Nero Cooke v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NERO COOKE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-3497

[September 16, 2015]

Appeal of order denying rule 3.850 motion from the Circuit Court for

the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes,

Judge; L.T. Case No. 2010CF005839AXX.

Antonio Bugge, Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina

Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for

appellee.

GERBER, J.

The defendant appeals from the circuit court’s order denying, without

an evidentiary hearing, his Florida Rule of Criminal Procedure 3.850

motion for postconviction relief alleging ineffective assistance of counsel

for failing to advise him of his guilty plea’s deportation consequences.

The court denied the motion without an evidentiary hearing on two

grounds: (1) the motion was facially insufficient; and (2) the motion and

record conclusively demonstrated that the defendant was not entitled to

relief. We conclude the court erred on both grounds. We also conclude

the court’s warning during the plea colloquy, that the plea “probably”

would result in the defendant’s deportation, did not necessarily remove

any prejudice caused by counsel’s alleged ineffective assistance, where

the plea’s deportation consequences, at least on the face of the

defendant’s motion, may have been “truly clear” at the time of the plea.

Thus, we reverse the denial of the defendant’s 3.850 motion, and remand

for an evidentiary hearing on the motion.

We present this opinion in four parts: (1) the parties’ arguments to

the circuit court; (2) the circuit court’s reasoning; (3) the parties’

arguments to this court; and (4) our reasoning. Part 4 will contain three

sub-parts explaining: (a) why the defendant’s motion was facially

sufficient; (b) why the motion and record did not demonstrate the

defendant was not entitled to relief; and (c) why the court’s warning

during the plea colloquy, that the plea “probably” would result in the

defendant’s deportation, did not necessarily remove any prejudice caused

by counsel’s alleged ineffective assistance, where the plea’s deportation

consequences, at least on the face of the defendant’s motion, may have

been “truly clear” at the time of the plea.

1. The Parties’ Arguments to the Circuit Court

On November 10, 2011, the defendant pled guilty to carrying a

concealed firearm committed on May 19, 2010. On a plea form, he

placed his initials next to the following sentence: “I understand that if I

am not a United States Citizen, my plea may subject me to deportation

pursuant to the laws and regulations governing the United States . . .

and, this Court has no jurisdiction (authority) in such matters.”

(emphasis added).

During the plea colloquy, the court warned the defendant: “[I]f you’re

not a citizen, by pleading guilty today, that would negatively affect your

immigration status, probably resulting in deportation and not being

allowed back in to the country. Do you understand that?” (emphasis

added). The defendant responded: “Yes, sir.” The court adjudicated the

defendant guilty and sentenced him to prison.

The defendant then filed his rule 3.850 motion seeking to vacate his

plea, judgment, and sentence. The motion also incorporated supporting

affidavits from the defendant and an immigration attorney. The motion

alleged, in pertinent part:

3. At the time [the defendant] pled guilty to the charge, he

was not a citizen of the United States . . . .

4. [The defendant] was never warned by his attorney that

there would be mandatory consequences as a result of his

plea. See Affidavit of [Defendant].

5. By entering the instant plea [the defendant] became

mandatorily deportable from the United States. If [the

defendant] did not have the instant conviction he would not

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be deportable from the United States. See Immigration and

Nationality Act (INA); Affidavit of Attorney . . . .

6. Pursuant to US Immigration law any non-citizen

convicted of a firearm offense is deportable from the United

States. See Immigration and Nationality Act at Section

237(a)(2)(C); Affidavit of Attorney . . . .

7. Had [the defendant] been warned by his attorney of the

certain immigration consequences of his plea he would not

have entered a plea in the instant case and instead would

have chosen to proceed to trial. See Affidavit of [Defendant].

The defendant’s affidavit alleged:

1. I am a citizen of [another country who] entered the United

States on June 8, 2007, as a lawful permanent resident.

2. On December 1, 2011, I was placed into removal

proceedings by the Department of Homeland Security (DHS).

3. I am deportable from the United States only because of

my conviction in the instant case.

4. If I had known that by entering my plea in this case I

would become subject to mandatory deportation I never

would have entered it.

5. I was never advised by my criminal defense attorney of

the immigration consequences of my plea.

The immigration attorney’s affidavit alleged, in pertinent part:

3. [The defendant] became deportable from the Unites States

under section 237(a)(2)(C) of the Immigration and Nationality

Act (INA) on November 10, 2011 as an alien convicted any

time after admission of a violation of any law of purchasing,

selling, offering for sale, exchanging, using, owning,

possessing, or carrying, or of attempting or conspiring to

purchase, sell, offer for sale, exchange, use, own, possess, or

carry, any weapon, part, or accessory, which is a firearm or

destructive devise [sic] (as defined in section 921(a) of Title

18) in violation of any law.

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4. The moment [the defendant] entered his guilty plea he

became mandatorily deportable from the United States.

5. Given the fact that this is [the defendant’s] only criminal

conviction and he is a lawful permanent resident of the

United States if he did not have the instant conviction he

would not be deportable from the United States.

Based on the allegations, the motion argued that the defendant

received ineffective assistance of counsel. More specifically, the

defendant argued that counsel must advise when a plea renders the

defendant deportable, and that both misadvice and lack of advice in this

regard constitutes ineffective assistance of counsel. The defendant also

argued that a court’s equivocal deportation warning does not cure the

prejudice which counsel’s misadvice or lack of advice causes.

The state’s response, citing Cano v. State, 112 So. 3d 646, 648 (Fla.

4th DCA 2013), argued: “Where movant has received the standard ‘may’

or ‘could’ deportation warning required by [Florida Rule of Criminal

Procedure] 3.172(c)(8), to state a claim for relief under Padilla [v.

Kentucky, 559 U.S. 356 (2010)], a movant must establish the following”:

(1) the movant was in the United States lawfully at the time

of the plea;

(2) the plea is the sole basis for the movant’s deportation;

(3) the law, as it existed at the time of the plea, subjected

the movant to “virtually automatic” deportation;

(4) the “presumptively mandatory” consequence of

deportation is clear from the immigration statute’s face;

(5) counsel failed to accurately advise the movant about the

plea’s deportation consequences; and

(6) if counsel had advised the movant accurately, then the

movant would not have entered the plea.

The state then concluded: “Pursuant to the above . . . to properly resolve

this matter, an evidentiary hearing is warranted. At that time, it will be

up to the defendant to satisfy the burden of proof. . . . The State of

Florida respectfully requests this Honorable Court to conduct an

evidentiary hearing on defendant’s instant Motion.” (emphasis added).

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2. The Circuit Court’s Reasoning

Despite the state’s concession that an evidentiary hearing was

warranted, the circuit court entered a written order denying the

defendant’s motion without an evidentiary hearing. The court reasoned:

First and foremost, the defendant fails to establish, much

less even claim, that his attorney misadvised him concerning

the deportation consequences of his plea. Furthermore,

there is no allegation that [defense counsel] was ever advised

by [the defendant] that he was not a citizen, or that [the

defendant] even sought any advice as to the possible

deportation consequences of his guilty plea. Therefore, the

Court finds that there was no affirmative mis-advice by

[defense counsel] as discussed above. [Defense counsel’s]

performance fell within the wide range of reasonable

professional assistance, and was neither constitutionally

deficient nor unreasonable. Therefore, he was not legally

ineffective. Strickland v. Washington, 104 S. Ct. 2052 (1984);

Cano v. State, 112 So. 3d 646 (Fla. 4th DCA 2013); Padilla v.

Kentucky, 130 S. Ct. 1473 [(2010)].

Second, even if [defense counsel] is deemed to be

ineffective for failing to advise as to possible deportation

consequences where there is not even an allegation that the

defendant told [defense counsel] that he was not a citizen,

then the sworn colloquy between [the defendant] and the

[previous] trial judge amply cured any silence by [defense

counsel], as claimed by the defendant. That sworn colloquy

demonstrated that the [previous] trial judge advised the

defendant that he “probably” would be subject to deportation

as a result of his guilty plea. In this regard, the defendant’s

sworn affirmative understanding to the trial court’s

statement that “if you’re not a citizen, by pleading guilty

today, that would negatively affect your immigration status,

probably resulting in deportation and not being allowed back

in to the country” refutes [the defendant’s] claim of

ineffectiveness. . . . In this case, [the defendant’s] sworn

plea colloquy was thorough and complete and advised him

he would probably be deported. [The defendant] is unable to

establish any mis-advice by counsel and therefore, his claim

must fail.

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This appeal followed. Because the circuit court’s decision was based

on its legal determinations only, our review is de novo. Cf. Hernandez v.

State, 124 So. 3d 757, 759 n.1 (Fla. 2012) (“[G]iven that the certified

questions involve legal determinations . . . we employ a de novo standard

of review.”) (citation omitted).

3. The Parties’ Arguments to This Court

The defendant argues the circuit court erred in denying his motion

without an evidentiary hearing. In support of that argument, the

defendant raises four sub-arguments.

First, because his motion and affidavit asserted his counsel never

advised him that his plea would subject him to a certain and mandatory

deportation, “an evidentiary hearing should be conducted to determine if

the facts expressed in [the] motion are true.”

Second, in reference to the court’s reasoning that counsel may not

have known that he was not a United States citizen: “[T]he only way to

determine exactly what occurred between [him] and his attorney is to

conduct an evidentiary hearing. . . . [E]ven assuming arguendo that

somehow [counsel] did not know his immigration status[,] [counsel] had

an affirmative duty to find it out and advise [him] that the instant plea

would without a doubt cause him to be deported from the United States.”

Third, the circuit court’s equivocal warning, that the plea “probably”

would result in his deportation, did not cure any ineffectiveness.

Fourth, the state agreed an evidentiary hearing was warranted and

requested the court to conduct an evidentiary hearing.

The state, despite its concession in the circuit court that an

evidentiary hearing was warranted, now argues that the court properly

denied the defendant’s motion without an evidentiary hearing for two

reasons.

First, the defendant’s motion was facially insufficient because it did

not specify how his counsel failed to advise him accurately about his

plea’s deportation consequences.

Second, the defendant’s plea form and affirmative response to the

court’s warning that the plea “probably” would result in deportation

conclusively refuted his ineffective assistance claim.

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4. Our Reasoning

We conclude the circuit court erred in finding: (1) the motion was

facially insufficient; and (2) the motion and record conclusively

demonstrated that the defendant was not entitled to relief.

We also conclude the court’s warning during the plea colloquy, that

the plea “probably” would result in the defendant’s deportation, did not

necessarily remove any prejudice caused by counsel’s alleged ineffective

assistance, where the plea’s deportation consequences, at least on the

face of the defendant’s motion, may have been “truly clear” at the time of

the plea.

Thus, the court erred in denying the defendant’s motion without an

evidentiary hearing.

a. Why the Defendant’s Motion Was Facially Sufficient

The defendant’s motion was facially sufficient because he alleged, via

his incorporated affidavit: “I was never advised by my criminal defense

attorney of the immigration consequences of my plea.” In other words,

the defendant alleged his counsel did not inform him at all whether the

plea carried the risk of deportation.

Counsel’s alleged failure to give the defendant any advice regarding

the risk of deportation violates Padilla, where the United States Supreme

Court held: “[C]ounsel must inform [the] client whether [the] plea carries

a risk of deportation.” 559 U.S. at 374.

Contrary to the circuit court’s finding of facial insufficiency, neither

Padilla nor its progeny contain any requirement that a defendant’s

motion allege: (1) counsel misadvised him concerning the deportation

consequences of his plea; (2) the defendant advised counsel that he was

not a citizen; or (3) the defendant sought advice as to the plea’s

deportation consequences.

In fact, contrary to the circuit court’s first point, the United States

Supreme Court, in Padilla, expressly rejected the argument that an

ineffective assistance claim exists in the deportation context “only to the

extent that [the defendant] has alleged affirmative misadvice.” Id. at 369.

The Court reasoned:

[T]here is no relevant difference between an act of

commission and an act of omission in this context.

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A holding limited to affirmative misadvice would invite

two absurd results. First, it would give counsel an incentive

to remain silent on matters of great importance, even when

answers are readily available. Silence under these

circumstances would be fundamentally at odds with the

critical obligation of counsel to advise the client of the

advantages and disadvantages of a plea agreement. When

attorneys know that their clients face possible exile from this

country and separation from their families, they should not

be encouraged to say nothing at all. Second, it would deny a

class of clients least able to represent themselves the most

rudimentary advice on deportation even when it is readily

available. It is quintessentially the duty of counsel to

provide [the] client with available advice about an issue like

deportation and the failure to do so clearly satisfies the first

prong of the Strickland analysis.

Id. at 370-71 (internal quotation marks, citations, and footnotes omitted).

For the same reasons, also off-target is the state’s argument to this

court that the defendant’s motion was facially insufficient because it did

not specify how his counsel failed to advise him accurately about his

plea’s deportation consequences. As mentioned above, the defendant did

not allege, and Padilla did not require him to allege, that his counsel

failed to advise him accurately whether the plea carried the risk of

deportation. The defendant alleged, as Padilla permits him to allege, that

his counsel did not inform him at all whether the plea carried the risk of

deportation.

b. Why the Motion and Record Did Not Demonstrate

the Defendant Was Not Entitled To Relief

The motion and record did not demonstrate the defendant was not

entitled to relief, because nowhere in the motion or in the record is it

alleged that counsel informed the defendant whether his plea carried a

risk of deportation.

The circuit court’s error in this regard (which the state follows in its

argument to this court) stems from the court’s finding that a defendant’s

ineffective assistance of counsel claim in this context can be refuted by

the court’s colloquy with the defendant. That finding is incorrect. The

only way in which the record can refute an ineffective assistance of

counsel claim for failure to inform the defendant whether the plea carried

8

a risk of deportation is for the record to show that counsel informed the

defendant whether the plea carried a risk of deportation. Here, the

record contains no such showing. Cf. Facey v. State, 143 So. 3d 1003,

1004 (Fla. 4th DCA 2014) (record refuted the defendant’s allegation that

counsel failed to “tell him anything” about the immigration consequences

where, during the plea colloquy, the defendant acknowledged talking

with counsel “thoroughly about the consequences”).

In other words, the circuit court’s error stems from its apparent

merging of Strickland’s two requirements for establishing an ineffective

assistance of counsel claim:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense.

466 U.S. at 687. Here, the circuit court found that, “even if [defense

counsel] is deemed to be ineffective for failing to advise as to possible

deportation consequences,” then the court’s warning during the plea

colloquy, that the plea “probably” would result in the defendant’s

deportation, “refute[d] [the defendant’s] claim of ineffectiveness.” That is

incorrect. What the court could have found, in theory, is that counsel’s

performance, on the face of the record only, was deficient, but the court’s

warning during the plea colloquy, that the plea “probably” would result

in the defendant’s deportation, removed any prejudice caused by

counsel’s alleged ineffective assistance. Cf. Facey, 143 So. 3d at 1004

(record refuted the defendant’s allegation that he was prejudiced by

counsel allegedly failing to advise him to consult an immigration attorney

where the defendant signed a plea form which advised him that the plea

“will” result in his deportation).

However, even the theory that the court’s warning during the plea

colloquy removed any prejudice caused by counsel’s alleged ineffective

assistance does not hold water. Put another way, the court’s warning –

that the plea “probably” would result in the defendant’s deportation – did

not necessarily remove any prejudice caused by counsel’s alleged

ineffective assistance. We expound upon this point in the next section.

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c. Why the Court’s Warning During the Plea Colloquy,

That the Plea “Probably” Would Result in the Defendant’s Deportation,

Did Not Necessarily Remove Any Prejudice

Caused By Counsel’s Alleged Ineffective Assistance

The court’s warning during the plea colloquy, that the plea “probably”

would result in the defendant’s deportation, did not necessarily remove

any prejudice caused by counsel’s alleged ineffective assistance, because

the plea’s deportation consequences, at least on the face of the

defendant’s motion, may have been “truly clear” at the time of the plea.

We base this conclusion on our reading of Padilla, Hernandez, and the

Immigration and Nationality Act (INA), as codified in the United States

Code. We address each in turn.

In Padilla, the United States Supreme Court held:

When the law is not succinct and straightforward . . . a

criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a

risk of adverse immigration consequences. But when the

deportation consequence is truly clear . . . the duty to give

correct advice is equally clear.

559 U.S. at 369 (emphasis added; footnote omitted).

In Hernandez, the Florida Supreme Court held that Padilla’s “truly

clear” standard applying to counsel’s deportation advice also applied to

Florida Rule of Criminal Procedure 3.172(c)(8)’s court-required

deportation warning1:

1 Rule 3.172(c)(8) provides, in pertinent part:

(c) Determination of Voluntariness. Except when a defendant is

not present for a plea . . . the trial judge should, when determining

voluntariness, place the defendant under oath and shall address

the defendant personally and shall determine that he or she

understands:

....

(8) that if he or she pleads guilty or nolo contendere, if he or she is

not a United States citizen, the plea may subject him or her to

deportation pursuant to the laws and regulations governing the

United States Immigration and Naturalization Service.

10

Where deportation consequences are “truly clear,” the United

States Supreme Court in Padilla requires effective counsel to

provide more than equivocal advice concerning those

consequences. Padilla, 130 S.Ct. at 1483. At least in those

circumstances, an equivocal warning from the trial court is

less than what is required from counsel and therefore cannot,

by itself, remove prejudice resulting from counsel’s deficiency.

The fact that an equivocal warning from the trial court is

insufficient to categorically eliminate prejudice in every

circumstance is not to say, however, that the plea colloquy is

meaningless . . . . Instead, a colloquy containing an

equivocal warning from the trial court and an

acknowledgment from the defendant contributes to the

totality of the circumstances by providing evidence that the

defendant is aware of the possibility that a plea could affect

his immigration status. In other words, the colloquy

required by rule 3.172(c)(8) may refute a defendant’s

postconviction claim that he had no knowledge that a plea

could have possible immigration consequences; however, it

cannot by itself refute a claim that he was unaware of

presumptively mandatory consequences.

124 So. 3d at 763 (emphasis added).

Thus, the issue for this court is whether the defendant’s plea to

carrying a concealed firearm, at least on the face of the defendant’s

motion and the INA, had:

 “possible immigration consequences,” id. (i.e., it was not “truly

clear” that the plea would result in deportation), for which the

court’s rule 3.172(c)(8) warning that the plea “probably” would

result in the defendant’s deportation may have been sufficient; or

 “presumptively mandatory consequences,” id. (i.e., it was “truly

clear” that the plea would result in deportation), for which the

court’s rule 3.172(c)(8) warning that the plea “probably” would

result in the defendant’s deportation may have been insufficient.

(emphasis added).

11

After examining the INA, we conclude the plea’s deportation

consequences, at least on the face of the defendant’s motion and the INA,

may have had “presumptively mandatory consequences,” id. (i.e., it may

have been “truly clear” that the plea would result in deportation), for

which the court’s rule 3.172(c)(8) warning that the plea “probably” would

result in the defendant’s deportation may have been insufficient.

The defendant’s motion and his immigration attorney’s supporting

affidavit cite section 237(a)(2)(C) of the INA as the basis for why the

defendant’s plea to carrying a concealed firearm made him “mandatorily

deportable.”

INA section 237(a)(2)(C), codified at 8 U.S.C. § 1227(a)(2)(C) and

entitled “Deportable aliens,” provides, in pertinent part:

(a) Classes of deportable aliens

Any alien . . . in and admitted to the United States shall,

upon the order of the Attorney General, be removed if the

alien is within one or more of the following classes of

deportable aliens:

....

(2) Criminal offenses

....

(C) Certain firearm offenses

Any alien who at any time after admission is convicted under

any law of . . . carrying . . . any weapon . . . which is a

firearm . . . in violation of any law is deportable.

(emphasis added).

Further, INA section 238(a)(1), codified at 8 U.S.C. § 1228(a)(1) and

entitled “Expedited removal of aliens convicted of committing aggravated

felonies,” provides, in pertinent part:

(a) Removal of criminal aliens

(1) In general

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The Attorney General shall provide for the availability of

special removal proceedings at certain Federal, State, and

local correctional facilities for aliens convicted of any

criminal offense covered in section 1227(a)(2) . . . (C) . . . of

this title . . . . Such proceedings shall be conducted . . . in a

manner which assures expeditious removal following the end

of the alien’s incarceration for the underlying sentence.

Lastly, INA section 240A(a), codified at 8 U.S.C. § 1229b(a) and

entitled “Cancellation of removal; adjustment of status,” provides, in

pertinent part:

(a) Cancellation of removal for certain permanent residents

The Attorney General may cancel removal in the case of an

alien who is inadmissible or deportable from the United

States if the alien --

(1) has been an alien lawfully admitted for permanent

residence for not less than 5 years,

(2) has resided in the United States continuously for 7 years

after having been admitted in any status, and

(3) has not been convicted of any aggravated felony.2

Applying the foregoing provisions to the face of the defendant’s

motion, the defendant’s plea to carrying a concealed firearm may have

had “presumptively mandatory consequences” (i.e., it may have been

“truly clear” that the plea would result in deportation) for the following

reasons:

 The plea to carrying a concealed firearm subjects the defendant

to mandatory deportation upon the order of the Attorney

General, see 8 U.S.C. § 1227(a)(2)(C);

 The plea to carrying a concealed firearm subjects the defendant

to expedited deportation, see 8 U.S.C. § 1228(a)(1); and

2 8 U.S.C. § 1101(a)(43) defines “aggravated felony” by identifying

approximately two dozen qualifying offenses, but does not identify carrying a

concealed firearm as one of those qualifying offenses.

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 The Attorney General may not cancel the defendant’s

deportation, because he has not been an alien lawfully admitted

for permanent residence for not less than 5 years and has not

resided in the United States continuously for 7 years after

having been admitted in any status, see 8 U.S.C. § 1229b(a)(1)

& (2). According to the defendant’s affidavit, he entered the

United States as a lawful permanent resident on June 8, 2007,

which was less than five years from his offense on May 19,

2010, and his plea and conviction on November 10, 2011.

Thus, because the plea’s deportation consequences, at least on the

face of the defendant’s motion and the INA, may have had “presumptively

mandatory consequences” (i.e., it may have been “truly clear” that the

plea would result in deportation), the court’s rule 3.172(c)(8) warning

that the plea “probably” would result in the defendant’s deportation may

have been insufficient. Padilla, 559 U.S. at 369; Hernandez, 124 So. 3d

at 763. As a result, the circuit court erred in denying the defendant’s

3.850 motion without an evidentiary hearing.

Based on the foregoing, we reverse the circuit court’s order denying

the defendant’s rule 3.850 motion without an evidentiary hearing. We

remand for the court to conduct an evidentiary hearing on the motion.3

3 In reaching our decision, we note an error in our Facey opinion which is

referenced in section 4.b. above. In Facey, we stated that the defendant “was

not convicted of an aggravated felony and may qualify for discretionary

cancellation of removal. See 8 U.S.C. § 1229b.” 143 So. 3d at 1005. That

statement was error because it ignored section 1229b’s other two requirements

for a defendant to qualify for discretionary cancellation of removal: being

“lawfully admitted for permanent residence for not less than 5 years” and

having “resided in the United States continuously for 7 years after having been

admitted in any status.” 8 U.S.C. § 1229b(a)(1) & (2). The defendant in Facey

“was admitted to the United States on September 11, 2007” and “[t]he offense

was committed in November 2010.” 143 So. 3d at 1005. Thus, at the time the

of the offense, the defendant had not been “lawfully admitted for permanent

residence for not less than 5 years” and had not “resided in the United States

continuously for 7 years after having been admitted in any status.” As a result,

he did not meet section 1229b’s other two requirements for a defendant to

qualify for discretionary cancellation of removal.

However, that error was harmless (and is dicta) because we based our

decision to affirm the circuit court’s denial of the defendant’s rule 3.850 motion

on two other independent grounds: (1) the record refuted the defendant’s

allegation that counsel failed to “tell him anything” about the immigration

consequences where, during the plea colloquy, the defendant acknowledged

talking with counsel “thoroughly about the consequences”; and (2) the record

14

Reversed and remanded for an evidentiary hearing.

WARNER, J., concurs.

CIKLIN, C.J., dissents with opinion.

CIKLIN, C.J., dissenting.

I respectfully dissent. The trial judge advised the defendant during

the plea colloquy that he “probably” will be deported. This has not been

shown to be inaccurate.

Requiring an attorney to provide definitive advice that deportation is

“certain” may compel attorneys to provide wrong advice. See State v.

Shata, No. 2013AP1437-CR, 2015 WL 4112673, at *19-20 (Wis. July 9,

2015) (holding that lawyer’s advice that there was a “strong chance” of

deportation was not deficient and attorney was not required to tell him

that his conviction would “absolutely result” in deportation). As

explained in Shata, federal officials have prosecutorial discretion as to

removal proceedings, and there may be “avenues for deportable aliens to

avoid deportation.” Id. at *14. Other courts have concluded that an

attorney is not required to advise a client that deportation is certain to

occur. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct.

2013)(concluding that counsel’s advice that deportation was likely and

possible was correct and not deficient), appeal denied, 86 A.3d 232 (Pa.

2014); Chacon v. State, 409 S.W.3d 529, 537 (Mo. Ct. App. 2013)

(holding that counsel’s advice that it was “very likely” defendant would be

deported was not deficient).

Immigration law is often complex, and state courts and criminal

defense lawyers are generally not well versed in it. Requiring state courts

to make definitive pronouncements and delve deep into immigration law

matters in postconviction proceedings may further complicate the law.

I would hold that the court’s accurate warning in this case

conclusively refutes the potential prejudice.

refuted the defendant’s allegation that he was prejudiced by counsel allegedly

failing to advise him to consult an immigration attorney where the defendant

signed a plea form which advised him that this plea “will” result in his

deportation. 143 So. 3d at 1004. Although the error was dicta, we note the

error here so that courts and practitioners do not rely on the error in the future.

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* * *

Not final until disposition of timely filed motion for rehearing.

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