Taylor v. State

THE STATE OF SOUTH CAROLINA In The Supreme Court Gregg Taylor, Petitioner, v. State of South Carolina, Respondent. Appellate Case No. 2015-001118 ON WRIT OF CERTIORARI Appeal from Berkeley County J. C. Nicholson, Jr., Post-Conviction Relief Judge Opinion No. 27769 Submitted October 17, 2017 – Filed February 28, 2018 REVERSED Mark J. Devine, of Charleston, for Petitioner. Attorney General Alan M. Wilson and Assistant Attorney General Justin J. Hunter, both of Columbia, for Respondent. JUSTICE KITTREDGE: 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. I. 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. A. 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 ...

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