       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             September 2017 Term

                               _____________                FILED
                                                        November 1, 2017
                                                             released at 3:00 p.m.
                                No. 16-1069              EDYTHE NASH GAISER, CLERK

                               _____________             SUPREME COURT OF APPEALS

                                                              OF WEST VIRGINIA





                       STATE OF WEST VIRGINIA,

                              Respondent


                                     V.

                            ORVILLE M. HUTTON,

                                 Petitioner


  ____________________________________________________________________

              Appeal from the Circuit Court of Harrison County

                     Honorable James A. Matish, Judge

                        Criminal Action No. 13-P-119


                      REVERSED AND REMANDED

  ____________________________________________________________________

                        Submitted: October 18, 2014

                         Filed: November 1, 2017


Wiley W. Newbold                               Patrick Morrisey
Morgantown, West Virginia                      Attorney General
Attorney for Petitioner                        Elbert Lin
                                               Solicitor General
                                               Thomas M. Johnson, Jr.
                                               Deputy Assistant Attorney General
                                               Gilbert Dickey
                                               Assistant Attorney General
                                               Zachary Viglianco
                                               Assistant Attorney General
                                               Charleston, West Virginia
                                               Attorneys for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.

CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting

opinion.


JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.

                              SYLLABUS BY THE COURT


              1.      “Under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010), the Sixth Amendment requires defense counsel to warn an immigrant

client of the deportation consequences of a guilty plea. When the deportation consequence

is succinct, clear, and explicit under the applicable law, counsel must provide correct advice

to the client. When the law is not succinct or straightforward, counsel is required only to

advise the client that the criminal charges may carry a risk of adverse immigration

consequences.” Syllabus point 4, State v. Hutton, 235 W. Va. 724, 776 S.E.2d 621 (2015).



              2.      “A claim of legal error may be brought in a petition for a writ of error

coram nobis only in extraordinary circumstances and if the petitioner shows that (1) a more

usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier;

(3) there exists a substantial adverse consequence from the conviction; and (4) the error

presents a denial of a fundamental constitutional right.” Syllabus point 5, State v. Hutton,

235 W. Va. 724, 776 S.E.2d 621 (2015).



              3.      “In the West Virginia courts, claims of ineffective assistance of counsel

are to be governed by the two-pronged test established in Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was deficient

under an objective standard of reasonableness; and (2) there is a reasonable probability that,


                                               i
but for counsel’s unprofessional errors, the result of the proceedings would have been

different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).




                                            ii

Davis, Justice:

              Petitioner, Orville M. Hutton (“Mr. Hutton”), appeals from an order of the

Circuit Court of Harrison County that denied him relief in his petition for a writ of error

coram nobis. In this appeal, Mr. Hutton contends that he satisfied the four-part test for coram

nobis relief.1 After carefully reviewing the briefs, the arguments of the parties, the legal

authority cited, and the record presented for consideration, we reverse and remand for further

proceedings consistent with this opinion.



                                                 I.


                        FACTUAL AND PROCEDURAL HISTORY


              In 2010, a Harrison County grand jury indicted Mr. Hutton for malicious

assault2 and three counts of sexual assault in the second degree.3 The victim of the crimes

was Mr. Hutton’s girlfriend, who also was the mother of their four-year-old son. In May of

2010, shortly after the indictment, Mr. Hutton entered a Kennedy plea of guilty to the felony

crime of unlawful assault, in exchange for the charges set out in the indictment being


              1
                  The test is set out infra in the Discussion Section of this opinion.
              2
              The punishment for malicious assault under the statute in effect at the time of
Mr. Hutton’s indictment was not less than two nor more than ten years imprisonment. See
W. Va. Code § 61-2-9(a) (2004) (Repl. Vol. 2010). Accord W. Va. Code § 61-2-9 (a) (2017)
(Supp. 2017).
              3
              The punishment for each sexual assault count was not less than ten nor more
than twenty-five years imprisonment. See W. Va. Code § 61-8B-4(b) (1991) (Repl. Vol.
2014).

                                                 1

dropped.4 In July of 2010, Mr. Hutton was sentenced to a term of one to five years. At some

point, Mr. Hutton was released on parole. However, his parole was revoked, and he was

required to serve the full term of his sentence.



              On May 15, 2013, a few days before Mr. Hutton was set to be released from

prison, he was notified by the Department of Homeland Security that, as a result of his felony

conviction, he would be held by the federal government under a detainer and processed for

deportation to the place of his birth, Jamaica.5 Upon being discharged from his State

sentence, on May 25, 2013, Mr. Hutton was turned over to the federal government for

deportation proceedings. During the pendency of the deportation proceedings, Mr. Hutton

filed a petition for writ of error coram nobis with the circuit court. Mr. Hutton alleged in the

petition that he received ineffective assistance of counsel because his trial counsel failed to

inform him that his guilty plea to the felony crime of unlawful assault would result in his

              4
                 Under a Kennedy plea, a defendant enters a guilty plea without admitting guilt.
See Syl. pt. 1, Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) (“An accused may
voluntarily, knowingly and understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime, if he intelligently concludes
that his interests require a guilty plea and the record supports the conclusion that a jury could
convict him.”). See also North Carolina v. Alford, 400 U.S. 25, 38, 91 S. Ct. 160, 168, 27
L. Ed. 2d 162 (1970) (“In view of the strong factual basis for the plea demonstrated by the
State and Alford’s clearly expressed desire to enter it despite his professed belief in his
innocence, we hold that the trial judge did not commit constitutional error in accepting it.”).
              5
                   Under the federal Immigration and Nationality Act, 8 U.S.C. §
1227(a)(2)(A)(iii) (2008) (2012 ed.), “[a]n alien who has been convicted of an ‘aggravated
felony’ . . . is removable from the United States.” Rodriguez-Contreras v. Sessions, No. 17­
1335, 2017 WL 4546112, at *1 (7th Cir. Oct. 12, 2017).

                                               2

being deported from the United States. By order entered April 28, 2014, the circuit court

denied relief to Mr. Hutton on the ground that the writ of error coram nobis was abolished

in West Virginia. Mr. Hutton appealed that ruling. In the appeal to this Court, we reversed

the circuit court’s order and held in Syllabus point 3 of State v. Hutton, 235 W. Va. 724, 776

S.E.2d 621 (2015) (“Hutton I”), that “[i]n West Virginia, the common law writ of error

coram nobis is available only in criminal proceedings.” The case was remanded for the

circuit court to hold a hearing on the merits of Mr. Hutton’s petition.



              On December 16, 2015, the circuit court held an evidentiary hearing on Mr.

Hutton’s petition. Testimony was taken from four witnesses at the hearing: Mr. Hutton,6

Thomas G. Dyer,7 A. Courtenay Craig,8 and Michael Blumenthal.9 At the conclusion of the

hearing, the circuit court entered an order on October 18, 2016, that denied relief to Mr.

Hutton. This appeal followed.




              6
                  Mr. Hutton testified via video conferencing.
              7
                Mr. Dyer was the attorney who represented Mr. Hutton when he entered his
plea of guilty to unlawful assault.
              8
                Mr. Craig represented Mr. Hutton for post-trial motions after he entered his
plea of guilty to unlawful assault.
              9
               Mr. Blumenthal was one of the attorneys who represented Mr. Hutton during
the appeal in Hutton I. Mr. Blumenthal testified via telephone.

                                               3

                                             II.


                               STANDARD OF REVIEW


              In this proceeding, the circuit court entered an order denying Mr. Hutton coram

nobis relief. In our consideration of that order, we apply the following standard of review:

              We review the final order and the ultimate disposition under an
              abuse of discretion standard, and we review the circuit court’s
              underlying factual findings under a clearly erroneous standard.
              Questions of law are subject to a de novo review.

Syl. pt. 2, in part, Walker v. West Virginia Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167

(1997). Accord State v. Murray, 235 W. Va. 312, 319, 773 S.E.2d 656, 663 (2015).



                                            III.


                                      DISCUSSION


              In order to understand the posture of the issues presented in this appeal, a

review of a few legal principles set out in our opinion in Hutton I is required. To begin, in

the decision in Hutton I we recognized that the opinion by the United States Supreme Court

in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), required

attorneys to advise immigrant criminal defendants of the deportation consequences of a guilty

plea. We addressed the issue in Syllabus point 4 of Hutton I as follows:

                     Under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.
              1473, 176 L. Ed. 2d 284 (2010), the Sixth Amendment requires
              defense counsel to warn an immigrant client of the deportation
              consequences of a guilty plea. When the deportation
              consequence is succinct, clear, and explicit under the applicable

                                             4

              law, counsel must provide correct advice to the client. When the
              law is not succinct or straightforward, counsel is required only
              to advise the client that the criminal charges may carry a risk of
              adverse immigration consequences.

235 W. Va. 724, 776 S.E.2d 621. In order to obtain relief for a Padilla violation a defendant

must show prejudice. See Padilla, 559 U.S. at 374, 130 S. Ct. at 1487, 176 L. Ed. 2d. 284

(“Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice

as a result thereof, a question we do not reach because it was not passed on below.”). In light

of Padilla, we adopted a test in Hutton I for a determination of whether a defendant in a

coram nobis proceeding may have a plea set aside as a result of a Padilla violation. The test

was set out in syllabus point 5 of Hutton I as follows:

                      A claim of legal error may be brought in a petition for a
              writ of error coram nobis only in extraordinary circumstances
              and if the petitioner shows that (1) a more usual remedy is not
              available; (2) valid reasons exist for not attacking the conviction
              earlier; (3) there exists a substantial adverse consequence from
              the conviction; and (4) the error presents a denial of a
              fundamental constitutional right.

It has been recognized that “[f]ailure to establish any of the above elements will defeat a

petition for coram nobis relief.” Borelli v. United States, No. 17-2814 (JLL), 2017 WL

4074027, at *2 (D.N.J. Sept. 14, 2017).



              We remanded the case in Hutton I so that the circuit court could afford Mr.

Hutton an opportunity to present evidence on each of the four elements of the above test. At

the conclusion of the hearing on the matter, the circuit court denied relief after determining

                                              5

that Mr. Hutton’s evidence satisfied only the third element of the four-part test.10 In this

appeal, the State has conceded that Mr. Hutton also satisfied the first element of the test.11

See Bereano v. United States, 706 F.3d 568, 576 (4th Cir. 2013) (“The Government does not

contest the proposition that Bereano has satisfied the first three of the foregoing prerequisites

for coram nobis relief.”); United States v. Verrusio, No. 09-cr-00064 (BAH), 2017 WL

1437055, at *8 (D.D.C. Apr. 21, 2017) (“The government also does not quarrel with the

defendant’s claim that the first and second factors have been met. Instead, the government

argues that the defendant cannot satisfy the third or the fourth factor.”). As a general rule,

we are not obligated to accept the State’s concession of error by the circuit court on an issue.

See Syl. pt. 8, in part, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991) (“This Court is

not obligated to accept the State’s confession of error in a criminal case.”). However, the

record shows quite clearly that Mr. Hutton established the first element of the test by showing

that a more usual remedy was not available. Consequently, we summarily reject the circuit

court’s finding on this issue.12 We will confine our analysis to the second and fourth


              10
                The circuit court’s order concluded that “[a]dverse consequences may
presently exist for [Mr. Hutton] as a result of his deportation[.]”
              11
                   The State indirectly conceded the issue by failing to brief the matter.
              12
                The circuit court determined that Mr. Hutton had a federal remedy through
an appeal of the deportation order. The record does not support such a finding. The State’s
brief correctly pointed out that “[t]o the extent Mr. Hutton seeks to have his conviction
vacated and not merely to avoid the deportation consequences of his conviction, his federal
appeal does not provide a more usual remedy.” See Drakes v. I.N.S., 330 F.3d 600, 603 (3d
Cir. 2003) (holding “that a petitioner could not challenge [in federal court] his underlying
                                                                               (continued...)

                                                 6

elements of the Hutton I test: valid reasons exist for not attacking the conviction earlier and

the error presents a denial of a fundamental constitutional right. We will address each issue

separately.



              A. A Valid Reason Exists for Not Attacking the Conviction Earlier

                Mr. Hutton argues that the circuit court erred in finding that no valid reason

existed for his failure to challenge the unlawful assault conviction earlier in a habeas corpus

proceeding. In this appeal, the State also has argued that “Mr. Hutton failed to exercise

reasonable diligence in asserting his claim.”



                As previously mentioned, the decision in Hutton I required Mr. Hutton show

that a valid reason existed for not attacking his conviction earlier. The opinion in Colon v.

United States, No: 1:12-cr-204 (JCC), 2016 WL 7210350 (E.D. Va. Dec. 12, 2016) illustrates

the meaning of attacking a conviction earlier. The defendant in Colon was an immigrant who

pled guilty to a drug charge in federal court. After the defendant served her prison sentence,

she was turned over to immigration officials for deportation. The defendant thereafter filed

a petition for a writ of coram nobis on the grounds that her counsel failed to inform her of



                12
                (...continued)
[state] conviction even though it was the basis for the BIA’s order of deportation.”). In fact,
the record shows that Mr. Hutton’s appeal of the deportation order has been stayed pending
the outcome of this proceeding.

                                                7

the deportation consequences of the guilty plea. The district court rejected the petition. In

doing so, the court addressed the issue of attacking the conviction timely as follows:

                      In its opposition, the Government concedes that Colon’s
              plea agreement, as well as the plea hearing, did not include a
              discussion of immigration consequences that might result from
              Colon’s guilty plea. . . . The Government argues, however, that
              at least by the time Colon was sentenced – on August 24, 2012
              – she had been informed that her conviction would result in a
              deportation review. . . . In fact, the Judgment entered on that
              date included the special conditions that Colon be surrendered
              to ICE for deportation review and that, if deported, Colon
              remain outside the United States. . . . Precisely due to this
              evidence of Colon’s knowledge of the risk of deportation, the
              Government claims that she has provided no justification for
              waiting to attack her conviction in the intervening three years
              and seven months. . . .

                      Colon’s reply to the Government’s opposition argues that
              she was unable to attack her conviction earlier because she was
              unaware that her conviction would result in “an automatic
              mandatory deportation.” . . . . She asserts that she first realized
              that she would be deported on December 16, 2015. . . . Before
              that time, she thought that the language in her special conditions
              meant only that “[deportation] may or may not happen.” . . . In
              other words, Colon appears to be claiming that she had no
              reason to attack her conviction before April 2016.

                      Unfortunately, Colon’s relative uncertainty about the
              possibility of deportation, and her possible hope that she would
              not be deported at all, do not provide a legitimate justification
              for her delay. Colon has failed to establish a valid reason for not
              attacking her conviction earlier. Thus, the Court will deny her
              motion.

Colon, 2016 WL 7210350, at *2. See also Eastwood v. United States, No. 3-16-cv-00536­

JAG, 2017 WL 462635, at *3 (E.D. Va. February 3, 2017) (“She claims that she could not


                                              8

bring this attack earlier because she ‘was unaware of the near-mandatory effect of her plea

until deportation proceedings were initiated against her.’ This completely ignores the fact

that the presiding judge at sentencing required Eastwood to surrender to immigration officials

after she completed her term of imprisonment. Thus, no valid reason exists why Eastwood

did not challenge her conviction earlier, rendering relief through writ of error coram nobis

unavailable.”); Kokoski v. United States, No. 5:12-2150, 2013 WL 1337408, at *7

(S.D.W. Va. Mar. 29, 2013) (“While the test above does not present a set time limit for filing

coram nobis petitions . . . , it would be unfair to allow Petitioner to seek coram nobis relief

at this time when such relief could have been pursued years ago.”).



              The decision in United States v. Akinsade, 686 F.3d 248 (4th Cir. 2012),

illustrates a timely attack of a conviction.13 The defendant in Akinsade was born in Nigeria

and came to the United States in 1988, at the age of seven. In 2000, the federal government

charged the defendant with embezzlement from a bank. During plea bargaining negotiations,

the defendant’s attorney informed him twice that he could not be deported based on a single

offense. The defendant was told that he could be deported only if he had two felony

convictions. Relying on this legal advice, the defendant pled guilty. Prior to accepting the

plea, the district judge warned the defendant that if he was not a citizen he could be deported.



              13
                   The decision in United States v. Akinsade is more fully discussed in Hutton
I.

                                                9

After accepting the plea, the district court sentenced the defendant to one month of

imprisonment, and a three-year term of supervised release. Approximately nine years after

the defendant was convicted and sentenced, he was arrested by immigration authorities and

charged with deportation as an aggravated felon based upon the embezzlement conviction.

The defendant filed a coram nobis petition in federal court, alleging a violation of his Sixth

Amendment right to effective assistance of counsel because of the wrong advice given to him

by his trial counsel. The district court rejected the argument on the ground that the defendant

was not prejudiced, because the trial judge had warned him of the potential for deportation

during the plea hearing. The Fourth Circuit disagreed and vacated the defendant’s plea. In

doing so, the opinion addressed the timeliness of the coram nobis attack on the conviction

as follows:

              Second, valid reasons exist for Akinsade not attacking the
              conviction earlier. Until physically detained by immigration
              authorities in 2009, Akinsade had no reason to challenge the
              conviction as his attorney’s advice, up to that point in time,
              appeared accurate. . . .

                     ....

                     . . . [T]he district court warned that Akinsade’s plea could
              lead to deportation. 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.

Akinsade, 686 F.3d at 252-54.

                                              10

              The decisions in Colon and Akinsade help illustrate that attacking a conviction

for a Padilla violation is not foreclosed because of a failure to timely attack a conviction on

some other basis. That is, for purposes of asserting a Padilla claim in a coram nobis

proceeding, the issue of timely attacking the conviction is limited to showing a timely

assertion of the Padilla immigration violation.



              In the instant proceeding, the State contends that Mr. Hutton could have

attacked his conviction in a habeas corpus proceeding long before he filed the Padilla coram

nobis petition.14 The State relies upon evidence presented below that Mr. Hutton’s attorney

for post-trial motions, A. Courtenay Craig, had advised him that he may have had a claim for

ineffective assistance of counsel against his trial lawyer. The State’s reliance on a habeas

attack is meritless because of the reason given by Mr. Craig when he informed Mr. Hutton

of the potential for an ineffective assistance of counsel claim. Mr. Craig testified that he

believed Mr. Hutton’s trial counsel did not adequately prepare for trial and that, as a result

of this inadequacy, he might have a claim for ineffective assistance of counsel. Mr. Craig

testified to this issue during direct examination by counsel for Mr. Hutton:

              Q. –you didn’t realize he had immigration consequences
              through IRAIRA, and you didn’t realize he had a defense and a
              claim of ineffective assistance of counsel based on Padilla, do
              you feel that you were, in fact, ineffective by failing to bring that
              to his attention at that point?


              14
                   The circuit court also made this determination.

                                               11

              A. Okay. I can say this, at the time that I became aware of
              Padilla and this terminated, he’d already pled. It doesn’t change
              his situation one way or another because I told him I think you
              have an ineffective assistance of counsel claim, but we need to
              hold on to that because-­

              Q. And that was based on the failure to properly prepare for
              trial, that wasn’t even based on Padilla was it?

              A. Right, exactly. I had that discussion with him about a habeas
              corpus down the way, but also discussed at length I was doing
              it the way I was doing it, because that’s what I–

              ....

              Q. But the fact that you didn’t know the consequences, you
              didn’t know that Padilla existed, and you didn’t tell him that he
              had that ineffective assistance claim based on Padilla, do you
              now, in retrospect, look at that and say, well, that was probably
              ineffective assistance?

              A. If you put it like that, I guess so.



              It is clear from the above testimony that Mr. Craig did not inform Mr. Hutton

that he had a habeas claim based upon a Padilla violation. In fact, Mr. Craig did not know

about Padilla when he represented Mr. Hutton. The fact that Mr. Hutton was informed that

he may have had an ineffective assistance of counsel claim based on his trial attorney’s

failure to adequately prepare for trial is irrelevant for purposes of timely asserting a Padilla

claim. As illustrated in Colon and Akinsade, the point at which a defendant has knowledge

of a Padilla claim determines whether the related attack of a conviction was timely made.

In this case, the record shows that Mr. Hutton learned that he would be deported when he

                                              12

was served with a deportation warrant on May 23, 2013. Mr. Hutton testified below that it

was after he was served with deportation papers that he first learned about a Padilla claim.

Mr. Hutton indicated that he learned of a Padilla claim from another inmate who also was

facing deportation. Thereafter, on September 4, 2013, Mr. Hutton filed this petition for a

writ of coram nobis asserting a Padilla violation. Under these facts, it is clear that a valid

reason existed for Mr. Hutton’s failure to attack his conviction for a Padilla violation prior

to 2013, i.e., he was never aware of his rights under Padilla until an inmate told him in 2013.

Consequently, we find the circuit court erred in finding Mr. Hutton did not have a valid

reason for failing to assert his Padilla claim earlier.



        B. The Error Presents a Denial of a Fundamental Constitutional Right

              Under the fourth element of the Hutton I test, we must determine whether the

failure of Mr. Hutton’s trial counsel to inform him of the deportation consequences of his

guilty plea denied him a fundamental constitutional right. Mr. Hutton argues that his Sixth

Amendment right to effective assistance of counsel was violated as a result of his trial

counsel’s failure to inform him that he would be deported if he pled guilty to the felony

offense of unlawful assault. The State argues, and the circuit court concluded, that no Sixth

Amendment violation occurred. We disagree.




                                              13

              In determining whether a criminal defendant received ineffective assistance of

counsel, we apply the following test:

                      In the West Virginia courts, claims of ineffective
              assistance of counsel are to be governed by the two-pronged test
              established in Strickland v. Washington, 466 U.S. 668, 104
              S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance
              was deficient under an objective standard of reasonableness; and
              (2) there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceedings would have
              been different.

Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).



              The first prong of the Strickland test, deficient performance, can be disposed

of summarily. As we have previously mentioned, under Padilla the Sixth Amendment

requires defense counsel to warn an immigrant client of the deportation consequences of a

guilty plea. The State asserts, and the circuit court so found, that defense counsel made “a

reasonable investigation of Mr Hutton’s immigration status and reasonably concluded that

he should not worry about Mr. Hutton’s immigration status.” The record does not support

this conclusion. The vague and inconsistent testimony of defense counsel reveals that he

made no immigration investigation. See Lindsay C. Nash, Considering the Scope of Advisal

Duties Under Padilla, 33 Cardozo L. Rev. 549, 576 (2011) (“[D]efense attorneys must

investigate and research the law using available resources and then advise noncitizen

defendants about immigration consequences at the level of specificity that research

permits.”). Assuming, for the sake of argument, that such an investigation was made, Padilla

                                            14

required defense counsel to inform Mr. Hutton that, if he was an immigrant, his guilty plea

would subject him to deportation. This was not done.15 Consequently, Mr. Hutton’s trial

counsel’s performance was deficient. See United States v. Swaby, 855 F.3d 233, 240 (4th

Cir. 2017) (“Counsel’s failure to advise a client about ‘succinct, clear, and explicit’

immigration consequences for a conviction is constitutionally deficient performance under

the Sixth Amendment.”); Commonwealth v. Lavrinenko, 38 N.E.3d 278, 290 (Mass. 2015)

(“[T]he failure of a criminal defense attorney to make a reasonable inquiry of the client

regarding his or her citizenship and immigration status is sufficient to satisfy the deficient

performance prong of the ineffective assistance analysis.”); State v. Favela, 343 P.3d 178,

182 (N.M. 2015) (“A defense attorney’s failure to advise a client of the specific immigration

consequences of pleading guilty, including whether deportation would be virtually certain[,]

renders that attorney’s performance deficient, which satisfies the first prong of the Strickland

test.”).



              Under the second prong of the Strickland test, Mr. Hutton has to show that he

was prejudiced by his trial counsel’s deficient performance. That is, “in order to satisfy the



              15
                During the examination of trial counsel at the hearing he stated the following:
“But, you know, there were no–I didn’t–in fairness to Mr. Hutton, when it came to this plea
I didn’t sit down and say, listen, let’s make sure this is not going to have an effect on your
citizenship or immigration status. I did not do that.” See Diaz v. State, 896 N.W.2d 723, 732
(Iowa 2017) (“Certainly, any person contemplating a plea of guilty to a crime that could lead
to deportation would want to know the full meaning and consequences of deportation.”).

                                              15

‘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, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985).

Under the prejudice prong of Strickland, “[t]he potential strength of the state’s case must

inform our analysis, inasmuch as a reasonable defendant would surely take it into account.”

Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995), overruled on other grounds by, O’Dell

v Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). However, Padilla does not require a

showing that Mr. Hutton would have prevailed if the case went to trial. Padilla made clear

that, “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.”

Padilla, 559 U.S. at 372, 130 S. Ct. at 1485. This issue was succinctly articulated in Swaby,

855 F.3d at 243-44:

              [T]he prejudice prong does not require a defendant to show that
              going to trial would have been the best objective strategy or
              even an attractive option. It merely requires the defendant to
              show a reasonable likelihood that a person in the defendant’s
              shoes would have chosen to go to trial. The decision does not
              need to be optimal and does not need to ensure acquittal; it only
              needs to be rational.



              The decision in Akinsade, supra, helps illustrate a showing of prejudice. As

previously noted, the defendant in Akinsade pled guilty to a charge of embezzlement. This

conviction was a deportable offense because the amount of money involved exceeded


                                             16

$10,000. In evaluating the defendant’s claim of prejudice due to a Padilla violation, the

Fourth Circuit ruled as follows:

               Akinsade pleaded guilty to a deportable offense that involve[d]
               fraud or deceit in which the loss to the victim or victims
               exceed[ed] $10,000. . . . Before the district court, Akinsade’s
               counsel asserted that if Akinsade had gone to trial, he would
               have argued that the amount of loss was $8,000. His counsel
               noted that Akinsade was ordered to pay restitution in the amount
               of $8,000, which he had paid in full, and further that Akinsade
               would have disputed his involvement with a third check that
               placed him over the $10,000 amount. Consequently, the choice
               to go to trial is rational and we cannot conclude that a
               reasonable defendant in [Akinsade’s] shoes, having asked for,
               received, and relied upon encouraging advice’ about the risks of
               deportation, would have pled guilty anyway had he known that
               his attorney was mistaken. . . . Thus, we find that counsel’s
               affirmative misrepresentations that the crime at issue was
               non-deportable prejudiced Akinsade. Akinsade has met his
               burden under prong two of Strickland. In doing so, he has also
               demonstrated that he has suffered a fundamental error
               necessitating coram nobis relief. . . .

Akinsade, 686 F.3d at 256 (internal quotations and citations omitted). What is clear from the

discussion in Akinsade is that a focus on the strength of the government’s case is not

controlling.



               In the instant proceeding, the State argues that it had a strong case against Mr.

Sutton for all four charges: malicious assault and three counts of sexual assault in the second

degree. The State’s evidence included testimony by the victim alleging that Mr. Hutton beat

her and that several days after the beating he sexually assaulted her. The State also was


                                              17

prepared to introduce medical records to corroborate the beating, as well as testimony by

persons who allegedly saw the victim after the physical assault. Further, the State alleged

that it had a statement made by Mr. Hutton admitting to some of the allegations of beating

the victim.



               Mr. Hutton presented testimony that he would have gone to trial if he had

known that his guilty plea would result in his deportation. Mr. Hutton contended that he

would challenge the severity of the physical assault, because the medical records showed

only “injuries that are in all cases self-reported pain with no visible injuries[.]” There also

was evidence below that Mr. Hutton was prepared to introduce “impeachment evidence

regarding telephone calls from the alleged victim’s phone, and admissions under oath by the

alleged victim of meretricious sex with [him].” The record in this case also indicated that

Mr. Hutton entered a Kennedy plea of guilty, wherein he protested that he was actually

innocent. The evidence also shows that Mr. Hutton was born in Jamaica, in 1962, and was

brought to the United States at about the age of nine years old. He has never returned to

Jamaica since immigrating to this country as a child. Mr. Hutton’s immediate family,

including his son,16 mother, and siblings live in the United States.17 We believe that under


               16
                    As previously indicated, the mother of Mr. Hutton’s son is the alleged victim
in the case.
               17
               The record indicates that Mr. Hutton’s father immigrated to the United States,
but died in 2004.

                                                 18

the facts of this case, if Mr. Hutton’s trial counsel had informed him that he would be

deported if he pled guilty, a rejection of the plea bargain would have been rational under the

circumstances. See Diaz v. State, 896 N.W.2d 723, 734 (Iowa 2017) (“We conclude Morales

Diaz would not have accepted this plea agreement if he had been provided the effective

assistance of counsel to which he was entitled under the Sixth Amendment to the U.S.

Constitution.”); Matter of Petition of Isidro-Soto, No. 46673-2-II, 2017 WL 1907740, at 5*

(Wash. Ct. App. May 9, 2017) (“While Isidro–Soto would have faced a longer sentence had

he lost at trial, deportation is also a particularly severe penalty. Consequently, it would have

been rational for Isidro–Soto to take his chances at trial. Accordingly, Isidro–Soto shows

that there is a reasonable probability that, but for defense counsel’s failure to advise, he

would not have pleaded guilty and would have insisted on going to trial.”).



              Our conclusion in this matter is supported by the recent decision of the United

States Supreme Court in Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958, 198 L. Ed. 2d

476 (2017). The defendant in Lee was arrested in 2009 by the federal government and

charged with possession of drugs with intent to sell. The defendant eventually pled guilty

to the charge with the understanding that he would receive a lighter sentence by avoiding a

jury trial. Prior to entering the plea, the defendant was assured by his attorney that he would




                                              19

not face deportation proceedings by pleading guilty.18 Subsequent to being sentenced, the

defendant learned that he would be deported as a result of his conviction. The defendant

thereafter filed a motion to set aside the plea on the ground of ineffective assistance of

counsel. The district court found that trial counsel’s performance was deficient under

Strickland, but that because the government’s case was strong, the defendant failed to satisfy

the prejudice prong of Strickland. The court of appeals agreed with the decision of the

district court. The Supreme Court granted certiorari and reversed. The Supreme Court found

in Lee that the defendant satisfied the prejudice prong of Strickland as follows:

              Here Lee knew, correctly, that his prospects of acquittal at trial
              were grim, and his attorney’s error had nothing to do with that.
              The error was instead one that affected Lee’s understanding of
              the consequences of pleading guilty. . . .

                     Lee . . . argues he can establish prejudice . . . 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.

                     ....



              18
                 The defendant was born in South Korea and was brought to this country by
his parents at the age of thirteen, in 1982.

                                              20

        But common sense (not to mention our precedent)
recognizes that there is more to consider than simply the
likelihood of success at trial. The decision whether to plead
guilty also involves assessing the respective consequences of a
conviction after trial and by plea. . . . When those consequences
are, from the defendant’s perspective, similarly dire, even the
smallest chance of success at trial may look attractive. . . . 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.

       ....

       There is no reason to doubt the paramount importance
Lee placed on avoiding deportation. Deportation is always a
particularly severe penalty, . . . and we have recognized that
preserving the client’s right to remain in the United States may
be more important to the client than any potential jail
sentence. . . . At the time of his plea, Lee had lived in the
United States for nearly three decades, had established two
businesses in Tennessee, and was the only family member in the
United States who could care for his elderly parents—both
naturalized American citizens. In contrast to these strong
connections to the United States, there is no indication that he
had any ties to South Korea; he had never returned there since
leaving as a child.

       ....

       Lee’s claim that he would not have accepted a plea had
he known it would lead to deportation is backed by substantial
and uncontroverted evidence. Accordingly we conclude Lee 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. . . .



                                21

Lee, 137 S. Ct. at 1965-69 (internal quotations, citations, and footnotes omitted). See also

Tzen v. United States, No. 16-0734-DRH, 2017 WL 4233077, at *4 (S.D. Ill. Sept. 22, 2017)

(“Based on the record and the circumstances of this case, the Court finds that Tzen did not

make a rational decision to plead guilty and that counsels were ineffective pursuant to Lee

and the Sixth Amendment.”).



                In light of the evidence in the instant case and the guidance of Lee, we reverse

the circuit court’s order and grant Mr. Hutton coram nobis relief. On remand Mr. Hutton will

be allowed to withdraw his guilty plea and stand trial for the offenses for which he was

indicted. See Grooms v. United States, No. 3:09-1174-CMC, 2013 WL 5771180, at *4

(D.S.C. Oct. 23, 2013) (“where the plea was accepted due to ineffective assistance of

counsel, the proper remedy is to vacate the conviction (that is, allow petitioner to withdraw

his plea).”).




                                               22

                                              IV.


                                      CONCLUSION




              For the foregoing reasons, the circuit court’s order denying Mr. Hutton coram

nobis relief is reversed, and this case is remanded for further proceedings consistent with this

opinion.



                                                                    Reversed and Remanded.




                                              23

