IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-294 Filed: 6 November 2018 Craven County, No. 96 CRS 205 STATE OF NORTH CAROLINA v. LEON BENNETT, Defendant. Appeal by the State from order entered 13 June 2017 by Judge Benjamin G. Alford in Superior Court, Craven County. Heard in the Court of Appeals 3 October 2018. Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee. STROUD, Judge. On issuance of a writ of certiorari, the State challenges an order granting defendant’s motion for reconsideration and motion for appropriate relief. Because the requirements for counsel to advise a defendant of the immigration consequences of a plea agreement established by Padilla do not apply retroactively, we reverse. In 1997, defendant pled no contest to possessing cocaine with the intent to sell or deliver. In 2015, defendant filed a motion for appropriate relief. Defendant alleged that at the time of his plea, “no factual basis existed in fact or in law to support that STATE V. BENNETT Opinion of the Court Defendant’s possession of cocaine was with intent to sell and/or deliver.” On 19 July 2016, at the hearing on the matter, defendant raised a claim under Padilla v. Kentucky, 559 U.S. 356, 176 L. Ed. 2d 284 (2010), and argued he was not informed of the impact his conviction would have on his immigration status, particularly the risk of deportation. The trial court specifically noted defendant was raising a ground not part of his filed MAR but allowed defendant to amend his written motion. On 22 July 2016, defendant filed his amended MAR, alleging that when he entered his plea, he was not advised, as required by Padilla, “that a criminal felony conviction could be a basis for deportation proceedings.” On 18 August 2016, the trial court entered an order denying defendant’s MAR. The trial court found that “Defendant was advised of the consequences regarding the possibility of deportation, exclusion from this country, and the denial of naturalization under federal law at the time the plea was entered, as evidenced by the transcript of plea contained in the court file[.]” The order also decreed that “Petitioner’s failure to assert any other grounds in his Motion is a BAR to any other claims, assertions, petitions, or motions he might hereafter file in this case, pursuant to N.C.G.S. §15A-1419[.]” (Emphasis in original). In 2017, defendant filed a motion to reconsider his amended MAR. Defendant’s motion for reconsideration alleged he was entitled to reconsideration under State v. Nkaim, 369 N.C. 61, 791 S.E.2d 457 (2016). The application of Padilla as discussed -2- STATE V. BENNETT Opinion of the Court in Nkaim was the only ground for reconsideration defendant alleged. The trial court held a hearing on the motion to reconsider on 1 June 2017, and on 13 June 2017, the trial court entered an order granting defendant’s motion for reconsideration and his MAR. The trial court ...
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