State v. Marzouq

268 N.C.App. 616

836 S.E.2d 893

STATE of North Carolina

v.Ali Awni Said MARZOUQ, Defendant.

No. COA19-471

Court of Appeals of North Carolina.

Filed: December 3, 2019

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

Tin Fulton Walker & Owen, PLLC, by Jim Melo, Esq., for defendant-appellant.

North Carolina Advocates for Justice, by Helen L. Parsonage, and North Carolina Justice Center, by Raul A. Pinto, amici curiae.

YOUNG, Judge.

Where defendant's guilty plea presumptively subjected him to deportation, trial counsel's advice that defendant "may" be deported constituted ineffective assistance of counsel. However, where the record does not affirmatively show whether the trial court considered defendant's prior convictions to determine prejudice, we must remand for further findings. We affirm in part, but remand in part.

I. Factual and Procedural Background

On 3 August 2015, Ali Awni Said Marzouq (defendant) was indicted by the Nash County Grand Jury for possession with intent to sell and deliver heroin, and possession of a Schedule II controlled substance. At some point he was also charged with maintaining a vehicle or dwelling place for the keeping or selling of controlled substances. Defendant pleaded guilty to the charges of possession of heroin and maintaining a vehicle or dwelling place, and the trial court entered judgment, namely a two-year suspended sentence. On the transcript of plea, next to Question 8, which asks whether the defendant understands that a guilty plea may result in deportation, defendant wrote "Permanent resident."

On 12 July 2018, defendant filed a motion for appropriate relief (MAR), seeking to withdraw his guilty plea. Defendant, an immigrant, alleged that roughly one year into his two-year suspended sentence, he was seized by Immigration and Customs Enforcement and placed into detention and removal proceedings. He argued that, had he known the plea would impact his immigration status and result in deportation, he would not have taken it. On 10 September 2018, the trial court entered an order, finding that defendant's indication of "Permanent resident" in response to Question 8 on the transcript of plea indicated an affirmative response. The court therefore denied defendant's MAR.

On 8 November 2018, this Court granted certiorari. In an order, this Court required the trial court to review "whether petitioner's Alford plea was induced by misadvice of counsel regarding the immigration consequences of the plea and whether any misadvice resulted in prejudice to petitioner." The matter was remanded to the trial court for review, and on 28 December 2018, the trial court entered another order. The court found that defendant had been advised that if he pleaded guilty, he might be deported; that defendant had further been advised to speak to an immigration attorney; that defendant asserted to the trial court that he was a citizen, not a permanent resident, of the United States; and that this assertion "precluded any further inquiry into his immigration status and thwarted both the Court and the State's ability to cure any misadvice the defendant may have received." The court therefore found that counsel's advice did not constitute ineffective assistance of counsel, and that defendant failed to show prejudice. The trial court once more denied defendant's MAR.

On 11 March 2019, this Court granted certiorari to review the trial court's 28 December 2018 order denying defendant's MAR.

II. Standard of Review

"When considering rulings on motions for appropriate relief, we review the trial court's order to determine ‘whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.’ " State v. Frogge , 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens , 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982) ). "When a trial court's findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. However, the trial court's conclusions are fully reviewable on appeal." State v. Wilkins , 131 N.C. App. 220, 223, 506 S.E.2d 274, 276 (1998) (citations omitted).

III. Ineffective Assistance of Counsel

In his first argument, defendant contends that the trial court erred in finding that defense counsel's conduct was not ineffective assistance of counsel. We agree.

In his MAR, defendant alleged that counsel informed him that his plea "may affect his immigration status or ... that it would not affect his immigration status in any manner." Defendant attached to his MAR three affidavits. In one, his own, defendant averred that his attorney "specifically told me not to worry about Immigration." In another, his fiancée Shannon Pitt averred that defense counsel "said that [defendant] would not have anything to worry about with his immigration status." Defendant, citing the case of Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed. 2d 284 (2010), noted that counsel is "constitutionally ineffective if he fails to advise – or misadvises – his client about the immigration consequences of a guilty plea." Defendant therefore argued in his MAR, and argues now on appeal, that he received ineffective assistance of counsel as a result of his attorney's misadvice.

This Court has held that " Padilla mandates that when the consequence of deportation is truly clear, it is not sufficient for the attorney to advise the client only that there is a risk of deportation." State v. Nkiam , 243 N.C. App. 777, 786, 778 S.E.2d 863, 869 (2015). In the instant case, defendant's plea concerned possession of heroin and maintaining a dwelling place, two drug-related offenses. Federal law requires an alien or permanent resident to be deported who "has been convicted of a violation of (or a conspiracy or attempt to violate) 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[.]" 8 U.S.C. § 1227(a)(2)(B)(i). This statute provides an explicit mandate – such an alien "shall" be removed if he or she falls within this or other categories.

We hold that where federal statute mandates removal, there is a presumption that deportation will happen. As such, pursuant to Padilla and Nkiam , it is not sufficient for counsel to suggest that deportation "may" happen or is possible. It is incumbent upon counsel, in a situation like this where deportation is presumed where a defendant pleads or is found guilty, to specify that deportation is probable, or presumptive. Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.

In the instant case, the evidence is somewhat inconsistent. Defendant contends that counsel did not inform him whatsoever of the consequences of his plea, while counsel avers that he informed him there may be consequences. At most, however, the evidence would permit the trial court to find that counsel only offered the possibility of deportation – "may" language, instead of "presumptive" language. As we have held, such language is insufficient when a defendant is facing presumptive deportation. Accordingly, we hold that defendant received ineffective assistance of counsel, and the trial court erred in finding otherwise.

We note, however, that a showing of ineffective assistance of counsel is insufficient to grant defendant the relief he seeks; he must also show prejudice. For this reason, we continue to examine defendant's arguments.

IV. Prejudice

In his second argument, defendant contends that the trial court erred in finding that defendant was not prejudiced by defense counsel's conduct. We disagree. Defendant argues that the decision to reject the plea bargain and go to trial would have been a rational one, had he known of the immigration consequences of his decision. As a result, he contends that this guilty plea subjected him to prejudice, namely deportation, where he otherwise might not have been subject.

"Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allen , 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations and quotation marks omitted).

The State, in its brief, cites to numerous federal cases which suggest that a defendant who is facing deportation on other grounds cannot show prejudice. See e.g. United States v. Batamula , 823 F.3d 237, 242 (5th Cir. 2016) (holding that, where a defendant was "already deportable for having overstayed his visa[,]" he "failed to show prejudice"). We agree with the State, in principle. A showing of prejudice requires a showing that, absent the allegedly erroneous action, a different outcome would have resulted. If a defendant was facing deportation for a separate charge, then regardless of whether he pleaded or went to trial on the instant charge, deportation would still result. As such, we hold that a defendant already facing deportation could not show prejudice, notwithstanding the otherwise ineffective assistance of trial counsel.

The problem that confronts us, however, is the insufficiency of the record. The State notes that "the Department of Homeland Security has taken the position that Defendant is subject to removal on the basis of two convictions: (1) his 30 June 2016 conviction for possession of drug paraphernalia, and (2) his 2 March 2017 conviction for possession of heroin." Moreover, defendant's trial counsel acknowledged his prior conviction for possession of drug paraphernalia. However, it is not...