               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-294

                                Filed: 6 November 2018

Craven County, No. 96 CRS 205

STATE OF NORTH CAROLINA

              v.

LEON BENNETT, Defendant.


        Appeal by the State from order entered 13 June 2017 by Judge Benjamin G.

Alford in Superior Court, Craven County. Heard in the Court of Appeals 3 October

2018.


        Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
        Hyde, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew
        DeSimone, for defendant-appellee.


        STROUD, Judge.


        On issuance of a writ of certiorari, the State challenges an order granting

defendant’s motion for reconsideration and motion for appropriate relief. Because

the requirements for counsel to advise a defendant of the immigration consequences

of a plea agreement established by Padilla do not apply retroactively, we reverse.

        In 1997, defendant pled no contest to possessing cocaine with the intent to sell

or deliver. In 2015, defendant filed a motion for appropriate relief. Defendant alleged

that at the time of his plea, “no factual basis existed in fact or in law to support that
                                 STATE V. BENNETT

                                  Opinion of the Court



Defendant’s possession of cocaine was with intent to sell and/or deliver.” On 19 July

2016, at the hearing on the matter, defendant raised a claim under Padilla v.

Kentucky, 559 U.S. 356, 176 L. Ed. 2d 284 (2010), and argued he was not informed of

the impact his conviction would have on his immigration status, particularly the risk

of deportation. The trial court specifically noted defendant was raising a ground not

part of his filed MAR but allowed defendant to amend his written motion.

       On 22 July 2016, defendant filed his amended MAR, alleging that when he

entered his plea, he was not advised, as required by Padilla, “that a criminal felony

conviction could be a basis for deportation proceedings.” On 18 August 2016, the trial

court entered an order denying defendant’s MAR.          The trial court found that

“Defendant was advised of the consequences regarding the possibility of deportation,

exclusion from this country, and the denial of naturalization under federal law at the

time the plea was entered, as evidenced by the transcript of plea contained in the

court file[.]” The order also decreed that “Petitioner’s failure to assert any other

grounds in his Motion is a BAR to any other claims, assertions, petitions, or motions

he might hereafter file in this case, pursuant to N.C.G.S. §15A-1419[.]” (Emphasis

in original).

       In 2017, defendant filed a motion to reconsider his amended MAR. Defendant’s

motion for reconsideration alleged he was entitled to reconsideration under State v.

Nkaim, 369 N.C. 61, 791 S.E.2d 457 (2016). The application of Padilla as discussed



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in Nkaim was the only ground for reconsideration defendant alleged. The trial court

held a hearing on the motion to reconsider on 1 June 2017, and on 13 June 2017, the

trial court entered an order granting defendant’s motion for reconsideration and his

MAR.    The trial court found that defendant “was not informed of the absolute

consequences that he would be removed and/or deported by the Federal Government

as a result of his ‘nolo contendere’ plea for a time served sentence” and decreed that

he was “not provided effective counsel,” “denied the right to trial by jury[,]” and

convicted “in violation of the Constitution of the United States or the Constitution of

North Carolina.” (Quotation marks omitted.) The State filed a petition for a writ of

certiorari, which this Court allowed.

       As noted, defendant’s motion for reconsideration was based on Nkaim, and his

argument at the hearing also focused on Nkaim, which his counsel argued “surprised

a lot of the bar” and placed a “fairly heavy burden” on defense counsel by going

“beyond what a lot of people interpreted Padilla” required “as just advising of risk.”

Nkaim was decided by this Court in 2015, and the North Carolina Supreme Court

ultimately concluded per curiam that discretionary review was improvidently

allowed. See Nkaim, 369 N.C. 61, 791 S.E.2d 457. Defendant’s counsel argued that

when the trial court denied his original MAR, the precedential value of Nkaim was

“pretty much clouded” but since the Supreme Court had dismissed the appeal, Nkaim

had become “the law of this state[.]” Defense counsel argued that because Nkaim



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required counsel to advise an immigrant defendant he would be deported, and not

just that he had a risk of deportation, his plea was not entered knowingly and

voluntarily under Padilla. Defendant argued no basis for reconsideration or for his

MAR other than his counsel’s failure to advise him of the consequences of his plea

based upon Padilla and Nkaim.

      On appeal, the State contends the trial court erred in allowing defendant’s

motion for appropriate relief because Padilla does not apply retroactively to

defendant. The State is correct; in State v. Alshaif, this Court determined Padilla

did not apply retroactively and concluded:

                    Padilla raises the question of the extent to which
             attorneys can be expected to anticipate the expansion of
             their obligations under Strickland and the Sixth
             Amendment. We conclude that Padilla was a significant
             departure from prior requirements and hold that the
             decision therefore created a new rule, the retroactive
             application of which would be unreasonable. We therefore
             hold that the trial court did not err by concluding that
             Padilla was inapplicable to Defendant’s case.

State v. Alshaif, 219 N.C. App. 162, 171, 724 S.E.2d 597, 604 (2012) (emphasis added).

      Defendant entered his plea in 1997; Padilla was decided in 2010, and is not

applied retroactively. See id. Defendant’s and the trial court’s reliance upon Nkaim

is misplaced because it does not address retroactivity. In Nkaim, the defendant

entered his plea in 2013, so the requirements of Padilla applied. See generally State

v. Nkaim, 243 N.C. App. 777, 778, 778 S.E.2d 863, 864 (2015). Based upon Padilla,



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                                  Opinion of the Court



Nkaim held that counsel must advise the defendant not just of a risk of deportation

if the consequence of the particular conviction is clearly deportation. Id. at 786, 778

S.E.2d at 869. But since Padilla does not apply retroactively, Nkaim also has no

application to defendant’s plea or MAR. We therefore reverse the trial court’s order.

Because we are reversing based on Padilla, we need not address the State’s other

issue on appeal.

      Defendant contends this Court should affirm the order because the trial court

found a second ground, not based on Padilla, for allowing his MAR. Defendant

further argues that since the State has failed to address any basis for the MAR other

than Padilla in its brief, the State has waived by failing to challenge the alternate

ground. Defendant bases this argument mostly on the trial court’s statement near

the end of the hearing, “I’m thinking out loud, does that make this plea not a knowing,

willful, understanding or as they say on the back here, it’s the informed choice of the

defendant made freely, voluntarily and understandingly, without even considering

Padilla[.]” (Emphasis added.) Defendant also contends the order is based upon

something other than Padilla based upon the portion of the order which states, “[t]he

Court further finds his plea was not the result of an effective waiver of his State and

Federal Constitutional rights to trial by jury, nor was he effectively advised of the

same[.]” But defendant’s argument takes the trial court’s “thinking out loud” and the

quoted portion of the order entirely out of context. Defendant’s amended MAR and



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                                   Opinion of the Court



motion to reconsider raised only one basis for relief: that he was not properly informed

of the consequences of his plea under Padilla. Defendant’s argument at the hearing

addressed the same issue and no other. In fact, defendant does not argue any possible

facts that could even support a conclusion he did not enter into his plea voluntarily

and understandingly other than failure to be sufficiently advised of his rights under

Padilla.

      Because Padilla does not apply retroactively, the trial court erred by granting

defendant’s MAR on this basis, so we reverse and remand.

      REVERSED and REMANDED.

      Judges DILLON and BERGER concur.




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