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Taylor v. State

Supreme Court of South Carolina

February 28, 2018

Gregg Taylor, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2015-001118

          Submitted October 17, 2017


         Appeal from Berkeley County J. C. Nicholson, Jr., Post-Conviction Relief Judge

          Mark J. Devine, of Charleston, for Petitioner.

          Attorney General Alan M. Wilson and Assistant Attorney General Justin J. Hunter, both of Columbia, for Respondent.


         This is a post-conviction relief (PCR) matter in which Petitioner Gregg Taylor, a Jamaican citizen, pled guilty to a drug offense. Petitioner resided in South Carolina for years with his wife and two children, all three of whom are United States citizens. In plea negotiations, Petitioner's primary concern was whether he would be subject to deportation. Plea counsel viewed Petitioner's grave concern with the prospect of deportation as a "collateral" issue, yet provided general assurances to Petitioner that he would not be deported. As a result, Petitioner pled guilty. The drug offense resulted in Petitioner's deportation, and this PCR application followed. The PCR court denied relief. We granted a writ of certiorari and now reverse.


         Petitioner was indicted for possession with intent to distribute marijuana, which is punishable by up to five years in prison and a fine of $5, 000. Petitioner retained counsel to represent him. It appeared the State's case against Petitioner was strong, which prompted counsel to pursue a plea bargain. Following plea negotiations, Petitioner pled guilty to the lesser included offense of possession of more than one ounce of marijuana, which is punishable by up to six months in prison and a $1, 000 fine. Petitioner was sentenced to probation.

         As a result of his conviction, Petitioner was deported and returned to Jamaica. The essence of the PCR application was counsel's alleged failure to properly advise Petitioner of the law concerning his risk of deportation. Because Petitioner had been deported, he appeared at the PCR hearing by way of an affidavit, wherein he stated counsel assured him that he would not be deported and that but for counsel's erroneous advice, he would not have pled guilty and would have insisted on going to trial.


         The PCR court denied relief. Petitioner argues the PCR judge erred in refusing to find plea counsel was ineffective in failing to advise Petitioner of the immigration and deportation consequences of pleading guilty. "[A]dvice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Padilla v. Kentucky, 559 U.S. 356, 366 (2010). 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." Id. 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. at 368-69.

         Pursuant to federal law, an alien admitted to the United States who is convicted of a violation of "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, is deportable." 8 U.S.C.A. § 1227(a)(2)(B)(i) (emphasis added).

         In his PCR affidavit, Petitioner asserted that counsel misadvised him that his guilty plea would not have any adverse immigration consequences. Specifically, Petitioner stated counsel told him he had "nothing to worry about as to the immigration consequences of [his] plea . . . because [he] never had [his] lawful Permanent Resident Status as yet and accordingly [his] guilty plea would not have [any] consequences on [his] pending application . . . via [his] United States Citizen wife." Petitioner further stated counsel informed him that if he had his Green Card, he "would possibly have to deal with immigration, however because it was pending, they could not use [his] guilty plea against [him]." (emphasis added). Petitioner stated plea counsel told him, "I can promise you that you will walk out of that court room a free man in the US, the only thing that you may have to do is 6 months' probation." Finally, Petitioner stated that, had he known he would have faced deportation, he would not have entered a guilty plea, but would have insisted on going to trial.

         The PCR court found Petitioner failed to meet his burden of proof. Specifically, the PCR court found plea counsel adequately complied with Padilla, and Petitioner "was fully advised that he could face deportation as a result of pleading guilty." Further, the PCR judge found any deficiency on the part of plea counsel was cured by the plea judge during his colloquy with Petitioner. Finally, the PCR judge found Petitioner failed to show that but for counsel's performance, Petitioner would not have pled guilty.


         This Court will uphold the findings of the PCR court when there is any evidence of probative value to support them. Caprood v. State, 338 S.C. 103, 109-10, 525 S.E.2d 514, 517 (2000). However, this Court will reverse the PCR court's decision when it is controlled by an error of law or ...

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