State v. Addaquay

807 S.E.2d 413, 302 Ga. 412
CourtSupreme Court of Georgia
DecidedOctober 30, 2017
DocketS17A1046
StatusPublished
Cited by2 cases

This text of 807 S.E.2d 413 (State v. Addaquay) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Addaquay, 807 S.E.2d 413, 302 Ga. 412 (Ga. 2017).

Opinion

HINES, Chief Justice.

The State appeals from the habeas court’s order granting relief to appellee Thomas Addaquay on the ground that his plea counsel was [413]*413constitutionally ineffective in incorrectly advising him of the immigration consequences of his plea of guilty For the reasons that follow, we reverse.

1. In 2012, Addaquay pled guilty to criminal damage to property in the second degree under OCGA § 16-7-23 (a) (1)1 for conduct that occurred in 2002 and was sentenced as for a misdemeanor, as permitted under OCGA § 17-10-5, to 11 months and 29 days on probation. At that time, Addaquay was a lawful permanent resident of the United States, a status evidenced by the issuance of a “green card” to him. See United States v. Sonmez, 777 F3d 684, 686, n.1 (4th Cir. 2015) (“If the alien is granted lawful permanent resident status, the government issues the alien a Permanent Resident Card, commonly called a ‘green card.’ ”); Ramirez-Chacon v. Holder, 397 Fed.Appx. 179, 182, n.1 (6th Cir. 2010) (explaining that a “greencard” is “merely evidence or proof” of an alien’s status as a lawful permanent resident and that the expiration of a “green card” does not alter that status). In 2015, Addaquay filed a petition for habeas corpus relief, contending that his plea counsel provided constitutionally ineffective assistance because he misinformed Addaquay that his plea of guilty to a felony would not affect his immigration status. At the February 2016 habeas hearing, Addaquay testified that he had been a legal resident of the United States since 1995 and that his current “green card” was up for renewal. He added that, during the plea negotiations, he told his plea counsel that his “primary concern was remaining in the country legally,” and that his counsel told him that ifhe pled guilty under OCGA § 16-7-23 (a) (1) and was sentenced as for a misdemeanor, “it wasn’t going to affect [his] immigration consequences, and [he] wasn’t going to be deportable.” According to Addaquay, he had recently spoken to an immigration attorney who told him that the guilty plea would prevent him from being able to renew his “green card” and to pursue an application for citizenship. At the hearing, Addaquay’s counsel argued that, although Addaquay was sentenced as for a misdemeanor, he pled guilty to a felony and that under immigration law, he could not renew his “green card” and was deportable and that counsel performed deficiently in misinforming him about that consequence. Emphasizing that, where “the law is clear that deportation is mandatory . . . , an attorney has a duty to accurately advise his client of that fact,” the habeas court ruled that [414]*414Addaquay was deportable as a result of his plea of guilty, that plea counsel performed deficiently in telling Addaquay that he would not be deportable, and that, but for plea counsel’s misinformation, there is a reasonable probability that Addaquay would not have pled guilty but rather would have proceeded to trial.

2. To prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, a defendant must show that his counsel’s performance “ ‘was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty.’ ” Frazier v. Mathis, 286 Ga. 647, 648 (690 SE2d 840) (2010) (citation omitted). The burden to “show that counsel’s performance was deficient rests squarely on the defendant.” Burt v. Titlow, 571 U. S. 12, 22-23 (134 SCt 10, 187 LE2d 348) (2013) (citation and punctuation omitted).

With regard to immigration consequences, the United States Supreme Court held, in Padilla v. Kentucky, 559 U. S. 356 (130 SCt 1473, 176 LE2d 284) (2010), that the Sixth Amendment’s guarantee of effective assistance of counsel protects a criminal defendant from erroneous advice about deportation, id. at 366, and that a defendant establishes Strickland's deficient performance prong by showing that counsel failed to accurately advise the defendant when the immigration consequences of a guilty plea “could be easily determined from reading the removal statute [8USC § 1227]Id. at 368-369. In that case, counsel provided his client with the false assurance that his guilty plea would not lead to his deportation. The Supreme Court acknowledged that immigration law can be “complex,” and that where the law is unclear or discretionary, it may be sufficient to advise a client that he “may” face deportation. The Padilla Court emphasized, however, that where the deportation consequences of a plea are “truly clear . . . the duty to give correct advice is equally clear.” Id.

Encarnacion v. State, 295 Ga. 660, 661 (763 SE2d 463) (2014).

Here, based on Padilla, Addaquay did not claim that the deportation consequences of his plea were unclear or uncertain, but instead claimed that he was clearly deportable based on his plea of guilty to criminal damage to property in the second degree and that plea counsel performed deficiently in telling him that he would not be deported. The State argues, however, that Addaquay failed to show [415]*415that he is deportable under the removal statute, 8 USC § 1227,2 and we agree.

To begin, in response to the State’s merits brief, Addaquay fails to discuss the removal statute or argue that any provision of it requires his deportation. His arguments to the habeas court suffered from the same fault, and the habeas court’s order did not cite to any statute that supported its finding that Addaquay was deportable. Addaquay hinged his case on his testimony that an immigration lawyer told him that he could not renew his “green card” because of the conviction, and the habeas court concluded that he therefore could be deported. However, whether an offense constitutes a deport-able crime “is a question of law subject to de novo review.” Ildefonso-Candelario v. Atty. Gen. of the United States, 866 F3d 102, 104 (3d Cir. 2017).

(a) The removal statute authorizes the removal of an alien on numerous grounds, and a conviction for violating OCGA § 16-7-23 (a) (1) could perhaps constitute a deportable offense under two provisions of 8 USC § 1227. First, under 8 USC § 1227 (a) (2) (A) (iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” The Immigration and Naturalization Act (INA) contains a long list of offenses that constitute aggravated felonies. See 8 USC § 1101 (a) (43) (A)-(U). The one relevant to a conviction under OCGA § 16-7-23 (a) (1) is “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 USC § 1101 (a) (43) (F).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

The STATE v. ADDAQUAY
Supreme Court of Georgia, 2017
Dowdy v. State
285 S.E.2d 764 (Court of Appeals of Georgia, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
807 S.E.2d 413, 302 Ga. 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-addaquay-ga-2017.