State v. Nkiam, 243 N.C. App. 777 (Nov. 3, 2015)

In this appeal from a motion for appropriate relief (MAR), the court held that advice provided by the defendant’s counsel in connection with his plea did not comply with Padilla v. Kentucky, 559 U.S. 356 (2010) (incorrect advice regarding the immigration consequences of a guilty plea may constitute ineffective assistance). The defendant was a permanent resident of the United States. After he pled guilty to aiding and abetting robbery and conspiracy to commit robbery, the federal government initiated deportation proceedings against him. The defendant then filed a MAR asserting ineffective assistance of counsel. At issue was counsel’s advice regarding the immigration consequences of the defendant’s guilty plea. It was undisputed that defense counsel informed the defendant that his plea carried a “risk” of deportation. The court noted that “[t]his case is the first in which our appellate courts have been called upon to interpret and apply Padilla’s holding.” The court interpreted Padilla as holding: “when the consequence of deportation is unclear or uncertain, counsel need only advise the client of the risk of deportation, but when the consequence of deportation is truly clear, counsel must advise the client in more certain terms.” In this case, “there was no need for counsel to do anything but read the statute,” to understand that the deportation consequences for the defendant were truly clear. Thus, counsel was required, under Padilla, “’to give correct advice’ and not just advise defendant that his ‘pending criminal charges may carry a risk of adverse immigration consequences.’” The court remanded for determination of whether the defendant was prejudiced by counsel’s deficient performance.