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Attorney’s ‘waffling’ warning was ineffective

 

A man who faces deportation after pleading guilty to drug charges received ineffective assistance of counsel because his attorney told him that he “may” be deported as a result of the plea even though federal law mandates removal for such a conviction, the North Carolina Court of Appeals has ruled. The court remanded the case for consideration of whether the client was prejudiced by the error.

In 2015, a Nash County jury indicted Ali Awni Said Marzouq for possession with intent to sell and deliver heroin and possession of a Schedule II controlled substance. He was also charged with maintaining a vehicle or dwelling place for the keeping or selling of controlled substances. 

He entered an Alford plea, and the court gave him a two-year suspended prison sentence. A year into his sentence, ICE took him into custody and started deportation proceedings. Marzouq filed a motion for appropriate relief (MAR), contending that his attorney didn’t make it clear to him that he would likely be deported if he pleaded guilty and had said only that it “might” happen, but his motion was denied.

But in a unanimous Dec. 3 opinion written by Judge Reuben Young, the Court of Appeals agreed with Marzouq that his legal counsel had been ineffective given that federal law says that an alien or permanent resident “shall” be deported if convicted of a state law regulating controlled substances. 

Young noted that under the U.S. Supreme Court’s 2010 decision in Padilla v. Kentucky and subsequent rulings by the North Carolina Supreme Court, it’s insufficient for an attorney to simply advise a client that there is a risk of deportation if that consequence is truly clear, and said where federal statute mandates removal, that means there is a presumption that deportation will happen.

“It is incumbent upon counsel, in a situation like this where deportation is presumed where a defendant pleads or is found guilty, to specify that deportation is probable, or presumptive,” Young wrote. “Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.”

But Young said that the record was insufficient to show whether Marqouz had truly been prejudiced by the error since the U.S. Department of Homeland Security contends that his is subject to removal based on both the conviction at issue and a 2016 conviction for possession of drug paraphernalia. The appeals court remanded the case for more fact-finding on this question.

The case presented one other unusual wrinkle for the court. Marzouq had represented to the trial court that he was a U.S. citizen, even though he is not, and the trial court ruled that this representation made his MAR request moot. Although the appeals court didn’t need to address the issue, it chose to do so in order to clarify that under state law, a judge accepting a guilty plea to a felony must, without exception, inform the defendant that the plea may result in deportation if he is not a U.S. citizen.

“No provision is made that permits the trial court to bypass one of these questions,” Young wrote. “Indeed, all are mandatory. It was therefore error for the trial court to determine that, where defendant asserted his citizenship, it was not necessary for the trial court to inform him of the risk of deportation.” (As it happened, the issue was moot because Marzouq waited too long to appeal his conviction on this grounds.)

Jim Melo of Tin Fulton Walker & Owen in Raleigh represented Marzouq on appeal. Melo said the opinion shows that judges must be very clear in their language when querying a defendant during a plea hearing and must follow proper procedure, rather than skip questions to hurry proceedings along. 

“They went out of their way to say ‘Hey, look judges, you need to ask the question as it is required by state statute,” Melo said.

The 11-page decision is State v. Marzouq (Lawyers Weekly No. 011-316-19). The full text of the decision is available online at nclawyersweekly.com.

Follow Bill Cresenzo on Twitter @bcresenzonclw

 


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