State v. Jeminez

• Decision Date: 15 December 2020
• Docket Number: No. COA19-843,COA19-843
• Citation: 853 S.E.2d 265
• Parties: STATE of North Carolina v. Moises JEMINEZ, Defendant.
• Court: North Carolina Court of Appeals

853 S.E.2d 265

STATE of North Carolina

v.Moises JEMINEZ, Defendant.

No. COA19-843

Court of Appeals of North Carolina.

Filed: December 15, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W. Andrews, for defendant-appellant.

MURPHY, Judge.

The trial court must make sufficient findings of fact and conclusions of law to permit appellate review of its ruling on a motion for appropriate relief. Here, we vacate in part and remand because the trial court did not make sufficient findings to allow review on appeal of Defendant's arguments underlying his motion for appropriate relief.

Further, trial courts must comply with orders from the appellate courts. Where a trial court fails to comply with our prior order, we remand for consideration of any unaddressed issue. Here, we remand for consideration of whether Defendant knowingly and voluntarily entered into a plea agreement because the trial court failed to address this issue as directed by our prior order.

BACKGROUND ¹

Defendant, Moises Jeminez, is a Mexican citizen who came to the United States without documentation in 1987 at the age of seven. Defendant remained in the United States undocumented for the following thirty years until 2017. Defendant has a daughter, born in 2008, who is a United States citizen. In 2010, police found cocaine, cash, and digital scales in Defendant's home and arrested him. Defendant was indicted for possession with intent to sell or deliver a controlled substance and felony maintaining a dwelling for keeping or selling controlled substances, and charged with possession of drug paraphernalia. Defendant pleaded guilty to these charges after consulting with his attorney, who told him the guilty plea "may result in adverse immigration consequences." Pursuant to the plea, Defendant's charge of possession with intent to sell or deliver a controlled substance was reduced to simple possession of cocaine, the charges were consolidated, and Defendant received a 4 to 5 month sentence suspended for 18 months of supervised probation.

In 2017, Defendant was arrested by immigration authorities and deportation proceedings were initiated against him. Defendant's immigration attorneys informed him, but for his guilty plea in 2010, he could have applied to have his deportation cancelled under 8 U.S.C. § 1229b ; however, his conviction of a controlled substance related offense rendered him ineligible for cancellation of removal.² Additionally, for the same reasons, Defendant was informed he is permanently inadmissible to the United States.³ Based on these facts and his attorney's prior advice regarding the immigration consequences of pleading guilty in 2010, Defendant filed a Motion for Appropriate Relief and Request for Temporary Stay and Suspension of The Criminal Judgment ("MAR") alleging ineffective assistance of counsel under Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010).

In his MAR, Defendant argued his guilty plea to, and subsequent conviction of, a controlled substance offense resulted in his mandatory detention under 8 U.S.C. § 1226(c)(1)(A), inability to take advantage of executive discretion for cancellation of removal under 8 U.S.C. § 1229b, and inadmissibility for the rest of his life under 8 U.S.C. § 1182(a)(2)(A)(i)(II).⁴ Defendant contended the loss of the exception to deportation and later admissibility following a conviction for a controlled substance were definitive and clear, and his attorney should have informed him of the consequences of his guilty plea as it related to these exceptions.

Initially, in 2017, the trial court entered an order ("the 2017 Order") denying the MAR without an evidentiary hearing. Defendant then filed a Petition for Writ of Certiorari , arguing the trial court erred in denying his MAR without an evidentiary hearing.⁵ We granted this petition, vacated the 2017 Order, and remanded, stating

[t]he petition filed in this cause by [D]efendant on 20 October 2017 and designated ‘Petition for Writ of Certiorari’ is allowed for the purpose of entering the following order: It appears an evidentiary hearing is required to resolve the issues of whether [D]efendant was denied effective assistance of counsel and whether his plea was knowingly and voluntarily entered. See Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010) ; State v. Nkiam , , 778 S.E.2d 863 (2015), discretionary review improvidently allowed , 369 N.C. 61, 791 S.E.2d 457 (2016). Accordingly, the order filed 9 October 2017 by Judge Anderson D. Cromer denying [D]efendant's motion for appropriate relief without a hearing is hereby vacated and the matter remanded for an evidentiary hearing pursuant to N.C.[G.S.] 15A-1420(c)(4) and entry of an order pursuant to N.C.[G.S.] 15A-1420(c)(7). A copy of this order shall be mailed to the senior resident superior court judge and district attorney of Judicial District 17B and to the Office of the Appellate Defender.

After conducting an evidentiary hearing in 2019, the trial court entered an order ("the 2019 Order"), as follows:

[FINDINGS] OF FACT

1. On [3 June 2010] a search warrant was executed on [ ] Defendant's residence and [ ] Defendant was charged with Possession With Intent to Manufacture, Sell and Deliver a Schedule II Controlled Substance, Maintaining a Dwelling for the Keeping of Controlled Substances, and Possession of Drug Paraphernalia.

2. On [7 June 2010] Brandon West was appointed to represent [ ] Defendant.

3. [ ] Defendant is not a citizen of the United States of America and is an undocumented Defendant.

4. On [5 October 2010] [ ] Defendant pled guilty in Stokes County Superior Court to Possession of Cocaine, Maintaining a Dwelling for the Keeping of Controlled Substances and Possession of Drug Paraphernalia. The charges were consolidated and [ ] Defendant received a probationary sentence.

5. [ ] Defendant was advised by his attorney and by the Court that his plea to the felonies may result in his deportation from this country, his exclusion from this country or the denial of his naturalization under federal law.

6. [ ] Defendant's plea resulted in convictions that could be classified as "presumptively mandatory" deportation. [ ] [D]efendant did not understand and was not advised by Mr. West of this fact.

7. In 2017 [ ] Defendant was picked up and ultimately deported from the United States.

CONCLUSIONS OF LAW

1. Under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), giving incorrect advice regarding the immigration consequences of a guilty plea may constitute Ineffective Assistance of Counsel. The North Carolina Court of Appeals in State v. Nkiam, 243 N.C. App. 777, 778 S.E.2d 863 (2015) held that in cases where the deportation consequences of [a] defendant's plea were "truly clear" the trial counsel is required to "give correct advice" and not just to advise [a] defendant that his "pending criminal charges may carry a risk of adverse immigration consequences." Mr. West failed to do so. However, the Court must also examine whether there was actual prejudice to [ ] [D]efendant for Mr. West's failure to fully advise him.

2. The Court next considers the prejudice prong of [ ] [D]efendant's claim for IAC. The State argues that [ ] Defendant was not prejudiced because he was an undocumented [D]efendant and was subject to being deported at any time regardless of whether he was convicted of any crime in this case.

3. The question of prejudice in a case where the defendant is undocumented and already subject to deportation has not been directly addressed in North Carolina. However, many jurisdictions throughout the United States, both state and federal courts (including the 4th Circuit), have addressed the issue. There is an almost unanimous line of authority finding there is no showing of prejudice where, as in this case, the defendant was already subject to deportation. See [non-binding cases].

4. In this case, [ ] Defendant was here illegally without documentation. He was deported in 2017 nearly 7 years after his conviction. [ ] [D]efendant was subject to being deported regardless of his plea in this criminal case. [Defendant] did not show he was prejudiced by Mr. West's failure to tell him anything other than he may be deported if he pled guilty because he was already subject to deportation regardless of whether he was convicted in this case. [ ] Defendant could still have been subject to deportation even if he had been acquitted of the charges he pled guilty to. He was subject to deportation per se on account of his unlawful status. [ ] [D]efendant presented no evidence that in 2017 his fate would have been different had his defense counsel obtained a different disposition of his cases.

Therefore, [ ] Defendant has failed to prove he was prejudiced as a result of his attorney's lack of correct advice. As a result [ ] [D]efendant's motion for appropriate relief on the basis of ineffective assistance of counsel fails.

No findings of fact or conclusions of law in the 2019 Order directly resolve "whether [Defendant's] plea was knowingly and voluntarily entered." Similarly, no findings of fact or conclusions of law address Defendant's claims regarding mandatory detention, cancellation of removal, and/or inadmissibility.

ANALYSIS

"When considering rulings on motions for appropriate relief, we review the trial court's order to determine ‘whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.’ " State v. Frogge , 359 N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (quoting State v. Stevens , 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982) ). " ‘When a trial court's findings on a motion for appropriate relief are reviewed, these findings are binding if they are supported by competent evidence and may...