Plea Advice Required Deportation Warning, S.C. High Court Says

A criminal defense lawyer provided ineffective representation when he failed to advise his client of the risk of deportation in pleading guilty to a drug offense, the South Carolina Supreme Court said.

The state’s highest court found in a Feb. 28 decision that that Gregg Taylor, a Jamaican with a wife and children who are U.S. citizens, demonstrated “reasonable probability” that, absent the attorney’s errors, he would have insisted on going to trial. Taylor was deported to Jamaica after pleading guilty to a marijuana possession charge.

In making its ruling, the South Carolina Supreme Court found that a post-conviction relief court failed to properly apply the 2010 U.S. Supreme Court ruling in Padilla v. Kentucky, which requires lawyers to warn clients if a guilty plea carries a risk of deportation. Federal law specifies that drug violations other than for possession of 30 grams or less of marijuana for personal use are deportable.

“Pursuant to Padilla, counsel must do more than ‘discuss immigration’ or advise petitioner he might face adverse immigration consequences,” according to the South Carolina Supreme Court. Rather, the deportation issue must be clearly described and not addressed as a “collateral issue,” the state’s highest court said.

‘Affirmative Misadvice’

The case mirrors other state court decisions holding that “affirmative misadvice” can be grounds for an ineffective assistance of counsel claim, Jeremy McKinney, an attorney based in Greensboro, N.C., who currently serves as the national secretary for the American Immigration Lawyers Association, told Bloomberg Law Feb. 28.

In following Padilla, the South Carolina Supreme Court also “reminds us all that in contemplating any plea to a criminal offense, evaluating the risk of deportation is far from a ‘collateral matter’,” according to McKinney. “Permanent exile from family, friends, and community often outweighs any criminal punishment a court may impose,” he said.

In its decision, the South Carolina Supreme Court also found that a general warning by the plea court failed to cure the lawyer’s deficient representation of Taylor.

Although the state’s highest court said that a plea court’s standard colloquy can often correct “a multitude of deficiencies by counsel,” that was not the case in the matter at hand. “The meaning of Padilla would be negated if we allowed general comments from the plea court to satisfy the specific requirements imposed on counsel under the Sixth Amendment,” the high court said in finding in favor of Taylor and reversing the lower court’s judgment.

Mark J. Devine, an attorney based in Charleston, S.C., represented Taylor before the state supreme court. He declined to comment on the ruling.

Representatives of the state attorney general’s office didn’t immediately respond to requests for comment.

The case is Taylor v. State, 2018 BL 66971, S.C., No. 27769, 2/28/18.

To contact the reporter on this story: Andrew M. Ballard in Raleigh, N.C. at

To contact the editor responsible for this story: C. Reilly Larson at