          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3517
                 _____________________________

MOHAMMED ALSUBAIE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

                          April 29, 2019


B.L. THOMAS, C.J.
     Appellant challenges the lower court’s denial of his motion for
postconviction relief, arguing that his counsel was ineffective in
failing to advise him of the deportation consequences of his no
contest plea. Because Appellant has shown a reasonable
probability that he would have rejected the plea and proceeded to
trial had he been adequately informed of the plea’s deportation
consequences, we reverse.
                               Facts
    In February 2014, Appellant was charged by information with
possession of a controlled substance (cocaine), possession of a
controlled substance (less than 20 grams of cannabis), and driving
without a valid driver’s license.
     The charges stemmed from Appellant’s arrest after an
Escambia County sheriff’s deputy stopped Appellant for running a
red light. During the traffic stop, Appellant told the officer he did
not have a valid driver’s license and that there was marijuana
under the driver’s seat. The officer searched Appellant’s person
incident to the arrest and found a “small white rock” in Appellant’s
front left pocket; the rock field-tested positive as a cocaine-based
substance.
     Appellant filed a motion to suppress the evidence seized
during the traffic stop, arguing that the traffic stop was unlawful.
The trial court denied Appellant’s motion. Appellant entered a
plea of no contest and reserved the right to appeal the trial court’s
ruling on his motion to suppress. We affirmed per curiam.
Alsubaie v. State, 151 So. 3d 1231 (Fla. 1st DCA 2014) (Table).
    Appellant’s plea agreement stated that he understood that if
he was not a citizen of the United States, his plea to the charges
may result in his deportation or expulsion from the United States.
During the plea colloquy, Appellant stated he had read,
understood, agreed with, and signed the plea agreement:
        THE COURT: And you understand about being a
    U.S. citizen?
         [APPELLANT]: Yes, sir.
        THE COURT: It’s possible that this could -- you
    could be deported. Well, he’s not adjudicated, but it’s
    possible you could be deported; do you understand that?
         [APPELLANT]: Yes, sir.
(Emphasis added.) The trial court found that Appellant freely and
voluntarily entered the plea, and the court accepted the plea. The
court withheld adjudication on the felony cocaine possession count,
and sentenced Appellant to 36 months’ probation. The court
adjudicated Appellant guilty on the two misdemeanor counts, and
sentenced Appellant to concurrent six-month terms of probation
for each count.
    In 2016, Appellant received a Notice to Appear from the U.S.
Department of Homeland Security (“DHS”), stating that he was
removable from the United States due to his convictions for
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possession of cocaine and possession of marijuana. Appellant
subsequently filed a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850, arguing that counsel
was ineffective for failing to advise Appellant of the immigration
consequences of his plea. Appellant attached an affidavit to his
motion as an exhibit, swearing that “[i]f I had known that by
entering my plea in this case I would become subject to mandatory
deportation I never would have entered it.”
     At an evidentiary hearing on Appellant’s motion, Appellant
testified that he is a citizen of Saudi Arabia, and he received
lawful, permanent resident status in the United States in 2013.
Appellant’s postconviction counsel stated that although the trial
court withheld adjudication on the felony count, the federal
government treats a felony plea of nolo contendere as the
functional equivalent of being adjudicated guilty of a felony, even
if adjudication is withheld. Appellant testified that he was
therefore placed in removal proceedings as a convicted felon,
despite the court withholding adjudication.
     Appellant testified that his trial counsel did not advise him
that his no contest plea would result in his mandatory deportation
and did not advise him to consult an immigration lawyer. He
testified that, had he known that as a result of his plea he would
be placed into DHS custody and subjected to mandatory removal,
he would not have entered the plea, but would have taken his case
to trial. Appellant’s trial counsel did not testify at the evidentiary
hearing.
     The postconviction court issued an order denying Appellant’s
motion for postconviction relief. While the court did not dispute
that deportation was a “‘presumptively mandatory’ consequence of
[Appellant]’s plea,” the court found that Appellant was not
prejudiced by his counsel’s failure to adequately advise Appellant
on the deportation consequences of his plea. The court found that,
based on the evidence in the record, Appellant had no chance of
being acquitted at trial of the charges to which he pled no contest,
and he therefore “would have been just as removable by
immigration officials after a conviction after a jury trial as he was
in light of a no contest plea.” Because the court found that “it
would have been objectively unreasonable to reject the State’s plea
offer,” the court found that Appellant was not prejudiced by his

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trial counsel’s failure to advise him on the deportation
consequences of his plea, and the court denied Appellant’s
postconviction motion.
                              Analysis
     “When considering a trial court's ruling on a rule 3.850 motion
after an evidentiary hearing, we defer to the trial court's factual
findings – provided that they are supported by competent,
substantial evidence – but we review de novo the trial court's
‘application of the law to those facts.’” Parenti v. State, 225 So. 3d
949, 951 (Fla. 5th DCA 2017) (quoting Jennings v. State, 123 So. 3d
1101, 1113 (Fla. 2013).
     To prove ineffective assistance of counsel, the defendant must
show that (1) counsel’s performance was deficient, and (2) the
defendant was prejudiced by that deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
     Where counsel could have easily determined that the
defendant’s plea would make him eligible for deportation, counsel
is deficient under the first Strickland prong in failing to give the
defendant correct and unequivocal advice regarding the
deportation consequences of his plea. Padilla v. Kentucky, 559
U.S. 356, 368-69 (2010).
     The State agrees that, because Appellant would be subject to
virtually certain deportation if he pleaded no contest, Appellant
was entitled to unequivocal advice that his plea would result in
deportation – advice he did not receive.        Thus, the State
acknowledges Appellant’s counsel provided deficient performance.
     On the second Strickland prong, “[i]n the context of guilty
pleas, . . . in order to satisfy the ‘prejudice’ requirement, 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.” Hill v. Lockhart, 474 U.S.
52, 58-59 (1985). “[T]o 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.”
Padilla, 559 U.S. 356 at 372.



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     In Lee v. United States, the Supreme Court analyzed what
facts are required to adequately demonstrate “a reasonable
probability that [the defendant] would have rejected the plea had
he known that it would lead to mandatory deportation.” 137 S. Ct.
1958, 1967 (2017). Based on the deficient advice of his attorney,
the defendant in Lee pled guilty and accepted a prison term of one
year and one day, but later learned that, because he had pled
guilty to an “aggravated felony,” he would be deported after his
prison sentence. Id. at 1963.
     The Supreme Court held that it would not have been
irrational for Lee to go to trial and risk additional prison time in
order to hold onto some chance of avoiding deportation. Id. at
1969. The Court noted that, even where loss at trial is a virtual
certainty, if a defendant views the consequences of losing at trial
and pleading guilty as “similarly dire, even the smallest chance of
success at trial may look attractive.” Id. at 1966.
    But for his attorney's incompetence, Lee would have
    known that accepting the plea agreement would certainly
    lead to deportation. Going to trial? Almost certainly. . . .
    [I]f the consequences of taking a chance at trial were not
    markedly harsher than pleading, as in this case, that
    “almost” could make all the difference.
Id. at 1968 (emphasis in original).
     Appellant scored 17.4 points on his Criminal Punishment
Code score sheet, and therefore likely risked no more than a year
in county jail if found guilty by a jury. * He presented uncontested
testimony that he would have gone to trial but for his counsel’s

    * Had Appellant been found guilty by a jury, the court could
have sentenced Appellant to a harsher state prison sentence, if it
made written findings that a nonstate sentence would present a
danger to the community. See § 775.082(10), Florida Statutes
(2017). However, such a finding was highly unlikely given the
nature of the charges. See Jones v. State, 71 So. 3d 173, 176 (Fla.
1st DCA 2011) (holding that a state sentence was improper where
“the record does not suggest that imprisonment within the state
prison system rather than the county jail would better deter him
from” repeating the charged conduct).

                                 5
failure to inform that his plea would lead to certain deportation.
Coupled with the limited additional consequence of a potential jury
verdict of guilt, and even a slight possibility of an acquittal, we
hold that there was a reasonable probability that he would have
risked proceeding at trial to avoid mandatory deportation.
     Appellant was therefore prejudiced by his trial attorney’s
failure to unequivocally advise him on the deportation
consequences of his plea and was thus deprived of his right to
effective counsel. We reverse the lower court’s order denying
Appellant’s motion for postconviction relief and remand for a new
trial.
    REVERSED and REMANDED.
KELSEY, J., concurs; WINOKUR, J., concurs with opinion.
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

WINOKUR, J., concurring.
     Alsubaie told the trial court—under oath—that he understood
he could be deported as a result of his no-contest plea. He also
swore that he read and understood the plea agreement, which
likewise informed him that his plea “may result in deportation or
expulsion from the United States.” That consequence came to
pass: two years after he entered the no-contest plea, the United
States Department of Homeland Security informed Alsubaie that
he was removable from the United States due to his convictions.
In spite of the clear indication that Alsubaie was made well aware
that he was facing deportation if he entered the plea, he moved to
withdraw the plea on the ground that he was not properly advised
that he was facing deportation.
     Alsubaie can make this claim in the face of record evidence to
the contrary by arguing that his lawyer had a duty to inform him
of deportation consequences, separate from and in addition to the
court’s duty to inform him, and by alleging that it was insufficient

                                 6
to tell him that he may face deportation, when in fact he would
face deportation.
     In any event, Alsubaie is entitled to relief pursuant to
Hernandez v. State, 124 So. 3d 757 (Fla. 2012). In Hernandez, the
court applied Padilla v. Kentucky, 559 U.S. 356 (2010), to a Florida
case. In Padilla, the Supreme Court ruled that a defendant may
withdraw a guilty plea if counsel did not advise him that the plea
would subject him to automatic deportation. 559 U.S. at 360. But
unlike the defendant in Padilla, 1 a defendant in Florida would
have been advised by the trial court during the plea colloquy that
a plea “may subject him or her to deportation.” Fla. R. Crim. P.
3.172(c)(8) (2014). Thus, even if counsel failed to advise the
defendant of deportation consequences, a Florida court was
required to give this advice as a part of the plea colloquy.
     However, the court in Hernandez ruled that the plea colloquy,
even one complying with the 2014 version of Rule 3.172(c)(8), was
insufficient to remove prejudice resulting from counsel’s failure to
advise the defendant about deportation, when deportation
consequences were “truly clear.” Hernandez, 124 So. 3d at 763. In
other words, the court’s advice required by the rule constituted an
“equivocal warning” because it stated that the defendant “may” be
deported, which was insufficient in cases where deportation was in
fact “presumptively mandatory” under federal law. Id.
     Under this standard, it appears that Alsubaie’s counsel was
deficient for failing to inform him of the fact that his deportation
was “presumptively mandatory” under federal law. Moreover,
neither his sworn testimony that he was aware that he may be
deported, nor his acknowledgement that he signed and understood
an agreement informing him of the same, was sufficient to
overcome counsel’s deficiency. 2



    1 See Com. v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), rev’d
and remanded sub nom. Padilla v. Kentucky, 559 U.S. 356 (2010).
    2 Since the State never introduced trial counsel’s testimony at
the evidentiary hearing, we are left only with Alsubaie’s testimony
that counsel told him nothing about deportation consequences of
the plea.
                                 7
     But for Hernandez, I would affirm the trial court’s ruling
because the record reflects that Alsubaie was told explicitly that
he could be deported, regardless of what counsel told him or failed
to tell him. Florida courts often reject postconviction claims that
counsel misadvised defendants, when the alleged misadvice is
inconsistent with the defendant’s sworn answers given in a plea
colloquy. See, e.g., La Page v. State, 29 So. 3d 1168, 1170 (Fla. 1st
DCA 2010) (rejecting the defendant’s claim that counsel
misadvised him regarding his potential sentence because the plea
colloquy showed that trial court “clearly informed Appellant of the
potential sentence he was facing”); Lamkin v. State, 215 So. 3d 640,
641 (Fla. 5th DCA 2017) (holding that the trial court’s “express
statements during the plea colloquy that it makes no promises as
to the sentence . . . can refute a defendant’s claims that, under the
advice of counsel, the defendant entered a plea believing he would
receive a particular sentence”). It is therefore difficult to see how
any lack of advice from Alsubaie’s counsel about deportation
prejudiced him, in light of evidence that he understood that he may
be deported. And it is difficult to understand how advice that he
may be deported is insufficient merely because federal law
provides that his deportation was “presumptively mandatory.”
     I am confident, however, that this issue will not continue to
arise. Alsubaie entered his plea in 2014. In 2015, Rule 3.172(c)(8)
was substantially amended. In re Amendments to Fla. Rules of
Criminal Procedure, 188 So. 3d 764 (Fla. 2015). The subdivision
no longer requires merely a brief warning that a plea “may subject”
the defendant to deportation, which it did when Alsubaie entered
his plea. The subdivision now requires the court to advise the
defendant to consult with counsel regarding deportation
consequences, and to allow a reasonable amount of time to permit
the defendant to consider the plea in light of deportation
consequences. Fla. R. Crim. P. 3.172(c)(8) (2018). See Goddard v.
State, 217 So. 3d 1105, 1110 n.2 (Fla. 2d DCA 2017) (recognizing
the effect of rule amendment). I have not found any cases where a
defendant was permitted to withdraw a plea pursuant to
Hernandez where the court read the defendant the post-2015 rule.
One may hope that judges giving advice pursuant to the new rule
have     adequately    informed     defendants    of    deportation
consequences, and that courts will no longer be compelled to order
the withdrawal of guilty pleas as in this case.

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                _____________________________

Jason Cromey, Pensacola, for Appellant.

Ashley Moody, Attorney General, Anne Conley and Amanda D.
Stokes, Assistant Attorneys General, Tallahassee, for Appellee.




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