State v. Nkiam

• Citation: 778 S.E.2d 863,243 N.C.App. 777
• Decision Date: 03 November 2015
• Docket Number: No. COA14–1164.,COA14–1164.
• Parties: STATE of North Carolina v. Archimede N. NKIAM, Defendant.
• Court: Court of Appeal of North Carolina (US)

243 N.C.App. 777
778 S.E.2d 863

STATE of North Carolina
v.
Archimede N. NKIAM, Defendant.

No. COA14–1164.

Court of Appeals of North Carolina.

Nov. 3, 2015.

Attorney General, Roy Cooper, by Assistant Attorney General, Joseph L. Hyde, for the State.

Robert H. Hale, Jr. & Associates, Attorneys at Law, P.C., by Daniel M. Blau, Raleigh, for defendant-appellant.

GEER, Judge.

243 N.C.App. 777

Defendant Archimede N. Nkiam, an alien who had obtained permanent legal resident status in the United States, appeals from an order denying his motion for appropriate relief ("MAR") that, asserted a claim of ineffective assistance of counsel ("IAC") with respect to his guilty plea to two crimes that led to the initiation of deportation proceedings. On appeal, defendant argues that the trial court should have granted his MAR based on

243 N.C.App. 778

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which established that incorrect advice regarding the immigration consequences of a guilty plea may constitute IAC. We hold that the advice provided by defendant's counsel in connection with his plea did not comply with Padilla. Because the trial court did not specifically address the prejudice prong of defendant's IAC claim, we reverse the trial court's order denying defendant's MAR and remand for a determination whether defendant was prejudiced by the IAC and such further proceedings as are necessary.

Facts

Defendant was born on 5 January 1990 in the Democratic Republic of Congo ("DRC"). Defendant moved to the United States and settled in Raleigh with his family when he was about 11 years old. Defendant was admitted for an indefinite period as a returning asylee, and he later became a permanent resident of the United States after obtaining a green card.

On 24 February 2012, defendant was arrested in connection with an armed robbery of Jocqui Brown. On 16 April 2012, defendant was charged with having used a knife or pistol to commit armed robbery of Mr. Brown's personal property having a value of $50.00, including a cell phone and a ball cap. Defendant was also charged with conspiring with Terrence Mitchell and Leslie Martine to rob Mr. Brown. Attorney Deonte Thomas, a Wake County public defender, was assigned to represent defendant on the charges, and defendant met with Mr. Thomas several times about his case.

At a hearing on 7 January 2013, defendant appeared in Wake County Superior Court before Judge G. Wayne Abernathy to accept a plea offer that allowed him to plead guilty to aiding and abetting common law robbery, a Class G felony, and conspiracy to commit common law robbery, a Class H felony. After conducting a colloquy with defendant, Judge Abernathy accepted defendant's plea and sentenced him to two consecutive suspended sentences. For the aiding and abetting charge, defendant received a sentence of 13 to 25 months imprisonment, which was suspended and defendant was placed on 24 months of supervised probation. For the conspiracy charge, defendant was placed on an additional 24 months of supervised probation after suspension of a sentence of six to 17 months imprisonment.

Following defendant's guilty plea, the federal government initiated deportation proceedings against defendant. In January 2013, defendant was detained by immigration officials and transported to an immigration holding facility in Atlanta.

243 N.C.App. 779

On 3 April 2013, defendant filed an MAR asserting IAC that the trial court denied

778 S.E.2d 865

without a hearing on 1 May 2013. This Court granted defendant's petition for writ of certiorari, reversed the trial court's order, and remanded for an evidentiary hearing. On 15 November 2013, the trial court held an evidentiary hearing at which Mr. Thomas, defendant, defendant's father, and an immigration law expert, Hans Linnartz, testified. Following the hearing, the trial court entered an order making the following pertinent findings of fact.

The trial court found that, following his arrest, defendant received "at a minimum" the following information regarding the immigration consequences of his guilty plea:

a. Defendant was informed by his attorney prior to accepting the plea that there was at least a possibility it could result in his deportation from the United States;

b. Defendant reviewed and answered question # 8 on the Transcript of Plea form with his attorney, indicating that he was a permanent U.S. resident born in Congo, and that he understood his plea of guilty could therefore result in deportation from the country;

c. Judge Abernathy informed Defendant that his guilty plea "would make him subject to deportation," and his attorney responded by confirming that it could result in his deportation.

d. Defendant's attorney stated during the colloquy that he hoped the Defendant would not actually be deported, but also stated "we told him we can't do anything with that."

e. Judge Abernathy directly cautioned the Defendant that: i) his guilty plea could result in deportation; ii) the judge had no control over that in state court; and, iii) he could not make Defendant any promises about what would happen with his potential deportation.

f. During the colloquy, Defendant was asked three different times whether he understood that his plea could have immigration consequences, and each time the Defendant answered that he understood.

243 N.C.App. 780

The trial court then further found that defendant testified that if he had "been advised of the high likelihood that he would be deported as a result of his negotiated plea, he would not have accepted it." However, the trial court also found that "[i]n reviewing the overall reasonableness of Defendant's decision to accept the original plea agreement," there was a "sound factual basis for th[e] plea," including (1) anticipated testimony from the victim, Mr. Brown, identifying defendant, Mr. Mitchell, and Mr. Martine as being involved in the robbery, as well as their car, the weapons used, and the stolen property found in defendant's and his accomplices' possession; (2) evidence that officers apprehended defendant and the other two men 30 minutes after Mr. Brown reported the crime; and (3) Mr. Mitchell's agreement in exchange for a plea to testify that defendant was driving when the robbery was committed although Mr. Mitchell denied any weapons were used.

The trial court found that had defendant proceeded to trial on the robbery with a dangerous weapon charge, he could have been sentenced to 51 to 74 months in prison and would be subject to the same immigration consequences he now faces. On the other hand, the trial court acknowledged that defendant and his father both testified as to their fears of political and ethnic persecution if defendant were to return to DRC.

The trial court then determined that, given its review of defendant's testimony, the relevant immigration statutes, and Mr. Linnartz' testimony,

a. Defendant's conviction constituted an "aggravated felony" under 8 U.S.C. § 1101, since it carried a potential prison sentence of at least twelve months.

b. Defendant therefore became "removable" and subject to deportation by accepting the plea, pursuant to 8 U.S.C. § 1227, and he is not eligible for Asylum or Cancellation of Removal relief. 8 U.S.C. § 1229b ; 8 U.S.C. § 1158.

c. However, several other avenues of relief from deportation were (and in some cases still are) possible for Defendant, such as:

i. Withholding of Removal ( 8 U.S.C. § 1231 );

778 S.E.2d 866

ii. Appeal of a denial of Withholding to the Immigration Board of Appeals or the 11th Circuit Court of Appeals (8 CFE § 1003; 8 U.S.C. § 1252 );

243 N.C.App. 781

iii. Convention Against Torture ("CAT") Relief ( 8 C.F.R. § 208.16 );

iv. Stay of Removal on discretionary grounds ( 8 C.F.R. § 241.6 ).

Although these avenues were extremely difficult to achieve, according to Mr. Linnartz, defendant and his father had testified to the threat of political persecution in the Congo, and the trial court found defendant "therefore had a reasonable basis for asserting such a claim for relief."

Based on these findings of fact, the trial court concluded that for trial counsel to satisfy his responsibility to advise his client regarding the immigration consequences of a plea, Padilla's "final holding" was that counsel need only " ‘inform her client whether his plea carries a risk of deportation.’ " (Quoting Padilla, 559 U.S. at 374, 130 S.Ct. at 1486, 176 L.Ed.2d at 299 ). The trial court further concluded that "Defendant's assertion that he should have been advised he ‘would’ be deported rather than ‘could’ be deported is asking for a higher standard than the United States Supreme Court has set."

The trial court then distinguished Padilla on the grounds that counsel for the defendant in Padilla "incorrectly ‘provided him with false assurance that his conviction would not result in his deportation[,]’ " (quoting Padilla, 559 U.S. at 368, 130 S.Ct. at 1483, 176 L.Ed.2d at 295 ), whereas in this...