                     THE STATE OF SOUTH CAROLINA
                          In The Supreme Court

            Gregg Taylor, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2015-001118


                         ON WRIT OF CERTIORARI



                           Appeal from Berkeley County
                 J. C. Nicholson, Jr., Post-Conviction Relief Judge


                             Opinion No. 27769
              Submitted October 17, 2017 – Filed February 28, 2018


                                   REVERSED


             Mark J. Devine, of Charleston, for Petitioner.

             Attorney General Alan M. Wilson and Assistant Attorney
             General Justin J. Hunter, both of Columbia, for
             Respondent.


JUSTICE KITTREDGE: This is a post-conviction relief (PCR) matter in which
Petitioner Gregg Taylor, a Jamaican citizen, pled guilty to a drug offense.
Petitioner resided in South Carolina for years with his wife and two children, all
three of whom are United States citizens. In plea negotiations, Petitioner's primary
concern was whether he would be subject to deportation. Plea counsel viewed
Petitioner's grave concern with the prospect of deportation as a "collateral" issue,
yet provided general assurances to Petitioner that he would not be deported. As a
result, Petitioner pled guilty. The drug offense resulted in Petitioner's deportation,
and this PCR application followed. The PCR court denied relief. We granted a
writ of certiorari and now reverse.

                                          I.

Petitioner was indicted for possession with intent to distribute marijuana, which is
punishable by up to five years in prison and a fine of $5,000. Petitioner retained
counsel to represent him. It appeared the State's case against Petitioner was strong,
which prompted counsel to pursue a plea bargain. Following plea negotiations,
Petitioner pled guilty to the lesser included offense of possession of more than one
ounce of marijuana, which is punishable by up to six months in prison and a
$1,000 fine. Petitioner was sentenced to probation.

As a result of his conviction, Petitioner was deported and returned to Jamaica. The
essence of the PCR application was counsel's alleged failure to properly advise
Petitioner of the law concerning his risk of deportation. Because Petitioner had
been deported, he appeared at the PCR hearing by way of an affidavit, wherein he
stated counsel assured him that he would not be deported and that but for counsel's
erroneous advice, he would not have pled guilty and would have insisted on going
to trial.

                                          A.

The PCR court denied relief. Petitioner argues the PCR judge erred in refusing to
find plea counsel was ineffective in failing to advise Petitioner of the immigration
and deportation consequences of pleading guilty. "[A]dvice regarding deportation
is not categorically removed from the ambit of the Sixth Amendment right to
counsel." Padilla v. Kentucky, 559 U.S. 356, 366 (2010). 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." Id. 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. at 368–69.

Pursuant to federal law, an alien admitted to the United States who is convicted of
a violation of "any law or regulation of a State, the United States, or a foreign
country 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." 8
U.S.C.A. § 1227(a)(2)(B)(i) (emphasis added).

In his PCR affidavit, Petitioner asserted that counsel misadvised him that his guilty
plea would not have any adverse immigration consequences. Specifically,
Petitioner stated counsel told him he had "nothing to worry about as to the
immigration consequences of [his] plea . . . because [he] never had [his] lawful
Permanent Resident Status as yet and accordingly [his] guilty plea would not have
[any] consequences on [his] pending application . . . via [his] United States Citizen
wife." Petitioner further stated counsel informed him that if he had his Green
Card, he "would possibly have to deal with immigration, however because it was
pending, they could not use [his] guilty plea against [him]." (emphasis added).
Petitioner stated plea counsel told him, "I can promise you that you will walk out
of that court room a free man in the US, the only thing that you may have to do is 6
months' probation." Finally, Petitioner stated that, had he known he would have
faced deportation, he would not have entered a guilty plea, but would have insisted
on going to trial.

The PCR court found Petitioner failed to meet his burden of proof. Specifically,
the PCR court found plea counsel adequately complied with Padilla, and Petitioner
"was fully advised that he could face deportation as a result of pleading guilty."
Further, the PCR judge found any deficiency on the part of plea counsel was cured
by the plea judge during his colloquy with Petitioner. Finally, the PCR judge
found Petitioner failed to show that but for counsel's performance, Petitioner would
not have pled guilty.
                                          II.

This Court will uphold the findings of the PCR court when there is any evidence of
probative value to support them. Caprood v. State, 338 S.C. 103, 109–10, 525
S.E.2d 514, 517 (2000). However, this Court will reverse the PCR court's decision
when it is controlled by an error of law or unsupported by the evidence. Edwards
v. State, 392 S.C. 449, 455, 710 S.E.2d 60, 64 (2011).

                                          A.

In Padilla, the Supreme Court found the terms of 8 U.S.C.A. § 1227(a)(2)(B)(i)—
the same removal statute at issue in the instant case—are "succinct, clear, and
explicit in defining the removal consequences for Padilla's conviction," and
"counsel could have easily determined that [Padilla's] 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." Padilla, 559 U.S. at 368–69 ("This is not a hard case in
which to find deficiency: The consequences of Padilla's plea could have easily
been determined from reading the removal statute, his deportation was
presumptively mandatory, and his counsel's advice was incorrect."). Similar to
Padilla, Petitioner's drug charge was a categorically deportable offense.

Counsel's actual advice on the deportation issue was deficient as a matter of law.
Counsel did inform Petitioner he could face deportation, but counsel failed to
advise Petitioner that his deportation was presumptively mandatory. Pursuant to
Padilla, counsel must do more than "discuss immigration" or advise Petitioner he
might face adverse immigration consequences. Moreover, it is not clear if plea
counsel even understood he had a duty to advise Petitioner of the actual
immigration and deportation consequences of his guilty plea. When asked if he
had read Padilla, counsel responded, "No sir, I don't recall reading that" and
further stated:

      Sir, to be quite honest with you [the deportation consequences]
      wouldn't have mattered in reference to the defense of [Petitioner's]
      case. It's always going to go back to my protocol of whether the State
      can prove its case or not. This is a collateral issue you are discussing.
      I would not dwell -- I'll put it this way. Say that I determined
      hypothetically that he can be deported. Tell me how that assists me in
      whether or not he is guilty or not and how I can defend him? How
      does that change that?

(emphasis added).

In fact, the vast majority of plea counsel's PCR testimony shies away from
unequivocal statements as to his advising Petitioner regarding the deportation
consequences of his plea and, instead, focuses on counsel's "defense protocol" and
the steps counsel typically takes in evaluating a client's criminal charges and
formulating defenses. When asked if he read the federal deportation and removal
statute prior to Petitioner's plea, plea counsel stated "it wouldn't have mattered in
reference to the defense of this case" and any deportation or immigration
consequences were "a collateral issue." When asked if, at any point during the
decision to plead guilty, counsel talked with Petitioner about his immigration
status, counsel responded, "To be honest with you[,] his immigration status is nil in
reference to his freedom." When directly asked if he advised Petitioner that his
guilty plea carried the possibility of deportation, plea counsel testified his main
"concern was [defending] the P-W-I-D marijuana [charge]."

Plea counsel further testified immigration laws "really don't have no [sic] impact if
it's not going to help me in defense of my client," and the fact that Petitioner would
be subject to deportation as a result of his plea "would have been of small
consequences to me in relationship to the fact of what [Petitioner] was charged
with and my role as an attorney." In the following exchange, plea counsel asserted
it was Petitioner's duty to know the deportation consequences of his plea:

      Q.     So why did you not at least look at the removable statute to
             inform [Petitioner] by pleading guilty he would be subject to
             deportation?

      A.     Sir, [Petitioner] had an obligation separate and apart from me to
             know his rights to come into this country just like every other
             citizen who is legally in this country is held to the responsibility
             to know their rights as an American citizen. . . . So if I failed in
             any manner to heighten the consequences to him[,] I think there
             was an equal burden on him to know what his rights were when
             they gave him that [G]reen [C]ard.

Plea counsel's testimony is contrary to Padilla. We are bound by Padilla, which
under the circumstances presented here—the law explicitly defining the removal
consequences for Petitioner's conviction—imposed a duty on legal counsel to
understand Petitioner's legal status and correctly advise him of the law concerning
deportation. Counsel's testimony rejecting any duty to correctly advise a client in a
Padilla context leaves only Petitioner's affidavit wherein he states, "I depended on
my attorney to advise me and inform me properly as to the immigration
consequences if accepting the plea deal. . . . If I had known that I would have
faced deportation[,] I would have not entered a guilty plea, I would have gone to
trial." Given that Petitioner's offense was manifestly one subjecting Petitioner to
deportation, we are compelled to find that counsel's failure to correctly advise
Petitioner was deficient as a matter of law.
                                         B.

We turn now to the State's (and the PCR court's) reliance on the plea colloquy to
remedy the deficiency. During the plea hearing, before accepting Petitioner's
guilty plea, the plea court stated that a guilty plea could "subject [Petitioner] to
being removed from this country" and "could affect [Petitioner's] right to remain
here." Here, the colloquy was generic in that Petitioner was merely informed that
his plea could affect his immigration status. In light of Padilla and its progeny, we
are constrained to conclude that the plea court's general warning failed to cure
counsel's deficient representation. We acknowledge that in many circumstances a
plea court's standard colloquy will cover a multitude of deficiencies by counsel.
Pittman v. State, 337 S.C. 597, 600, 524 S.E.2d 623, 625 (1999) ("A defendant's
knowing and voluntary waiver of the constitutional rights which accompany a
guilty plea 'may be accomplished by colloquy between the Court and the
defendant, between the Court and defendant's counsel, or both.'") (quoting State v.
Ray, 310 S.C. 431, 437, 247 S.E.2d 171, 174 (1993)). But under Padilla, special
requirements have been added to counsel in the plea bargaining process when a
non-citizen is involved. The meaning of Padilla would be negated if we allowed
general comments from the plea court to satisfy the specific requirements imposed
on counsel under the Sixth Amendment. The generic statement by the plea court
was no better than counsel's general deportation advice, especially where Petitioner
had made it crystal clear that his decision to plead guilty turned on the prospects of
deportation.

In our research, we have found two cases, as well as a recent United States
Supreme Court decision, which we find sufficiently mirror the case before us and
compel the result we reach. The first case is State v. Sandoval, 249 P.3d 1015
(Wash. 2011). Sandoval was offered the opportunity to plead to a lesser rape
charge that was still an aggravated felony making him subject to mandatory
deportation. When Sandoval informed his attorney he did not want to plead guilty
if the plea would result in his deportation, counsel told him he should accept the
plea offer because he would not be immediately deported and would have
sufficient time to retain proper immigration counsel to ameliorate any potential
immigration consequences of his plea. Id.

Sandoval pled guilty and signed a plea statement containing the following warning:
"If I am not a citizen of the United States, a plea of guilty to an offense punishable
as a crime under state law is grounds for deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the laws of the United
States." Id. The plea judge confirmed in a colloquy that Sandoval had reviewed
the statement with his counsel and understood the warning. Id.

Noting the Padilla Court specifically stated "how critical it is for counsel to inform
her noncitizen client that he faces a risk of deportation," the Washington Supreme
Court found the guilty plea statement warning and the plea judge's review of the
same with Sandoval during the colloquy could not "save the advice that counsel
gave," which the court found "nullified the constitutionally required advice about
the deportation consequences of pleading guilty" and "impermissibly left Sandoval
[with] the impression that deportation was a remote possibility." Sandoval, 249
P.3d at 1020.

The second case is United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012),
wherein the Fourth Circuit Court of Appeals found a plea colloquy did not cure
counsel's incorrect advice regarding the immigration and deportation consequences
of the defendant's guilty plea. In Akinsade, the defendant, a Nigerian citizen who
was a lawful permanent resident of the United States, was charged with
embezzlement. Akinsade pled guilty after asking his attorney about the potential
immigration consequences of a guilty plea and being incorrectly assured by
counsel that he could not be deported based on the single conviction.

During Akinsade's plea hearing, the plea court reviewed the civil ramifications of
Akinsade's plea, as follows:

      The Court: People who are found guilty of felonies, often lose their
                 right to vote, certain professional licenses may be denied
                 them, may not be able to serve on a jury. And I know
                 felons can't possess firearms. Certain jobs may be denied
                 to you.

                   If you are on parole or probation with another system,
                   that can be affected. Or if you are not a citizen, you
                   could be deported. All of these things could be triggered
                   by being found guilty of a felony. Do you understand
                   that?

      Akinsade:    Yes, Your Honor.

      The Court:    Knowing that do you still wish to plead guilty?
        Akinsade:     Yes, Your Honor.

Id. (emphasis added).

On habeas review, the federal district court held that, while counsel was deficient
under the first prong of Strickland1 for rendering incorrect advice, Akinsade was
not prejudiced because the plea court's "admonishment of the potential for
deportation during the plea colloquy cured counsel's affirmative
misrepresentations." Id. On appeal, the Fourth Circuit found the plea court's
colloquy was inadequate and vacated the district court's order. Specifically, the
Fourth Circuit found:

        This general and equivocal admonishment is insufficient to correct
        counsel's affirmative misadvice that Akinsade's crime was not
        categorically a deportable offense. More importantly, the
        admonishment did not "properly inform" Akinsade of the
        consequence he faced by pleading guilty: mandatory deportation.
        Thus, Akinsade could not have known that deportation was a legally
        mandated consequence of his plea.

Id. The Fourth Circuit emphasized their decision should not be interpreted to
change the role of or impose new obligations on plea judges, or suggest a plea
judge "needs to be 'clairvoyant' or must 'guess' about whether a defendant has been
misinformed regarding a particular consequence of a plea." Id. Instead, the court
explained:

        When, as here, the claim raised is that of ineffective assistance of
        counsel, the overall focus must be on the prejudice arising from
        counsel's deficient performance. If a district court's admonishment so
        happens to correct the deficient performance then there is no
        prejudice; however, if there is no correction, then our scrutiny is not
        directed toward the district court but appropriately to the
        constitutional offender.

Id. The court further held that, in order for a plea court's colloquy to be curative,
"it should address the particular issue underlying the affirmative misadvice."

1
    Strickland v. Washington, 466 U.S. 668 (1984).
And finally, the Supreme Court's recent decision in Lee v. United States, with
strikingly similar facts, further supports the granting of relief to Petitioner. 137
S.Ct. 1958 (2017). Lee, a non-United States citizen, was indicted on a drug
charge. The evidence against Lee was overwhelming, perhaps like it may be
against Petitioner. Because a conviction seemed an almost certainty, counsel
sought to negotiate a plea agreement. Lee, however, was concerned with his
immigration status and repeatedly asked counsel about the risk of deportation.
Counsel assured Lee that he would not be deported as a result of pleading guilty.
Lee was notified soon after the guilty plea that he would be deported, and in
response, Lee filed a federal habeas claim, and he lost in the federal district court
and the Court of Appeals for the Sixth Circuit. Lee prevailed in the Supreme
Court, and the Court's analysis provides Petitioner strong support.

Lee adopted the familiar Hill v. Lockhart2 framework in a Padilla context. In part,
the Lee majority noted the following:

        Lee . . . argues he can establish prejudice under Hill because he never
        would have accepted a guilty plea had he known that he would be
        deported as a result. Lee insists he would have gambled on trial,
        risking more jail time for whatever small chance there might be of an
        acquittal that would let him remain in the United States. The
        Government responds that, since Lee had no viable defense at trial, he
        would almost certainly have lost and found himself still subject to
        deportation, with a lengthier prison sentence to boot. Lee, the
        Government contends, cannot show prejudice from accepting a plea
        where his only hope at trial was that something unexpected and
        unpredictable might occur that would lead to an acquittal.

        The Government asks that we, like the Court of Appeals below, adopt
        a per se rule that a defendant with no viable defense cannot show
        prejudice from the denial of his right to trial . . . . A defendant
        without any viable defense will be highly likely to lose at trial. And a
        defendant facing such long odds will rarely be able to show prejudice
        from accepting a guilty plea that offers him a better resolution than
        would be likely after trial. But that is not because the prejudice
        inquiry in this context looks to the probability of conviction for its

2
    474 U.S. 52 (1985).
      own sake. It is instead because defendants obviously weigh their
      prospects at trial in deciding whether to accept a plea. . . .

      But common sense (not to mention our precedent) recognizes that
      there is more to consider than simply the likelihood of success at trial.
      . . . When those consequences are, from the defendant's perspective,
      similarly dire, even the smallest chance of success at trial may look
      attractive. For example, a defendant with no realistic defense to a
      charge carrying a 20-year sentence may nevertheless choose trial, if
      the prosecution's plea offer is 18 years. Here Lee alleges that
      avoiding deportation was the determinative factor for him; deportation
      after some time in prison was not meaningfully different from
      deportation after somewhat less time. He says he accordingly would
      have rejected any plea leading to deportation—even if it shaved off
      prison time—in favor of throwing a "Hail Mary" at trial.

Id. at 1966–67 (citations omitted). By focusing on Petitioner's decision-making, it
is uncontested that he "would have rejected any plea leading to deportation."
Because Petitioner's counsel provided deficient representation, we may not avoid a
finding of prejudice on the basis of the likelihood of a guilty verdict, even if
Petitioner is throwing a "Hail Mary."

Just as in Lee, we are constrained to "conclude [Petitioner] has demonstrated a
'reasonable probability that, but for [his] counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial." Lee, 137 S. Ct. at 1965
(quoting Hill, 474 U.S. at 59). The judgment of the PCR court is reversed.


REVERSED.

BEATTY, C.J., HEARN, FEW and JAMES, JJ., concur.
