CORNELIA A. CLARK, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
In this post-conviction proceeding the petitioner alleged ineffective assistance of counsel based upon trial counsel's failure to advise him of the immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The petitioner also alleged that his plea was involuntary and unknowing because the trial court failed to comply with Tennessee Rule of Criminal Procedure 11(b)(1)(J). The post-conviction trial court denied post-conviction relief, and the Court of Criminal Appeals affirmed. We conclude that the record fully supports the post-conviction court's findings that trial counsel advised the petitioner he would be deported upon pleading guilty and that his guilty plea could have an adverse effect upon his ability to return legally to the United States. We also agree with the Court of Criminal Appeals that the trial court's failure to comply with Rule 11(b)(1)(J) was harmless beyond a reasonable doubt because the proof shows that the petitioner was aware his guilty plea would result in his deportation and could adversely affect his ability to return legally to the United States. Accordingly, we affirm the judgment of the Court of Criminal Appeals upholding the post-conviction court's denial of post-conviction relief.
On January 14, 2011, the petitioner, Juan Alberto Blanco Garcia, was charged in a multi-count indictment with six criminal offenses — two felonies and four misdemeanors. These charges were based on events that occurred in 2008 involving a seven-year-old girl and her three-year-old brother. The petitioner, an alien unlawfully within the United States, absconded when the police began investigating the charges in 2008, and he was not apprehended until 2011. The most serious criminal charge the petitioner faced was the class B felony of aggravated sexual battery, which carried a potential prison term of eight to twelve years. The remaining five charges were for child abuse and neglect and included one class E felony, which carried a potential prison term of one to six years, and four class A misdemeanors, with potential jail terms of eleven months and twenty-nine days.
On August 24, 2011, the petitioner pleaded guilty to the class E felony charge of child neglect of a child under the age of six years and to one of the four class A misdemeanor charges, specifically, child abuse of a child over six years of age. The remaining four charges were dismissed. The petitioner received a six-year sentence on the class E felony conviction, with the sentence suspended to probation on the condition that the petitioner have no contact with the female victim or her adoptive family. For the class A misdemeanor conviction, the petitioner received a consecutive sentence of eleven months and twenty-nine days at 75% and was credited with the time he had served in the Warren County Jail since December 9, 2010.
At the guilty plea submission hearing, the prosecution recited the following factual basis for the plea:
Before accepting the plea, the trial court addressed the petitioner in open court, with the aid of an interpreter. In response to the trial court's questioning, the petitioner confirmed that he had reviewed the written plea agreement and waiver of rights form with trial counsel and an interpreter and stated that he understood the documents, the charges against him, the minimum and maximum sentences that would apply to each charge were he convicted, and the rights he was waiving by pleading guilty. The petitioner responded "yes" when asked whether his guilty plea was made freely and voluntarily. The petitioner answered "no" when asked whether anyone had promised him anything or threatened him in anyway to convince him to plead guilty. Finally, when asked whether trial counsel had "tried to answer [his] questions for [him] and advise [him] about what [his] rights and options are and what may or may not happen if [he] did have a jury trial," the petitioner responded, "Yes. Each and every one." The trial court failed, however, to advise the petitioner of the immigration consequences of the plea or to inquire whether trial counsel had advised the defendant of "the immigration consequences of the plea," as required by Tennessee Rule of Criminal Procedure 11(b)(1)(J), which became effective July 1, 2011, less than two months before the petitioner's plea submission hearing.
On February 16, 2012, about six months after pleading guilty, the petitioner filed the petition for post-conviction relief from which this appeal arises. The petitioner alleged that his attorney was ineffective and his plea involuntary and unknowing because trial counsel and the trial court failed to inform him of the immigration consequences of his plea. The petitioner submitted an affidavit along with the petition, dated February 2, 2012, stating that he would "not be able to attend any hearings" on the petition because he was "incarcerated in Brooks County Detention Center in Falfarrias, Texas." The petitioner further stated that, although trial counsel "did a good job" and "helped" him "as much as she could," she "never informed [him] of a possible legal or immigration problem in the future if [he] took the deal." The petitioner stated that had he known his convictions "would bar [him] for life from applying for immigration benefits and from legalizing [himself]," he "would never have accepted their deal and would have taken it to the grand jury for trial."
At the time of the April 25, 2012 hearing on the post-conviction petition, the petitioner remained in federal custody in Texas. The record on appeal includes nothing to indicate that the petitioner sought either to attend and provide in-person testimony at the hearing or to present testimony by any other means.
However, Christa Lynn Blanco ("Mrs. Blanco"), a United States citizen and the petitioner's wife by the time of the hearing, testified on the petitioner's behalf.
Mrs. Blanco acknowledged that the petitioner was in the United States illegally when he entered the guilty plea and that ICE had already placed a detainer on the petitioner even before the plea was entered. Mrs. Blanco also confirmed that the petitioner's illegal status alone made him subject to immediate deportation, regardless of the plea. Nonetheless, she testified that trial counsel should have informed the petitioner that the plea would render him "inadmissible" to the United States in the future.
According to Mrs. Blanco, when she asked trial counsel whether [trial counsel] had discussed immigration with the petitioner, trial counsel "didn't give the specifics of what was discussed other than [to say] they discussed it." Mrs. Blanco agreed that she also consulted immigration attorneys about the effect of the plea, but they were unable to give her legal advice because she did not retain them. When pressed on cross-examination, however, Mrs. Blanco acknowledged that at least two of the immigration attorneys she consulted gave her information, which she passed along to the petitioner, to the effect that "a thing called [a] crime of moral turpitude ... would make him inadmissible and he needed to talk to [trial counsel] about it." These immigration attorneys did not tell Mrs. Blanco which criminal offenses were considered crimes of moral turpitude.
Mrs. Blanco agreed that, at the time of the post-conviction hearing, the petitioner's detention in federal custody resulted from an immigration violation. She explained the circumstances of the violation as follows:
Trial counsel, an assistant public defender, also testified at the post-conviction hearing. She explained that, because the petitioner faced imminent removal from the United States as a result of being present illegally in the United States, she was able to negotiate what was effectively a "time-served" plea agreement. Trial counsel recalled having "hours of conversation with [the petitioner] regarding the
Trial counsel recalled specifically advising the petitioner that he would be removed from the United States as a result of the plea, explaining "that is what happens here with just about any — in any type of situation where an illegal Hispanic is in jail. I mean for very minor offenses immigration always comes to get them after they enter their plea." Trial counsel stated that, at the time the petitioner entered the plea, he was already subject to an ICE detainer and knew that he faced immediate deportation. Trial counsel testified unequivocally that she told the petitioner "he would be deported."
Trial counsel also recalled advising the petitioner that a guilty plea could affect his ability to return legally to the United States and that he should consult an immigration attorney about this question. Trial counsel explained that her legal research indicated that "each district applie[d] the definitions [of crimes involving moral turpitude] differently[,] and so [she] did not know whether it would affect him in the future or not." According to trial counsel, the petitioner then "made it very clear to [her] that re-entry into the country legally was very, very expensive, ... and he expressed to [trial counsel] that he didn't know if he would be able to afford to do it legally...." Although trial counsel denied ever speaking with the petitioner and Mrs. Blanco together, she recalled advising Mrs. Blanco to consult an immigration attorney because she could not tell Mrs. Blanco what would "happen to [the petitioner] in the future with [the guilty plea] on his record."
At the conclusion of the hearing, the post-conviction court ruled from the bench, finding that the petitioner faced deportation, that trial counsel told him he would be deported, and that trial counsel responded appropriately to the petitioner's inquiries about whether the plea would affect his ability to return legally to the United States in the future. The post-conviction court also found that the petitioner had failed to offer any proof that having more information about the future immigration consequences of the guilty plea would have affected his decision to plead guilty.
On May 17, 2012, the post-conviction court entered a written order, consistent with its bench ruling, finding that the petitioner was aware of the ICE detainer and knew that he would be subject to immediate deportation upon entry of the plea; that the petitioner questioned trial counsel about the effect his plea would have on his future ability to return to the United States; that the answer to this question was unclear; that trial counsel fulfilled her obligation under Padilla when she advised the petitioner that his plea could affect his ability to return legally to this country; and that the petitioner had failed to offer any proof showing that he "would have acted any differently" had he received more specific information about the future immigration consequences of the plea. The post-conviction court did not address, in either its oral ruling or final written order, the petitioner's contention that his plea was unknowing and involuntary because the trial court failed to comply strictly with Tennessee Rule of Criminal Procedure 11(b)(1)(J) when accepting his guilty plea.
Under the Post-Conviction Procedure Act, relief "shall be granted when the conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States." Tenn.Code Ann. § 40-30-103 (2012). At a post-conviction hearing, the petitioner must prove factual allegations by clear and convincing evidence. Id. § -110(f). The two claims at issue in this appeal — ineffective assistance of counsel and involuntary and unknowing plea — are mixed questions of law and fact. Calvert v. State, 342 S.W.3d 477, 485 (Tenn.2011) (ineffective assistance of counsel); Ward v. State, 315 S.W.3d 461, 465 (Tenn.2010) (voluntary and knowing plea); Jaco v. State, 120 S.W.3d 828, 830 (Tenn.2003) (voluntary and knowing plea). Mixed questions of fact and law are reviewed de novo on appeal, with a presumption of correctness given only to the post-conviction court's findings of fact. Jaco, 120 S.W.3d at 830-31. The post-conviction court's application of the law to its factual findings is reviewed de novo, with no presumption of correctness accorded the post conviction court's conclusions of law. Smith v. State, 357 S.W.3d 322, 336 (Tenn. 2011); Calvert, 342 S.W.3d at 485; Jaco, 120 S.W.3d at 830.
Article I, section 9 of the Tennessee Constitution provides "[t]hat in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel...." Tenn. Const. art. I, § 9. Similarly, the Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the [a]ssistance of [c]ounsel for his defen[s]e." U.S. Const. amend. VI. These constitutional provisions guarantee a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975). To prevail on a claim of ineffective assistance of counsel, a petitioner must prove both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Felts v. State, 354 S.W.3d 266, 276 (Tenn.2011). This two-part test also applies when a petitioner challenges a guilty plea based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Calvert, 342 S.W.3d at 486.
Establishing deficient performance requires showing "that counsel's representation fell below an objective standard of reasonableness," which standard is measured by "professional norms" prevailing at the time of the representation.
However, courts may not judge counsel's performance using "20-20 hindsight." Hellard v. State, 629 S.W.2d 4, 9 (Tenn.1982). Rather, every effort should be made "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Mobley v. State, 397 S.W.3d 70, 81 (Tenn.2013); Goad v. State, 938 S.W.2d 363, 369 (Tenn.1996). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Strickland, 466 U.S. at 690, 104 S.Ct. 2052, and "the burden to `show that counsel's performance was deficient' rests squarely on the [petitioner]," Burt v. Titlow, 571 U.S. ___, ___, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052); see also State v. Burns, 6 S.W.3d 453, 462 (Tenn.1999) ("[A] reviewing court must be highly deferential and should indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.").
The second part of an ineffective assistance of counsel claim — prejudice — requires a petitioner to prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Vaughn v. State, 202 S.W.3d 106, 116 (Tenn.2006); Goad, 938 S.W.2d at 370. When assessing whether a petitioner challenging a guilty plea based on ineffective assistance of counsel has proven prejudice, a court
Hill, 474 U.S. at 59, 106 S.Ct. 366; see also Calvert, 342 S.W.3d at 486. A petitioner must establish both deficient performance and prejudice to prevail on a claim of ineffective assistance of counsel, and a court need not address both concepts if the petitioner fails to demonstrate either one of them. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; Goad, 938 S.W.2d at 370.
In this Court, the petitioner argues that trial counsel performed deficiently by failing to provide specific information about whether the plea would result in his deportation or bar his future legal admission into the United States. Trial counsel, the petitioner asserts, should have done more than advise that the plea could have future immigration consequences.
In response, the State contends that the record supports the post-conviction court's findings that trial counsel advised the petitioner that his plea would result in deportation because deportation was essentially
Resolution of the petitioner's claim of ineffective assistance of counsel is governed largely by the United States Supreme Court's 2010 decision in Padilla v. Kentucky. In that case, the defendant, Padilla, a legal permanent resident of the United States for forty years, faced federal drug charges for transporting a large amount of marijuana in his tractor-trailer in Kentucky. Padilla, 559 U.S. at 359, 130 S.Ct. 1473. Relying on his attorney's advice that he "did not have to worry about immigration status [in considering a plea to the charge] since he had been in the country so long[,]" Padilla pleaded guilty. Id. (internal quotation marks omitted). The attorney's advice proved erroneous, and Padilla's guilty plea to the drug offense made his deportation virtually mandatory. Id.
Padilla filed a petition for post-conviction relief, alleging that trial counsel failed to advise him that he could be deported as a result of his plea and had actually erroneously advised him not to worry about deportation because he had lived in the country so long. Id. The Kentucky Supreme Court denied the petition on the basis that deportation is merely a collateral consequence of a criminal conviction, id. at 359-60, 130 S.Ct. 1473; thus, even erroneous advice about deportation is insufficient to support a claim of ineffective assistance of counsel, id. at 360, 130 S.Ct. 1473.
The United States Supreme Court disagreed. Id. The Padilla Court acknowledged that many state and federal courts had held that defense counsel's failure to advise of the deportation consequences of a guilty plea was not cognizable as a claim of ineffective assistance of counsel because deportation was a collateral, not a direct, consequence of a criminal conviction. Id. at 365 & n. 9, 130 S.Ct. 1473. The Court pointed out, however, that it had never applied the distinction between collateral and direct consequences when evaluating whether counsel performed deficiently for purposes of an ineffective assistance of counsel claim. Id. at 365, 130 S.Ct. 1473. The Padilla Court declined to classify deportation "as either a direct or a collateral consequence" of a criminal conviction, explaining that the distinction is "ill-suited to evaluating a Strickland claim concerning the specific risk of deportation." Id. at 366, 130 S.Ct. 1473. Advice regarding deportation, the Court explained, "is not categorically removed from the ambit of the Sixth Amendment right to counsel." Id.
Thus, the Court applied Strickland to evaluate Padilla's ineffective assistance of
The Court cautioned, however, that "[i]mmigration law can be complex" and that there will be "numerous situations in which the deportation consequences of a particular plea are unclear or uncertain." Id. at 369, 130 S.Ct. 1473. "When the law is not succinct and straightforward," the Court explained, "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id.
Thus, in determining whether trial counsel performed deficiently, Padilla requires us to answer two questions: (1) whether deportation and the plea's effect on the petitioner's future eligibility to return legally to the United States were clearly defined consequences of the petitioner's guilty plea; and (2) if so, whether trial counsel properly advised the petitioner of these consequences.
With respect to deportation, the post-conviction court found that the petitioner was aware of the detainer ICE had already placed on him and knew that he would be subject to immediate deportation upon entering the guilty plea. The evidence in the record overwhelmingly supports these factual findings. Specifically, trial counsel testified that deportation was essentially a term of the time-served plea deal the petitioner received. Trial counsel testified unequivocally that she told the petitioner he would be deported upon pleading guilty. The evidence supports the post-conviction court's finding that trial counsel advised the petitioner he would be deported upon pleading guilty.
Nonetheless, even assuming for purposes of this appeal that Padilla requires defense counsel to give advice on this subject, the most that Padilla can fairly be interpreted as requiring in a situation such as this, when the law is not "succinct and straightforward," is a general warning that the plea may have adverse future immigration consequences. Id. at 369, 130 S.Ct. 1473. We agree with the post-conviction court's conclusion that trial counsel satisfied this obligation. Trial counsel testified that she conducted legal research and determined that there was no clear answer to the petitioner's question about how his plea would affect his future ability to return legally to the United States.
The petitioner contends that trial counsel should have been able to determine that Tennessee's crime of child abuse would amount to a crime involving moral turpitude under the Immigration and Nationality Act ("the Act") and should have advised the petitioner that his conviction of such a crime would bar his admission to this country. See 8 U.S.C.A. § 1182(a)(2)(A)(i)(I) (West, Westlaw through 2013 Legis. Sess.).
Trial counsel's testimony at the post-conviction hearing confirms the lack of legal
The foregoing proof supports the trial court's finding that there was no clear, succinct, and straightforward answer to the petitioner's question of how the plea would affect his future eligibility to return legally to the United States. Unlike the deportation question at issue in Padilla, the question in this case regarding the petitioner's ability to return to this country legally turned upon an interpretation of a provision of the Act broadly classifying crimes. As such, we agree with the post-conviction court's conclusion that trial counsel fulfilled her obligation by advising the petitioner that the guilty plea "may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369, 130 S.Ct. 1473.
Because we have concluded that the petitioner failed to establish that trial counsel performed deficiently, the petitioner's claim of ineffective assistance of counsel must fail, and we need not and do not address the concept of prejudice.
In the landmark case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that to satisfy the Due Process Clause of the United States Constitution, a guilty plea must be entered knowingly, voluntarily, and intelligently. Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Mackey, 553 S.W.2d 337, 340 (Tenn.1977), superseded on other grounds by Tenn. R.Crim. P. 37(b) and Tenn. R.App. P. 3(b). The Court explained that "[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Id. at 242, 89 S.Ct. 1709. By entering a guilty plea, the defendant waives certain constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront the witnesses. Boykin, 395 U.S. at 243, 89 S.Ct. 1709; Mackey, 553 S.W.2d at 339-40. "For this waiver to be valid under the Due Process Clause, it must be an intentional relinquishment or abandonment of a known right or privilege." Boykin, 395 U.S. at 243, n. 5, 89 S.Ct. 1709 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)) (internal quotation marks omitted). Given the loss of liberty or life at stake when a defendant pleads guilty, a trial judge must ensure that the waiver is valid by
Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 242 F.2d 101, 115 (5th Cir.1957)). As the Boykin Court put it, a plea is not "voluntary" if it is the product of "[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats." Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709. The standard is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Jaco, 120 S.W.3d at 831 (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)).
In addition to the procedure Boykin requires to ensure a knowing and voluntary waiver of constitutional rights, eight years after Boykin, this Court exercised its "supervisory power," Mackey, 553 S.W.2d at 340-41, and adopted additional safeguards, "as a matter of state law, in order better to assure that such pleas are entered voluntarily and intelligently." Blankenship, 858 S.W.2d at 903. Rule 11 of the Tennessee Rules of Criminal Procedure was promulgated one year after Mackey, in 1978, and prescribes "the approved procedure for accepting guilty pleas in the trial courts of this [S]tate." Blankenship, 858 S.W.2d at 903.
Unlike the three constitutional rights identified in Boykin, the additional processes for accepting a guilty plea that Mackey and Rule 11 require are not necessarily constitutionally based. See Ward v. State, 315 S.W.3d at 466-67 (recognizing that "[c]ourts are constitutionally required to notify defendants of only the direct consequences — not the collateral consequences — of a guilty plea" and holding that the sex offender registry requirement is a collateral consequence while the lifetime community supervision requirement for sexual offenders is a direct consequence); Howell v. State, 185 S.W.3d 319, 331 (Tenn.2006); Jaco, 120 S.W.3d at 831; State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989) ("Mackey mandated advice by the trial judge about the consequences of a guilty plea that went beyond the requirements of Boykin. ... That advice and any other requirement of Mackey in excess of Boykin is not based upon any constitutional provision, federal or state."). As such, an allegation that a trial court failed to follow either the Mackey procedure or Rule 11 does not necessarily establish a cognizable post-conviction claim because post-conviction relief is only available to remedy an abridgement of a state or federal constitutional right. Tenn.Code Ann. § 40-30-103; Johnson v. State, 834 S.W.2d 922, 925 (Tenn.1992) ("Whether the additional requirements of Mackey were met is not a constitutional issue and cannot be asserted collaterally."); Rigger v. State, 341 S.W.3d 299, 308 (Tenn.Crim.App.2010) (recognizing that the procedures embodied in Rule 11 and Mackey are not constitutionally based and stating that "the claim of a lack of information about these rights
In this case, the petitioner has not alleged that the trial court failed to inform him of the three constitutional rights at issue in Boykin. Rather, the petitioner alleges that the trial court failed to comply with Tennessee Rule of Criminal Procedure 11(b)(1)(J), which provides:
Tenn. R.Crim. P. 11(b)(1)(J).
The State agrees that the trial court failed to comply with Rule 11(b)(1)(J); however, the State asserts that the trial court's noncompliance amounted, at most, to harmless non-constitutional error. See Lane v. State, 316 S.W.3d 555, 565 (Tenn. 2010) (discussing the differences between constitutional and non-constitutional harmless error analysis). The State contends that "[c]ourts are constitutionally required to notify defendants of only the direct consequences — not the collateral consequences-of a guilty plea," Ward v. State, 315 S.W.3d at 467 (citing Brady, 397 U.S. at 755, 90 S.Ct. 1463.), that the immigration consequences of a guilty plea are collateral for purposes of the Due Process Clause, and that Padilla, which addressed only the obligations of defense counsel under the Sixth Amendment, did not abrogate this rule. Alternatively, the State argues that the error is harmless, even if it is evaluated by the more stringent constitutional standard, which imposes upon the State the burden of establishing that the error is harmless beyond a reasonable doubt.
In Lane, this Court discussed the harmless error analysis that applies when evaluating the effect of a trial court's erroneous failure to comply with Rule 11. 316 S.W.3d at 564-65. We explained that the level of harmless error review depends upon whether an omission from the Rule 11 advice litany amounts to non-constitutional or constitutional error. Id. at 565. If the omission involves advice that is not constitutionally required, a court inquires whether the error was prejudicial. Id. On the other hand, if the omission amounts to constitutional error, a court must determine whether the State has established that the error was harmless beyond a reasonable doubt. Id.
Although the State is correct in its assertion that several courts have refused to interpret Padilla as imposing a Due Process obligation on trial courts to inform defendants of the immigration consequences of guilty pleas,
Here, trial counsel testified unequivocally that she advised the petitioner he would be deported upon pleading guilty and that his guilty plea could have an effect upon his future eligibility to return legally to the United States. The post-conviction court accredited trial counsel's testimony. Additionally, Mrs. Blanco's testimony concerning the information she received from immigration lawyers and passed on to the petitioner before he pleaded guilty corroborates trial counsel's testimony that she advised the petitioner to consult immigration lawyers about this question and also indicates that the petitioner was aware his plea could have an adverse impact upon his ability to return legally to the United States.
Because trial counsel did not perform deficiently and the trial court's failure to comply with Rule 11(b)(1)(J) was harmless beyond a reasonable doubt, we affirm the judgment of the Court of Criminal Appeals upholding the trial court's denial of the petition for post-conviction relief alleging ineffective assistance of counsel and an unknowing and involuntary guilty plea. Costs of this appeal are taxed to the State of Tennessee, for which execution may issue if necessary.
