IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA19-471 Filed: 3 December 2019 Nash County, No. 15 CRS 52330 STATE OF NORTH CAROLINA v. ALI AWNI SAID MARZOUQ, Defendant. Appeal by defendant from order entered 28 December 2018 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 31 October 2019. Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State. Tin Fulton Walker & Owen, PLLC, by Jim Melo, Esq., for defendant-appellant. North Carolina Advocates for Justice, by Helen L. Parsonage, and North Carolina Justice Center, by Raul A. Pinto, amici curiae. YOUNG, Judge. Where defendant’s guilty plea presumptively subjected him to deportation, trial counsel’s advice that defendant “may” be deported constituted ineffective assistance of counsel. However, where the record does not affirmatively show whether the trial court considered defendant’s prior convictions to determine prejudice, we must remand for further findings. We affirm in part, but remand in part. STATE V. MARZOUQ Opinion of the Court I. Factual and Procedural Background On 3 August 2015, Ali Awni Said Marzouq (defendant) was indicted by the Nash County Grand Jury for possession with intent to sell and deliver heroin, and possession of a Schedule II controlled substance. At some point he was also charged with maintaining a vehicle or dwelling place for the keeping or selling of controlled substances. Defendant pleaded guilty to the charges of possession of heroin and maintaining a vehicle or dwelling place, and the trial court entered judgment, namely a two-year suspended sentence. On the transcript of plea, next to Question 8, which asks whether the defendant understands that a guilty plea may result in deportation, defendant wrote “Permanent resident.” On 12 July 2018, defendant filed a motion for appropriate relief (MAR), seeking to withdraw his guilty plea. Defendant, an immigrant, alleged that roughly one year into his two-year suspended sentence, he was seized by Immigration and Customs Enforcement and placed into detention and removal proceedings. He argued that, had he known the plea would impact his immigration status and result in deportation, he would not have taken it. On 10 September 2018, the trial court entered an order, finding that defendant’s indication of “Permanent resident” in response to Question 8 on the transcript of plea indicated an affirmative response. The court therefore denied defendant’s MAR. -2- STATE V. MARZOUQ Opinion of the Court On 8 November 2018, this Court granted certiorari. In an order, this Court required the trial court to review “whether petitioner’s Alford plea was induced by misadvice of counsel regarding the immigration consequences of the plea and whether any misadvice resulted in prejudice to petitioner.” The matter was remanded to the trial court for review, and on 28 December 2018, the trial court entered another order. The court found that defendant had been advised that if he pleaded guilty, he might be deported; that defendant had further been advised to speak to an immigration attorney; that defendant asserted to the trial ...
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