Francisco R. Rodriguez v. State ( 2024 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Francisco Roberto Rodriguez, Petitioner,
v.
State of South Carolina, Respondent.
Appellate Case No. 2020-000882
Appeal From Spartanburg County
G. Thomas Cooper Jr., Circuit Court Judge
Opinion No. 6087
Heard May 8, 2024 – Filed September 4, 2024
AFFIRMED
Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior
Assistant Attorney General Mark Reynolds Farthing and
Assistant Attorney General Bryan TyJarris Hall, all of
Columbia, for Respondent.
THOMAS, J.: In this action for post-conviction relief (PCR), Francisco R.
Rodriguez (Petitioner) argues the PCR court erred in finding he suffered no
prejudice from plea counsel's failure to advise him that entering an Alford plea1
1
North Carolina v. Alford, 400 U.S. 25, 37 (1970) (allowing a defendant to plead
guilty without an admission of guilt).
would result in mandatory deportation and a permanent ban on reentry to the
United States. We affirm.
Facts and Procedural History
In 2016, Petitioner entered an Alford plea to third-degree criminal sexual conduct
(CSC) with a minor. An interpreter translated the proceedings. 2 The only mention
on the record during the plea hearing regarding immigration consequences was by
the State, who informed the court at the end of the hearing that it had contacted the
federal authorities and it was uncertain of the immigration consequences. The plea
court sentenced Petitioner to fifteen years in prison and ordered him to register as a
sex offender. Petitioner did not file a direct appeal; however, he filed this
application for PCR, which does not raise immigration consequences. Following
an evidentiary hearing, the PCR court found plea counsel's failure to advise
Petitioner that he would be deported if he entered the Alford plea constituted
deficient performance pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010).
However, the PCR court found Petitioner was not prejudiced by this deficiency and
denied relief. We granted Petitioner's petition for a writ of certiorari.
Standard of Review
"In [PCR] proceedings, the burden of proof is on the applicant to prove the
allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512,
514 (2008). "We defer to a PCR court's findings of fact and will uphold them if
there is evidence in the record to support them." Smalls v. State, 422 S.C. 174,
180, 810 S.E.2d 836, 839 (2018). "We review questions of law de novo, with no
deference to trial courts." Id. at 180-81, 810 S.E.2d at 839.
Law/Analysis
Petitioner argues the PCR court erred in finding he suffered no prejudice from plea
counsel's failure to advise him that entering the Alford plea would result in
mandatory deportation and a permanent ban on reentry. We disagree.
2
Petitioner, who is from Veracruz, Mexico, speaks only Spanish.
At the PCR hearing, Petitioner testified counsel knew he was from Mexico and
counsel told him it would be possible he would be deported. 3 Petitioner testified
plea counsel never explained he would be placed on the sex offender registry or
what that entails. He further testified plea counsel did not explain that a sexual
crime against a child is considered a crime of moral turpitude or advise that by
entering such a plea, Petitioner would "be banned completely from ever reporting
legal status in the United States."
Plea counsel testified, "I told him that immigration was probably gonna come and
get him when his sentence was over no matter when it ended . . . and that they
would use this conviction against him as a reason to deport him." When asked on
cross-examination about whether he explained the immigration consequences that
would result from the plea, plea counsel responded, "Yes, I'm sure I did. I told him
that it would be used against him in a deportation proceeding if there was one."
Plea counsel acknowledged the plea would completely bar Petitioner from ever
legally entering the United States, but when asked whether Petitioner understood
that by entering the plea he would not be permitted to return to raise his children,
counsel responded, "I don't know if I ever told him he'd never be able to come back
to the United States. I may not have gone over that with him, but he was very
much aware that the immigration court would—you know, this would be used
against him and he would probably be deported."
We find the PCR court correctly found plea counsel was deficient in failing to
explicitly advise Petitioner of the mandatory deportation and ban on reentry
Petitioner faced if he entered this Alford plea. In Taylor v. State, our supreme
court explained, "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.'" 422 S.C. 222, 225, 810 S.E.2d 862, 863 (2018) (quoting Padilla,
559 U.S. 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. (quoting Padilla, 559 U.S. at
368-69).
Here, the terms of the removal statutes are succinct, clear, and explicit in
mandating Petitioner was deportable if convicted. See, e.g., 8 U.S.C.A. § 12273
Petitioner interrupted the plea hearing eight times to ask questions and confer
with his counsel. However, none of the interruptions appear to have been
regarding immigration consequences.
(a)(2)(A)(i) (providing that an alien admitted to the United States "who (I) is
convicted of a crime involving moral turpitude committed within five years (or 10
years in the case of an alien provided lawful permanent resident status under
section 1255(j) of this title) after the date of admission, and (II) is convicted of a
crime for which a sentence of one year or longer may be imposed, is deportable");
8 U.S.C.A. § 1227 (a)(2)(E)(i) ("Any alien who at any time after admission is
convicted of a crime of domestic violence, a crime of stalking, or a crime of child
abuse, child neglect, or child abandonment is deportable."). Thus, plea counsel had
a duty to give correct advice. See Taylor, 422 S.C. at 227, 810 S.E.2d 864("Pursuant to Padilla, counsel must do more than 'discuss immigration' or advise
Petitioner he might face adverse immigration consequences."). Because plea
counsel's advice that Petitioner might be deported was deficient, the PCR court
correctly found deficient performance.
However, the PCR court also found that although counsel was deficient for failure
to inform Petitioner of the immigration consequences of his plea, Petitioner failed
to prove prejudice because Petitioner "still would have taken the plea if [plea
c]ounsel provided a more concrete answer regarding immigration consequences of
the plea." The PCR court found the determinative factor in Petitioner's decision to
enter the Alford plea was a lesser sentence. Although the PCR court's order states
Petitioner "made clear the determinative factor in taking the plea was the shortened
sentence, not any potential deportation consequences" and this finding is based on
plea counsel's testimony rather than Petitioner's, we find evidence to support the
PCR court's finding. See Lee v. United States, 582 U.S. 357, 369 (2017) ("Courts
should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney's deficiencies. Judges
should instead look to contemporaneous evidence to substantiate a defendant's
expressed preferences."); Smalls, 422 S.C. at 180, 810 S.E.2d at 839 ("We defer to
a PCR court's findings of fact and will uphold them if there is evidence in the
record to support them.").
At the plea hearing, an interpreter was present. When the plea court asked
Petitioner if he wanted to proceed to trial, Petitioner responded, "No. I want an
Alford." Petitioner also affirmed he knew the plea would be treated like a guilty
plea, he was receiving a beneficial result by accepting the Alford plea, no one
forced him to plead, no one talked him into pleading, there was a substantial
likelihood he would be convicted if he went to trial, and that he had plenty of time
to talk with his lawyer. There were numerous instances when Petitioner was
unclear during the plea hearing; however, each time the plea court permitted
Petitioner to confer with counsel.
At the PCR hearing, plea counsel testified that he explained to Petitioner what an
Alford plea was a day or two before the plea hearing with Petitioner being engaged
and discussing the sentences others with similar offenses had received. Counsel
testified he discussed trial strategy with Petitioner and Petitioner told him he did
not want to proceed to trial because he did not want to risk the possibility of a
twenty-five-year sentence. Further, counsel testified that although Petitioner asked
numerous questions during the plea hearing, he never indicated he wanted a trial.
Finally, albeit insufficient under Padilla, counsel did discuss the possibility of
immigration consequences.
Despite knowledge of the possibility of immigration consequences, Petitioner's
testimony at the PCR hearing was primarily based on his other allegations of
deficient performance by his plea counsel and only secondarily concerned with
immigration consequences. When he was asked at the PCR hearing what relief he
was seeking, he responded, "[a] new trial or a reduction of the time." The
numerous interruptions during the plea hearing concerned the underlying facts and
strength of the case against him, including counsel's investigation; the rights he
was foregoing to plead; and one instance of explaining an Alford plea. None of the
interruptions concerned immigration consequences. Although Petitioner's
testimony supports the PCR court's finding that counsel's representation was
deficient, Petitioner never testified that if counsel told him deportation was
mandatory in his case he would have proceeded to trial.
In Padilla, the court found "constitutionally competent counsel would have
advised [Padilla] that his conviction for drug distribution made him subject to
automatic deportation." 559 U.S. at 360. However, the court did not have to
address whether counsel's incompetence prejudiced Padilla. Id. ("Whether
[Padilla] is entitled to relief depends on whether he has been prejudiced, a matter
that we do not address."). In Taylor, the court found prejudice. 422 S.C. at 233-
34, 810 S.E.2d at 867-68. However, in Taylor "it [was] uncontested that [Taylor]
'would have rejected any plea leading to deportation.'" Id. at 233, 810 S.E.23d at
867. Here, it is not clear that Petitioner would have rejected any plea offer leading
to deportation. In our review of prejudice, we look only at whether "there is a
reasonable probability that, but for counsel's errors, the defendant would not have
pled guilty but would have insisted on going to trial." Id. We find Petitioner failed
to meet his burden of proving there was a reasonable probability that he would
have rejected the plea offer and insisted on going to trial had he been properly
advised of the resulting immigration consequences. Thus, we affirm the PCR
court's order denying relief.
AFFIRMED.
VERDIN, A.J., concurs.
MCDONALD, J., dissenting: While I agree with the majority that the PCR court
correctly found plea counsel's failure to advise Petitioner of the deportation
consequences of his Alford plea constituted deficient performance, I part company
with the majority's affirmance of the finding that Petitioner was not prejudiced by
this deficiency. Thus, I respectfully dissent.
In his application for post-conviction relief, Petitioner claims:
That the Applicant did not have an interpreter to explain
the nature of the charge against him, his constitutional
right to a jury trial, a defense, or of the exposure of time
and consequence of the plea. If the Applicant had been
advised in a manner that he could understand, he would
have insisted on going to trial.
Although plea counsel speaks "a little bit" of Spanish, Petitioner testified he did not
fully understand everything his counsel said in their meetings leading up to his
plea. 4 Petitioner further alleged he neither understood the plea paperwork—
because it was in English—nor the concept of an Alford plea. Even when
Petitioner asked plea counsel "what [an Alford plea] was" during the taking of the
plea, counsel "didn't explain it," "[h]e just said to accept it."
Petitioner testified plea counsel never explained he would be placed on the sex
offender registry or what that entails and "just told me that it would be possible for
me to be deported." He further claimed plea counsel did not explain that by
entering the plea, Petitioner "would be banned completely from ever reporting
legal status in the United States." In my view, the repeated interruptions reflected
in the plea transcript are important, as they support Petitioner's claim that he was
confused throughout the proceeding.
4
Plea counsel testified that while he can converse in Spanish, he "could not pass a
college course in Spanish."
Plea counsel testified that he reviewed all of the discovery with Petitioner and
explained the concept of an Alford plea. He noted they "went over an Alford plea
because [Petitioner] said he didn't do it and wasn't gonna admit to it." Although
plea counsel stated he "did explain what an Alford plea was," I find more
significant counsel's admission that Petitioner seemed "very confused" during the
plea. When asked on cross-examination about whether he explained the
immigration consequences that would follow as a result of the plea, counsel
replied, "Yes, I'm sure I did. I told him it would be used against him in a
deportation proceeding if there was one." When asked whether Petitioner
understood that by entering the plea he would not be permitted to return to the
United States to see his children, plea counsel responded:
Well . . . I think I had asked him if there were any—if
there was anything about the children that was
exceptional or unusual in any regard. And I don't think
there was, but I don't know if I ever told him he'd never
be able to come to the United States. I may not have
gone over that with him, but he was very much aware
that the immigration court would—you know, this would
be used against him and he would probably be deported.
In Taylor, our supreme court explained, "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.'" 422 S.C. at 225, 810 S.E.2d at 863
(quoting Padilla, 559 U.S. 356 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.(quoting Padilla, 559 U.S. 356 at 368-69).
I agree with the majority that the terms of the applicable removal statutes are
succinct, clear, and explicit in mandating Petitioner was deportable if convicted.
But the problem here is that plea counsel himself did not appear to understand this
consequence, and he admittedly did not adequately explain it to Petitioner. As the
majority recognizes, the only reference to immigration consequences before the
plea court was the prosecutor's brief reference to deportation at the end of the
proceeding. Notably, when the State mentioned "deportation is not a real
consequence unless this sentence is ninety days or more," the plea court made no
inquiry as to whether Petitioner understood that his plea would result in mandatory
deportation. Cf. United States v. Akinsade, 686 F.3d 248, 255 (4th Cir. 2012)
(explaining that in order for a plea court's "admonishment to be curative, it should
address the particular issue underlying the affirmative misadvice"). Thus, the
conduct of the plea proceeding itself did not ameliorate the prejudice to Petitioner
resulting from plea counsel's deficiency.
The PCR court found the determinative factor in Petitioner's decision to enter the
Alford plea was a lesser sentence. 5 I agree with the majority that this finding is
likely supported by plea counsel's testimony. Still, in light of Petitioner's clear
confusion during the plea proceeding itself, there is at least a reasonable
probability that Petitioner would have rejected the plea and insisted on going to
trial had he been properly advised that his plea would result in mandatory
deportation and a permanent ban on reentry. 6 See, e.g., United States v. Swaby,
855 F.3d 233, 243 (4th Cir. 2017) (addressing prejudice in the context of Padilla
deficient performance and finding the "likelihood of acquittal at trial is not the only
factor a defendant considers, especially when the offered plea carries considerable
collateral consequences. For example [the Fourth Circuit] has found prejudice
when the defendant has 'significant familial ties to the United States and thus
would reasonably risk going to trial instead of pleading guilty and facing certain
deportation.'" (quoting Akinsade, 686 F.3d at 255)). 7
More concerning to me, though, is the transcript of the Alford plea itself. Although
5
The PCR court's order of dismissal contains an error in its determinative factor
finding. The order states, "Applicant made clear the determinative factor in taking
the plea was the shortened sentence, not the potential deportation consequences."
However, the cited portion of the record supporting this finding is plea counsel's
testimony in response to the State's asking whether "Applicant indicated to you
[plea counsel] that he wanted to plead before he went to the hearing."
6
Further relevant to our consideration is plea counsel's statement at the PCR
hearing that "looking back, maybe I should have just taken a lot more time with
him to make sure he understood that it [the Alford plea proceeding] wasn't a trial."
7
Unlike the circumstances in Taylor and Lee, this was not a "Hail Mary" situation.
Cf. Taylor, 422 S.C. at 232-34, 810 S.E.2d at 867-68 (quoting Lee, 582 U.S. at
1966-67). The State's case against Petitioner turned solely on the testimony of the
minor. And, plea counsel testified before the PCR court as to his belief "that the
parents of the victim might have some type of ulterior motive to make allegations
in that they're not legally in the country and they might be looking for a new visa."
Petitioner appeared to understand some of the proceeding, his eight interruptions
for clarification—coupled with the admitted language barrier and lack of an
interpreter for his intermittent consultations with counsel—should have alerted
both plea counsel and the plea court that further inquiry was necessary to
determine whether Petitioner truly understood the consequences of his plea.
Because there is a reasonable probability that Petitioner would have rejected the plea
and insisted on going to trial had he been properly advised of the resulting mandatory
deportation and permanent ban on reentry to the United States, I would reverse the
PCR court's order denying relief and remand for a new trial.