Opinion
No. COA12–109.
2012-10-2
STATE of North Carolina v. Wilfredo RUBIO.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
On writ of certiorari from order entered 29 September 2010 by Judge Charles P. Bullock in Lee County District Court. Heard in the Court of Appeals 13 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Benjamin Dowling–Sendor, for Defendant-appellant.
HUNTER, JR., Robert N., Judge.
The State of North Carolina (the “State”) applied for the issuance of a writ of certiorari to review a 29 September 2010 order of the Lee County District Court vacating the guilty plea and subsequent guilty verdict of Wilfredo Rubio (“Defendant”). This Court allowed the petition by order dated 10 August 2011. Upon review, we reverse the order of the trial court.
I. Facts & Procedural History
On 12 December 2007, Defendant was charged with possession with intent to sell or deliver cocaine (N.C.Gen.Stat. § 90–95(a)), sale or delivery of cocaine (N.C.Gen.Stat. § 90–95(a)(1)), and possession of drug paraphernalia (N.C.Gen.Stat. § 90–113.22)). As part of a plea agreement, on 11 June 2008 Defendant pled guilty to one count of delivery of cocaine in violation of N.C. Gen.Stat. § 90–95(a)(1) and was sentenced as a class H level I felon to a 5–6 month term, which was suspended for 30 months and subject to certain conditions.
Defendant is a citizen of Honduras who had lawful permanent resident status in the United States. As part of his guilty plea, Defendant indicated that he understood that “if [he is] not a citizen of the United States of America, [his] plea(s) of guilty or no contest may result in [his] deportation from this country, [his] exclusion from admission to this country, or the denial of [his] naturalization under federal law.” After his 11 June 2008 sentencing, Defendant was taken into custody by Immigration and Customs Enforcement and placed in removal proceedings.
On 19 August 2010, Defendant filed a Motion for Appropriate Relief in Lee County District Court, claiming he had received ineffective assistance of counsel during his criminal proceedings. In his motion, Defendant extensively referenced the March 2010 U.S. Supreme Court decision of Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473 (2010), which held a criminal defendant could raise a valid Sixth Amendment ineffective assistance of counsel claim if the defendant's counsel did not advise the defendant of the potential adverse immigration consequences of a guilty plea. Id. at ––––, 130 S.Ct. at 1482. In response to Defendant's motion, the Lee County District Court entered an interlocutory order on 29 September 2010 vacating Defendant's guilty plea and subsequent guilty verdict and resetting the case for a new trial.
On 21 July 2011, the State submitted a Petition for Writ of Certiorari to this court seeking review of the District Court's order. We granted the State's petition on 10 August 2011.
II. Jurisdiction & Standard of Review
“A trial ‘court's ruling on a motion for appropriate relief pursuant to G.S. 15A–1415 is subject to review ... [i]f the time for appeal has expired and no appeal is pending, by writ of certiorari.’ “ State v. Morgan, 118 N.C.App. 461, 463, 455 S.E .2d 490, 491 (1995) (quoting N.C. Gen.Stat. § 15A–1422(c)(3) (1988)).
“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)). “Findings of fact ‘made by the trial court pursuant to hearings on motions for appropriate relief’ are binding on appeal if they are supported by competent evidence.” State v. Morganherring, 350 N.C. 701, 714, 517 S.E.2d 622, 630 (1999) (quoting State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982)). “Conclusions of law are reviewed de novo and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004) (“Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.”).
III. Analysis
In its brief, the State argues Defendant was not denied effective assistance of counsel. Specifically, the State contends the United States Supreme Court's decision in Padilla v. Kentucky does not apply retroactively to a North Carolina criminal case that had already become final. Alternatively, the State argues that even if Padilla does apply retroactively, the advice of Defendant's lawyer did not rise to the level of ineffective assistance of counsel. We find Padilla does not apply retroactively in North Carolina and reverse the District Court's order. Because we so find, there is no need to address the second issue.
A. Retroactivity of Padilla v. Kentucky
The State first argues that because Defendant's case became final in 2008, the 2010 decision of Padilla v. Kentucky does not apply to the present case. Based on this court's precedent, we agree and reverse the decision of the trial court.
Recently this court in State v. Alshaif, ––– N.C.App. ––––, 724 S.E.2d 597 (2012), resolved the very issue Defendant raises on appeal. We are bound by that decision. As the North Carolina Supreme Court has described, “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
The defendant in Alshaif was a lawful permanent resident of the United States who was arrested for assault with a deadly weapon inflicting serious injury. Alshaif, ––– N.C.App. at ––––, 724 S.E.2d at 599. After consulting with counsel, the defendant pled guilty as part of a plea deal. Id. at ––––, 724 S.E.2d at 598. The defendant subsequently faced deportation proceedings and asserted an ineffective assistance of counsel claim because his lawyer did not advise him about the immigration consequences of his guilty plea. Alshaif, ––– N.C.App. at ––––, 724 S.E.2d at 599.
In Alshaif, our court first found that Padilla creates a new rule of criminal procedure, rather than simply applying the existing Strickland standard to new facts. Id. at ––––, 724 S.E.2d at 602–03. This court then applied the test outlined in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), for retroactivity of new rules. Alshaif at ––––, 724 S.E.2d at 603–04. Under the first part of the Teague test, we determined “[t]he rule in Padilla is procedural, not substantive. It regulates the manner in which a defendant arrives at a decision to plead guilty.” Id. at ––––, 724 S.E.2d at 603 (quoting U.S. v.. Chang Hong, 671 F.3d 1147, 1157 (2011))(internal quotation marks omitted). In accordance with the second part of the Teague test, our court then determined that the rule in Padilla was not “necessary to prevent an impermissibly large risk of an inaccurate conviction” and did not “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Id. (internal quotation marks and citations omitted). Consequently, we held that Padilla does not apply retroactively because it creates a new constitutional rule and “does not fall within either of the Teague exceptions.” Id. at ––––, 724 S.E.2d at 604.
Defendant acknowledges the status of Alshaif as controlling precedent but argues we should delay our decision until the U.S. Supreme Court decides the issue at hand. Specifically, Defendant contends that because the case of Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), which is currently pending before the U.S. Supreme Court, involves the same issues as the present case, we should defer our decision in the interest of judicial economy until the U.S. Supreme Court decides that case. At issue in Chaidez is whether Padilla creates a new constitutional rule subject to Teague analysis for retroactivity, or whether Padilla is automatically retroactive as an interpretation of the well-established Strickland rule for ineffective assistance of counsel. Id. at 688. In Chaidez, the Seventh Circuit found that Padilla established a new rule subject to the Teague test. Id. at 694. Since “[t]he parties agree[d] that if Padilla announced a new rule neither exception to non-retroactivity applies[,]” the Seventh Circuit did not provide detailed analysis of the application of the Teague exceptions in that case. Id. at 688. The U.S. Supreme Court granted certiorari in Chaidez, ––– U.S. ––––, 132 S.Ct. 2101 (2012), on 30 April 2012 and will hear oral arguments for the case on 30 October 2012, October 2012 Term–Granted and Noted List, Supreme Court of the United States, http:// www.supremecourt.gov/orders/12grantednotedlist.pdf. After careful consideration, we do not find Defendant's argument in support of his request that we defer our decision in this case persuasive.
Accordingly, we find State v. Alshaif's thorough analysis of Padilla's non-retroactivity controls in the present case. We reverse the order of the trial court and decline to issue a stay.
B. Ineffective Assistance of Counsel
The State further argues that even if Padilla does apply retroactively, the advice of Defendant's lawyer did not rise to the level of ineffective assistance of counsel. Because we follow Alshaif's precedential holding and find Padilla does not apply retroactively in North Carolina, we decline to analyze this argument in the present case.
IV. Conclusion
Consequently, we conclude Padilla v. Kentucky does not apply retroactively to Defendant's case. The trial court erred in granting Defendant's Motion for Appropriate Relief and the trial court's order is
Reversed. Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).