Opinion
No. COA12–27.
2012-07-3
STATE of North Carolina v. Mohamed Saleh AHMED.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. W. Gregory Duke for defendant-appellant.
On writ of certiorari by defendant from order entered 11 May 2011 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. W. Gregory Duke for defendant-appellant.
ELMORE, Judge.
Mohamed Saleh Ahmed (defendant) appeals from the trial court's order denying his motion for appropriate relief (MAR) in which he contended that his guilty plea was not voluntary and that he was denied effective assistance of counsel. We affirm the order of the trial court.
On 8 February 2007, defendant entered an Alford plea of guilty to one count of taking indecent liberties with a minor. Defendant received a suspended sentence of nineteen to twenty-three months and was placed on twenty-four months supervised probation. His probation has been completed.
On 8 February 2011, defendant filed an MAR in the trial court seeking to withdraw his guilty plea. Among other issues, he argued in the motion that his plea was not voluntary because the trial court failed to inform defendant that his plea may result in deportation, and that his trial counsel provided ineffective assistance by failing to inform defendant of the immigration consequences of his plea. By order entered 11 May 2011, the trial court denied the motion. Defendant petitioned this Court for a writ of certiorari, which was granted on 13 September 2011.
Defendant argues that the trial court erred in summarily denying his MAR where he presented a factual dispute about whether he understood the immigration consequences of his plea. He contends that since he was not informed by the trial court or his counsel that he would be subject to mandatory deportation as a result of his plea, he lacked information about the consequences of the plea, and thus his plea was not voluntary. He also contends that his counsel was ineffective pursuant to the decision of the United States Supreme Court in Padilla v. Kentucky, ––– U.S. ––––, 176 L.Ed.2d 284 (2010), for failing to advise him of possible deportation consequences. We are not persuaded.
Upon this Court's review of a trial court's ruling on an MAR, the trial court's “findings are binding if they are supported by competent evidence and may be disturbed only upon a showing of manifest abuse of discretion. However, the trial court's conclusions are fully reviewable on appeal.” State v. Lutz, 177 N.C.App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation and quotation marks omitted).
We first address defendant's contention that his counsel was ineffective for the reasons stated in Padilla. This Court recently held that the rule in Padilla is a new rule that is not to be applied retroactively. State v. Alshaif, ––– N.C.App. ––––, ––––, ––– S.E.2d ––––, –––– (2012). Since defendant's case was final in 2007, and Padilla was decided in 2010, Padilla is not applicable to defendant's case, and his claim of ineffective assistance of counsel based on the principle stated in Padilla has no merit.
Next, defendant contends that the trial court should have resolved the “factual dispute” regarding whether he understood the immigration consequences of his plea before denying his MAR. We disagree.
The transcript of plea signed by defendant includes the following question, “Do you understand that, if you are not a citizen of the United States of America, your plea(s) of guilty or no contest may result in deportation from this country, the exclusion from admission to this country, or the denial of naturalization under federal law?” Defendant's written answer, “Yes, sir” appears on the line next to this question. In conducting the plea colloquy, the trial court did not ask defendant the above question.
The trial court found in its order denying the MAR that “[d]efendant has failed to show that he was prejudiced by the court's omission of the question to [d]efendant regarding possible deportation as a result of a felony conviction as a non-US citizen.” The court also found, “[d]efendant's signed plea transcript shows that he was made aware of this fact and acknowledged understanding of the possible consequences of his plea.”
In general, a signed transcript of plea accompanied by a careful inquiry by the trial court is sufficient to show that a plea is entered into freely and voluntarily. State v. Crain, 73 N.C.App. 269, 272, 326 S.E.2d 120, 122 (1985). Here, although that the trial court did not question defendant orally about his awareness of the risk of deportation, the record evidence indicates defendant was aware of that risk as part of the plea process, despite his assertion to the contrary. He answered affirmatively on the transcript of plea that he understood one of the risks of entering the plea was deportation. Accordingly, we are unable to say that the trial court erred or abused its discretion in denying the MAR where its findings are supported by the record evidence.
Based on the foregoing, the trial court did not err in denying the MAR. Its order doing so is affirmed.
Affirmed. Judges HUNTER, Robert C., and McCULLOUGH concur.
Report per Rule 30(e).