Submitted October 17, 2017
from Berkeley County J. C. Nicholson, Jr., Post-Conviction
J. Devine, of Charleston, for Petitioner.
Attorney General Alan M. Wilson and Assistant Attorney
General Justin J. Hunter, both of Columbia, for Respondent.
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.
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
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.
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.
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).
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
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
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