advantages and
             disadvantages of accepting [the plea deal.] . . .
             [N]evertheless, there may be instances when claims of
             ineffective assistance can arise after the conviction is
             entered. Still, the State, and the trial court itself, have . . .
             a substantial opportunity to guard against this contingency
             by establishing at the plea entry proceeding that the
             defendant has been given proper advice or, if the advice
             received appears to have been inadequate, to remedy that
             deficiency before the plea is accepted and the conviction
             entered.




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       At the plea hearing in this case, Judge Abernathy announced that defendant’s

“guilty plea ‘would make him subject to deportation[.]’ ” However, this isolated

statement, when read in the context of the entire colloquy, cannot reasonably be read

as advising defendant that his plea would certainly result in deportation.

Immediately following this statement, Mr. Thomas interjected that defendant’s plea

“possibly could” make him subject to deportation.              Then, the trial court asked

defendant whether he understood that “there’s a possibility, because you’re not a U.S.

citizen, upon your plea of guilty you could be deported from this country or denied

readmission[,]” to which defendant replied that he did. Thus, the advice in the

colloquy, which merely advised defendant of the risk of deportation, was incorrect

and inadequate and did not cure any possible prejudice. See Enyong, 369 S.W.3d at

603 (“[I]t would seem illogical to . . . require effective counsel to provide specific advice

regarding ‘clear’ or ‘virtually certain’ immigration consequences, but then . . . hold

that a defendant is not prejudiced by counsel’s failure to provide this constitutionally

required advice simply when a trial court . . . provides a boilerplate warning

concerning general immigration consequences.                If such general admonishments

precluded a finding of prejudice, the . . . holding in Padilla would be stripped of much

of its force.”).

       The question remains whether defendant has adequately demonstrated

prejudice. In the plea context, “[t]he . . . ‘prejudice[]’ requirement[] . . . focuses on



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whether counsel’s constitutionally ineffective performance affected the outcome of the

plea process.” Hill, 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370. Thus, “the

defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Id. The Supreme Court in Padilla emphasized, that in applying Hill, “to obtain relief

on this type of claim, a petitioner must convince the court that a decision to reject the

plea bargain would have been rational under the circumstances.” 559 U.S. at 372,

176 L. Ed. 2d at 297, 130 S. Ct. at 1485.

      In Padilla, upon remand, the Kentucky Court of Appeals addressed whether

the defendant had been prejudiced by the incorrect advice he received from his trial

counsel. Padilla v. Commonwealth, 381 S.W.3d 322, 328 (Ky. Ct. App. 2012) (“Padilla

II”). In doing so, the Kentucky Court of Appeals held that a defendant need not show

“that an acquittal at trial was likely.” Id. The court in Padilla II explained:

             A reasonable probability [that a defendant, if advised
             adequately, would have decided to reject the plea offer]
             exists if the defendant convinces the court “that a decision
             to reject the plea bargain would have been rational under
             the circumstances.” Padilla, [559 U.S. at 372, 176 L. Ed.
             2d at 297,] 130 S. Ct. at 1485. This standard of proof is
             “somewhat lower” than the common “preponderance of the
             evidence” standard. Strickland, 466 U.S. at 694, [80 L. Ed.
             2d at 698,] 104 S. Ct. at 2068.

                    ....

                   The [trial] court must determine whether the
             defendant’s rejection of the plea offer would have been a


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             rational choice, even if not the best choice. Necessarily, the
             court must consider the importance a particular defendant
             places upon preserving his or her right to remain in the
             country. A noncitizen defendant with significant ties to
             this country may rationally be willing to take the risk of a
             trial while the same decision by one who has resided in the
             United States for a relatively brief period of time or has no
             family or employment in this country may be irrational.

Id. at 328-29 (emphasis added) (internal footnote omitted).

      Other jurisdictions addressing the question of prejudice in light of Padilla have

adopted a similar approach to that taken in Padilla II. See, e.g., Hernandez v. United

States, 778 F.3d 1230, 1234 (11th Cir. 2015) (holding defendant alleged sufficient

facts to support finding of prejudice from ineffective assistance of counsel in

connection with guilty plea when defendant alleged that “he would not have pleaded

guilty if a plea would have ‘automatically remove[d] him from his family and from a

Country he ha[s] called home all [of] his adult life’ ”); United States v. Urias-Marrufo,

744 F.3d 361, 368 (5th Cir. 2014) (finding prima facie evidence of prejudice for

purposes of IAC claim when defendant swore in statement that had she known she

was pleading guilty to deportable offense, she would not have pled guilty); United

States v. Orocio, 645 F.3d 630, 643, 645 (3rd Cir. 2011) (rejecting contention that

defendant must show acquittal at trial likely and finding prejudice when, “if made

aware of the dire immigration consequences of the proposed guilty plea, [defendant]

could have reasonably chosen to go to trial even though he faced a drug distribution

charge constituting an aggravated felony”), abrogated on other grounds by Chaidez v.


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United States, ___ U.S. ___, 185 L. Ed. 2d 149, 133 S. Ct. 1103 (2013); Bonilla, 637

F.3d at 984 (finding district court abused its discretion when it unreasonably denied

defendant’s motion to withdraw his plea where “entering a plea would mean that

after he served his sentence, [the defendant] would almost certainly be deported and

separated from his wife and children”); Commonwealth v. DeJesus, 468 Mass. 174,

184, 9 N.E.3d 789, 797 (2014) (“If an assessment of the apparent benefits of a plea

offer is made, it must be conducted in light of the recognition that a noncitizen

defendant confronts a very different calculus than that confronting a United States

citizen.”); State v. Tejeiro, 345 P.3d 1074, 1084 (N.M. Ct. App. 2014) (“Defendant is

not required to demonstrate that he would have obtained a better result at trial than

he received from his plea. He need only demonstrate a reasonable probability that

he would have rejected the plea as offered had he known of its immigration

consequences.” (internal citation omitted)), cert. denied, 2015 N.M. LEXIS 128 (N.M.

2015); Kostyuchenko, 8 N.E.3d at 358 (finding evidence supporting prejudice where

prior to plea negotiations defendant was unconcerned with deportation, yet, had

defendant known plea would have resulted in deportation, defendant would have

insisted on going to trial or seeking to negotiate plea that preserved eligibility for

relief from deportation); Enyong, 369 S.W.3d at 603 (finding evidence of prejudice for

noncitizen defendant where “appellant stated that he would not have pleaded guilty

to the offenses if his trial counsel had advised him of the immigration consequences



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                                   Opinion of the Court



of his pleas”); Sandoval, 171 Wash. 2d at 176, 249 P.3d at 1022 (finding prejudice

notwithstanding sentencing benefit of plea “[g]iven the severity of the deportation

consequence”); Ortega-Araiza v. State, 331 P.3d 1189, 1194 (Wyo. 2014) (“It would . . .

be entirely reasonable for [the defendant] to reject the plea and insist on going to trial

(or seek a different plea agreement with lesser deportation consequence) as he was

facing deportation whether he was convicted pursuant to a plea agreement or as a

result of trial. Better to gamble on an acquittal at trial, than the assured conviction

and deportation resulting from a guilty plea.”).

      Some courts discussing prejudice based on insufficient advice under Padilla

have, however, focused on whether there was a likelihood of acquittal at trial. E.g.,

Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013) (no possible prejudice

where defendant faced almost certain conviction of aggravated felony at trial); Pilla

v. United States, 668 F.3d 368, 373 (6th Cir. 2012) (finding no possible prejudice in

light of overwhelming evidence of defendant’s guilt for aggravated felony and noting

that defendant cannot show prejudice on appeal “merely by telling [the Court] now

that she would have gone to trial then if she had gotten different advice”); Matos v.

United States, 907 F. Supp. 2d 378, 382 (S.D.N.Y. 2012) (holding that “[t]he

overwhelming evidence of guilt forecloses any reasonable probability that [the

defendant] would have proceeded to trial rather than accept the Government’s [plea]

offer” where defendant’s insistence on appeal that he would have rejected plea



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bargain was deemed “self-serving”); Mendoza v. United States, 774 F. Supp. 2d 791,

800 (E.D. Va. 2011) (finding no possible prejudice in light of overwhelming evidence

of defendant’s guilt of deportable offenses and sentencing benefits defendant received

from pleading guilty).

      While the United States Supreme Court in Hill stated that “[i]n many guilty

plea cases . . . the determination whether the error ‘prejudiced’ the defendant . . . will

depend in large part on a prediction whether the evidence likely would have changed

the outcome of a trial,” 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370, “[t]he

Supreme Court has ‘never required an affirmative demonstration of likely acquittal

at such a trial as the sine qua non of prejudice.’ ” Padilla II, 381 S.W.3d at 328-29

(quoting Orocio, 645 F.3d at 643). We believe cases focusing on the likelihood of

acquittal rather than considering the importance a defendant places on avoiding

deportation ignore the primary focus of Padilla, which was in large part the

recognition that the likelihood of deportation may often be a much more important

circumstance for a defendant to consider than confinement in prison for any length

of time. 559 U.S. at 365, 368, 176 L. Ed. 2d at 293, 295, 130 S. Ct. at 1481, 1483.

Thus, the consequence of deportation may, in certain cases, weigh more heavily in a

defendant’s risk-benefit calculus on whether he should proceed to trial. For this

reason, Padilla II’s analysis is persuasive, and we hold that a defendant makes an

adequate showing of prejudice by showing that rejection of the plea offer would have



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                                          Opinion of the Court



been a rational choice, even if not the best choice, when taking into account the

importance the defendant places upon preserving his right to remain in this country.

        In this case, because the trial court concluded that defendant had failed to

show that his attorney inadequately advised him, the court never addressed the

prejudice prong of defendant’s IAC claim. The trial court held that defendant’s

decision to accept the plea was reasonable, but did not consider whether rejection of

the plea would be a reasonable choice given the immigration consequences. We hold

that defendant presented sufficient evidence to support a finding that rejection of the

plea offer would have been a rational choice for defendant, taking into account

defendant’s fear of deportation. Even if the evidence against defendant may have

made conviction for a deportable offense likely at trial, the evidence would permit a

finding that, had Mr. Thomas provided correct advice, it would have been a rational

course of action for defendant to forego the plea offered to him for the chance of

acquittal at trial or even just to delay deportation. “Moreover, had the immigration

consequences of [defendant’s] plea been factored into the plea bargaining process,

trial counsel may have obtained a plea agreement that would not have the

consequence of mandatory deportation.” Padilla II, 381 S.W.3d at 330.2 We therefore



        2We  note that our own case law, consistent with other jurisdictions, forbids a finding of
prejudice upon “ ‘[a] mere allegation by the defendant that he would have insisted on going to trial[.]’ ”
State v. Goforth, 130 N.C. App. 603, 605, 503 S.E.2d 676, 678 (1998) (quoting Barker v. United States,
7 F.3d 629, 633 (7th Cir. 1993)). The evidence here, however, far surpasses such an allegation and
affirmatively establishes circumstances demonstrating that if defendant had been properly informed
of the consequences of his plea, his priority would have been avoiding deportation.

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remand so that the trial court may address, in the first instance, whether defendant

was prejudiced by his trial counsel’s inadequate advice regarding the immigration

consequences of his guilty plea.

                                      Conclusion

      We hold that the trial court’s findings of fact establish under Padilla that

defendant received ineffective assistance of counsel in connection with his decision

whether to enter into a guilty plea. We, therefore, reverse the trial court’s denial of

defendant’s MAR and remand for a determination whether defendant has proven the

prejudice prong of his IAC claim.      In the event the trial court determines that

defendant has adequately shown prejudice, the trial court must set aside defendant’s

conviction and allow defendant to withdraw his guilty plea. State v. Moser, 20 Neb.

App. 209, 225, 822 N.W.2d 424, 436 (2012).

      REVERSED AND REMANDED.

      Judges ELMORE and INMAN concur.




                                          - 32 -
