Lucero v. State
| Decision Date | 09 September 2015 |
| Docket Number | No. 5352.,Appellate Case No. 2012–213130.,5352. |
| Citation | 777 S.E.2d 409,414 S.C. 238 |
| Court | South Carolina Court of Appeals |
| Parties | Ken LUCERO, Respondent, v. STATE of South Carolina, Petitioner. |
Attorney General, Alan McCrory Wilson and Assistant Deputy Attorney General, David A. Spencer, both of Columbia, for petitioner.
Eleanor Duffy Cleary, of Cleary Law LLC, of Columbia, for respondent.
ON WRIT OF CERTIORARI
In this post-conviction relief (PCR) action, the State argues the PCR court erred in finding Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively and granting Ken Lucero's application for PCR. The State also contends the PCR court erred in denying its motion to dismiss on the basis that the application was barred by the statute of limitations and laches. We reverse.
Lucero was born in Ecuador, moved to the United States in 1993, and became a “permanent resident alien” in 2000. On June 6, 2002, she was traveling in a rental car from New York City, where she lived, to Orlando, Florida, when police executed a traffic stop in Dorchester County, South Carolina. According to Lucero, because she did not speak English, she was unsure why police stopped her. Police searched her vehicle and found heroin in the trunk, but she asserted she had never seen heroin or transported it for other people.
The State indicted Lucero for trafficking heroin in an amount more than one hundred grams but less than two hundred grams. In November 2002, she pled guilty to the lesser included offense of possession of heroin, and the plea court sentenced her to two years' imprisonment suspended on three years' probation.1 Lucero did not file a direct appeal. In February 2011, an immigration judge ordered Lucero removed to Ecuador due to her conviction.
On April 14, 2011, Lucero filed an application for PCR alleging ineffective assistance of counsel based on Padilla because plea counsel failed to inform her of the possibility of deportation due to her conviction. At the PCR hearing, Lucero testified she met with plea counsel on three occasions and plea counsel never informed her of the possibility of deportation. She testified she would not have pled guilty if she knew she could be deported.
The State argued Lucero's application was barred by the statute of limitations because she pled guilty in 2002, never filed a direct appeal, and filed her PCR application in 2011, in excess of the one-year statute of limitations for PCR. The State claimed Padilla was not retroactive; therefore, her application was “far beyond the [one-year] statute of limitations.” Alternatively, the State argued even if Padilla was retroactive, Lucero's application was still barred by the statute of limitations because she waited more than one year from the day the Supreme Court issued Padilla. The State also claimed the doctrine of laches barred Lucero's application.
The PCR court found Lucero was entitled to PCR and vacated her conviction. Initially, the PCR court determined Lucero's application fell within the one-year statute of limitations provided under section 17–27–45(B) of the South Carolina Code (2014) because Padilla was “ ‘intended to be applied retroactively.’ ” Further, the PCR court ruled the one-year statute of limitations contained in section 17–2745(B) begins from the day the Supreme Court issues its “mandate” because “[t]his is analogous to the state court's issuing of the remittitur under Rule 221, SCACR.” The PCR court explained because the Supreme Court issued its mandate for Padilla on May 3, 2010, Lucero's application, filed on April 14, 2011, was within one year of Padilla becoming final. Finally, the PCR court found the doctrine of laches did not bar Lucero's application because “the severe consequences of [Lucero] being deported outweigh any prejudice caused to the [S]tate by trying this case.”
The State filed a petition for writ of certiorari from the grant of Lucero's application for PCR. This court granted the petition.
On review, we will uphold a PCR court's findings if any evidence of probative value supports them. Simuel v. State, 390 S.C. 267, 270, 701 S.E.2d 738, 739 (2010). “This [c]ourt will reverse the PCR [court]'s decision when it is controlled by an error of law.” Suber v. State, 371 S.C. 554, 558–59, 640 S.E.2d 884, 886 (2007). We “give[ ] great deference to the PCR court's findings of fact and conclusions of law.” Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006).
The State argues the PCR court erred by finding Padilla applied retroactively. Specifically, the State claims the ruling in Padilla was a “new rule” under Teague2 because it applied the ineffective assistance of counsel analysis from Strickland3 for the first time to decide whether plea counsel's failure to inform a defendant about deportation consequences constituted ineffective assistance. According to the State, because Padilla was a “new rule,” it does not apply retroactively and the PCR court should have dismissed Lucero's application as barred by the statute of limitations. The State further asserts Padilla's ruling was not a watershed rule of criminal procedure. We agree.
“In a PCR proceeding, the applicant bears the burden of establishing that he or she is entitled to relief.” Lomax v. State, 379 S.C. 93, 100, 665 S.E.2d 164, 167 (2008). “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “The defendant must first demonstrate that counsel was deficient and then must also show the deficiency resulted in prejudice.” Walker v. State, 407 S.C. 400, 404–05, 756 S.E.2d 144, 146 (2014). “There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case.” Morris v. State, 371 S.C. 278, 282, 639 S.E.2d 53, 55 (2006). “The two-part test adopted in Strickland also applies to challenges to guilty pleas based on ineffective assistance of counsel.”Holden v. State, 393 S.C. 565, 572, 713 S.E.2d 611, 615 (2011) (internal quotation marks omitted).
“To satisfy the first prong, a defendant must show counsel's performance fell below an objective standard of reasonableness.” Walker, 407 S.C. at 405, 756 S.E.2d at 146 (internal quotation marks omitted). “To prove prejudice, an applicant must show there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.” Id. (internal quotation marks omitted). To prove prejudice in the context of a guilty plea, an applicant must show that but for counsel's errors, there is a reasonable probability the applicant would not have pled guilty and would have insisted on going to trial. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001).
In Padilla, 559 U.S. at 360, 130 S.Ct. 1473, the Supreme Court addressed whether plea counsel must inform his or her client of the risk of deportation associated with a potential guilty plea. The Supreme Court explained:
It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.
Id. at 374, 130 S.Ct. 1473 (citation and internal quotation marks omitted). Further, to be effective, counsel must inform a defendant whether his or her plea carries a risk of deportation because it is a critical factor when deciding whether to plead guilty or proceed to trial. Hamm v. State, 403 S.C. 461, 463 n. 1, 744 S.E.2d 503, 504 n. 1 (2013).
The Supreme Court has found the retroactivity of federal criminal procedure decisions “turn[s] on whether they are novel,” i.e., whether they constitute a “new rule.” Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013). When the Supreme Court announces a “ ‘new rule,’ a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Id. “Only when [the Supreme Court] appl[ies] a settled rule may a person avail herself of the decision on collateral review.” Id. “A case announces a new rule ... when it breaks new ground or imposes a new obligation on the government” or “if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Id. (brackets omitted) (internal quotation marks omitted). A case does not announce a new rule when it is “merely an application of the principle that governed a prior decision to a different set of facts.” Id. (internal quotation marks omitted). In Chaidez,4 the Supreme Court found Padilla announced a “new rule” because its “holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been ... ‘apparent to all reasonable jurists' prior to [Padilla ].” Id. at 1111. Accordingly, the Supreme Court found Padilla did not apply retroactively and “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Id. at 1107, 1113.
Our supreme court has acknowledged the Supreme Court's decision in Chaidez. See Hamm, 403 S.C. at 465 n. 4, 744 S.E.2d at 505 n. 4 (). Additionally, the Hamm court found a PCR applicant “failed to file a PCR application raising any issue related to Padilla within one year of that decision, issued March 31,...
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