THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Francisco Roberto Rodriguez, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2020-000882 

Appeal From Spartanburg County 

G. Thomas Cooper Jr., Circuit Court Judge 

Opinion No. 6087 

Heard May 8, 2024 – Filed September 4, 2024 

AFFIRMED 

Appellate Defender Kathrine Haggard Hudgins, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson, Senior 

Assistant Attorney General Mark Reynolds Farthing and 

Assistant Attorney General Bryan TyJarris Hall, all of 

Columbia, for Respondent. 

THOMAS, J.: In this action for post-conviction relief (PCR), Francisco R. 

Rodriguez (Petitioner) argues the PCR court erred in finding he suffered no 

prejudice from plea counsel's failure to advise him that entering an Alford plea1 

1 North Carolina v. Alford, 400 U.S. 25, 37 (1970) (allowing a defendant to plead 

guilty without an admission of guilt). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

would result in mandatory deportation and a permanent ban on reentry to the 

United States. We affirm. 

Facts and Procedural History 

In 2016, Petitioner entered an Alford plea to third-degree criminal sexual conduct 

(CSC) with a minor. An interpreter translated the proceedings.2 The only mention 

on the record during the plea hearing regarding immigration consequences was by 

the State, who informed the court at the end of the hearing that it had contacted the 

federal authorities and it was uncertain of the immigration consequences. The plea 

court sentenced Petitioner to fifteen years in prison and ordered him to register as a 

sex offender. Petitioner did not file a direct appeal; however, he filed this 

application for PCR, which does not raise immigration consequences. Following 

an evidentiary hearing, the PCR court found plea counsel's failure to advise 

Petitioner that he would be deported if he entered the Alford plea constituted 

deficient performance pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). 

However, the PCR court found Petitioner was not prejudiced by this deficiency and 

denied relief. We granted Petitioner's petition for a writ of certiorari. 

Standard of Review 

"In [PCR] proceedings, the burden of proof is on the applicant to prove the 

allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 

514 (2008). "We defer to a PCR court's findings of fact and will uphold them if 

there is evidence in the record to support them." Smalls v. State, 422 S.C. 174, 

180, 810 S.E.2d 836, 839 (2018). "We review questions of law de novo, with no 

deference to trial courts." Id. at 180-81, 810 S.E.2d at 839. 

Law/Analysis 

Petitioner argues the PCR court erred in finding he suffered no prejudice from plea 

counsel's failure to advise him that entering the Alford plea would result in 

mandatory deportation and a permanent ban on reentry. We disagree. 

2 Petitioner, who is from Veracruz, Mexico, speaks only Spanish. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At the PCR hearing, Petitioner testified counsel knew he was from Mexico and 

counsel told him it would be possible he would be deported.3 Petitioner testified 

plea counsel never explained he would be placed on the sex offender registry or 

what that entails. He further testified plea counsel did not explain that a sexual 

crime against a child is considered a crime of moral turpitude or advise that by 

entering such a plea, Petitioner would "be banned completely from ever reporting 

legal status in the United States." 

Plea counsel testified, "I told him that immigration was probably gonna come and 

get him when his sentence was over no matter when it ended . . . and that they 

would use this conviction against him as a reason to deport him." When asked on 

cross-examination about whether he explained the immigration consequences that 

would result from the plea, plea counsel responded, "Yes, I'm sure I did. I told him 

that it would be used against him in a deportation proceeding if there was one." 

Plea counsel acknowledged the plea would completely bar Petitioner from ever 

legally entering the United States, but when asked whether Petitioner understood 

that by entering the plea he would not be permitted to return to raise his children, 

counsel responded, "I don't know if I ever told him he'd never be able to come back 

to the United States. I may not have gone over that with him, but he was very 

much aware that the immigration court would—you know, this would be used 

against him and he would probably be deported." 

We find the PCR court correctly found plea counsel was deficient in failing to 

explicitly advise Petitioner of the mandatory deportation and ban on reentry 

Petitioner faced if he entered this Alford plea. In Taylor v. State, our supreme 

court explained, "If the deportation consequences of a particular plea are unclear or 

uncertain, 'a criminal defense attorney need do no more than advise a non-citizen 

client that pending criminal charges may carry a risk of adverse immigration 

consequences.'" 422 S.C. 222, 225, 810 S.E.2d 862, 863 (2018) (quoting Padilla, 

559 U.S. at 369). "However, where the terms of the relevant immigration statute 

are 'succinct, clear, and explicit' in defining the removal consequence, counsel has 

an 'equally clear' duty to give correct advice." Id. (quoting Padilla, 559 U.S. at 

368-69). 

Here, the terms of the removal statutes are succinct, clear, and explicit in 

mandating Petitioner was deportable if convicted. See, e.g., 8 U.S.C.A. § 1227 

3 Petitioner interrupted the plea hearing eight times to ask questions and confer 

with his counsel. However, none of the interruptions appear to have been 

regarding immigration consequences. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)(2)(A)(i) (providing that an alien admitted to the United States "who (I) is 

convicted of a crime involving moral turpitude committed within five years (or 10 

years in the case of an alien provided lawful permanent resident status under 

section 1255(j) of this title) after the date of admission, and (II) is convicted of a 

crime for which a sentence of one year or longer may be imposed, is deportable"); 

8 U.S.C.A. § 1227 (a)(2)(E)(i) ("Any alien who at any time after admission is 

convicted of a crime of domestic violence, a crime of stalking, or a crime of child 

abuse, child neglect, or child abandonment is deportable."). Thus, plea counsel had 

a duty to give correct advice. See Taylor, 422 S.C. at 227, 810 S.E.2d 864 

("Pursuant to Padilla, counsel must do more than 'discuss immigration' or advise 

Petitioner he might face adverse immigration consequences."). Because plea 

counsel's advice that Petitioner might be deported was deficient, the PCR court 

correctly found deficient performance. 

However, the PCR court also found that although counsel was deficient for failure 

to inform Petitioner of the immigration consequences of his plea, Petitioner failed 

to prove prejudice because Petitioner "still would have taken the plea if [plea 

c]ounsel provided a more concrete answer regarding immigration consequences of 

the plea." The PCR court found the determinative factor in Petitioner's decision to 

enter the Alford plea was a lesser sentence. Although the PCR court's order states 

Petitioner "made clear the determinative factor in taking the plea was the shortened 

sentence, not any potential deportation consequences" and this finding is based on 

plea counsel's testimony rather than Petitioner's, we find evidence to support the 

PCR court's finding. See Lee v. United States, 582 U.S. 357, 369 (2017) ("Courts 

should not upset a plea solely because of post hoc assertions from a defendant 

about how he would have pleaded but for his attorney's deficiencies. Judges 

should instead look to contemporaneous evidence to substantiate a defendant's 

expressed preferences."); Smalls, 422 S.C. at 180, 810 S.E.2d at 839 ("We defer to 

a PCR court's findings of fact and will uphold them if there is evidence in the 

record to support them."). 

At the plea hearing, an interpreter was present. When the plea court asked 

Petitioner if he wanted to proceed to trial, Petitioner responded, "No. I want an 

Alford." Petitioner also affirmed he knew the plea would be treated like a guilty 

plea, he was receiving a beneficial result by accepting the Alford plea, no one 

forced him to plead, no one talked him into pleading, there was a substantial 

likelihood he would be convicted if he went to trial, and that he had plenty of time 

to talk with his lawyer. There were numerous instances when Petitioner was 

unclear during the plea hearing; however, each time the plea court permitted 

Petitioner to confer with counsel. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At the PCR hearing, plea counsel testified that he explained to Petitioner what an 

Alford plea was a day or two before the plea hearing with Petitioner being engaged 

and discussing the sentences others with similar offenses had received. Counsel 

testified he discussed trial strategy with Petitioner and Petitioner told him he did 

not want to proceed to trial because he did not want to risk the possibility of a 

twenty-five-year sentence. Further, counsel testified that although Petitioner asked 

numerous questions during the plea hearing, he never indicated he wanted a trial. 

Finally, albeit insufficient under Padilla, counsel did discuss the possibility of 

immigration consequences. 

Despite knowledge of the possibility of immigration consequences, Petitioner's 

testimony at the PCR hearing was primarily based on his other allegations of 

deficient performance by his plea counsel and only secondarily concerned with 

immigration consequences. When he was asked at the PCR hearing what relief he 

was seeking, he responded, "[a] new trial or a reduction of the time." The 

numerous interruptions during the plea hearing concerned the underlying facts and 

strength of the case against him, including counsel's investigation; the rights he 

was foregoing to plead; and one instance of explaining an Alford plea. None of the 

interruptions concerned immigration consequences. Although Petitioner's 

testimony supports the PCR court's finding that counsel's representation was 

deficient, Petitioner never testified that if counsel told him deportation was 

mandatory in his case he would have proceeded to trial. 

In Padilla, the court found "constitutionally competent counsel would have 

advised [Padilla] that his conviction for drug distribution made him subject to 

automatic deportation." 559 U.S. at 360. However, the court did not have to 

address whether counsel's incompetence prejudiced Padilla. Id. ("Whether 

[Padilla] is entitled to relief depends on whether he has been prejudiced, a matter 

that we do not address."). In Taylor, the court found prejudice. 422 S.C. at 233-

34, 810 S.E.2d at 867-68. However, in Taylor "it [was] uncontested that [Taylor] 

'would have rejected any plea leading to deportation.'" Id. at 233, 810 S.E.23d at 

867. Here, it is not clear that Petitioner would have rejected any plea offer leading 

to deportation. In our review of prejudice, we look only at whether "there is a 

reasonable probability that, but for counsel's errors, the defendant would not have 

pled guilty but would have insisted on going to trial." Id. We find Petitioner failed 

to meet his burden of proving there was a reasonable probability that he would 

have rejected the plea offer and insisted on going to trial had he been properly 

advised of the resulting immigration consequences. Thus, we affirm the PCR 

court's order denying relief. 
 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIRMED. 

VERDIN, A.J., concurs. 

MCDONALD, J., dissenting: While I agree with the majority that the PCR court 

correctly found plea counsel's failure to advise Petitioner of the deportation 

consequences of his Alford plea constituted deficient performance, I part company 

with the majority's affirmance of the finding that Petitioner was not prejudiced by 

this deficiency. Thus, I respectfully dissent. 

In his application for post-conviction relief, Petitioner claims: 

That the Applicant did not have an interpreter to explain 

the nature of the charge against him, his constitutional 

right to a jury trial, a defense, or of the exposure of time 

and consequence of the plea. If the Applicant had been 

advised in a manner that he could understand, he would 

have insisted on going to trial. 

Although plea counsel speaks "a little bit" of Spanish, Petitioner testified he did not 

fully understand everything his counsel said in their meetings leading up to his 

plea.4 Petitioner further alleged he neither understood the plea paperwork— 

because it was in English—nor the concept of an Alford plea. Even when 

Petitioner asked plea counsel "what [an Alford plea] was" during the taking of the 

plea, counsel "didn't explain it," "[h]e just said to accept it." 

Petitioner testified plea counsel never explained he would be placed on the sex 

offender registry or what that entails and "just told me that it would be possible for 

me to be deported." He further claimed plea counsel did not explain that by 

entering the plea, Petitioner "would be banned completely from ever reporting 

legal status in the United States." In my view, the repeated interruptions reflected 

in the plea transcript are important, as they support Petitioner's claim that he was 

confused throughout the proceeding. 

4 Plea counsel testified that while he can converse in Spanish, he "could not pass a 

college course in Spanish." 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Plea counsel testified that he reviewed all of the discovery with Petitioner and 

explained the concept of an Alford plea. He noted they "went over an Alford plea 

because [Petitioner] said he didn't do it and wasn't gonna admit to it." Although 

plea counsel stated he "did explain what an Alford plea was," I find more 

significant counsel's admission that Petitioner seemed "very confused" during the 

plea. When asked on cross-examination about whether he explained the 

immigration consequences that would follow as a result of the plea, counsel 

replied, "Yes, I'm sure I did. I told him it would be used against him in a 

deportation proceeding if there was one." When asked whether Petitioner 

understood that by entering the plea he would not be permitted to return to the 

United States to see his children, plea counsel responded: 

Well . . . I think I had asked him if there were any—if 

there was anything about the children that was 

exceptional or unusual in any regard. And I don't think 

there was, but I don't know if I ever told him he'd never 

be able to come to the United States. I may not have 

gone over that with him, but he was very much aware 

that the immigration court would—you know, this would 

be used against him and he would probably be deported. 

In Taylor, our supreme court explained, "If the deportation consequences of a 

particular plea are unclear or uncertain, 'a criminal defense attorney need do no 

more than advise a non-citizen client that pending criminal charges may carry a 

risk of adverse immigration consequences.'" 422 S.C. at 225, 810 S.E.2d at 863 

(quoting Padilla, 559 U.S. 356 at 369). "However, where the terms of the relevant 

immigration statute are 'succinct, clear, and explicit' in defining the removal 

consequence, counsel has an 'equally clear' duty to give correct advice." Id. 

(quoting Padilla, 559 U.S. 356 at 368-69). 

I agree with the majority that the terms of the applicable removal statutes are 

succinct, clear, and explicit in mandating Petitioner was deportable if convicted. 

But the problem here is that plea counsel himself did not appear to understand this 

consequence, and he admittedly did not adequately explain it to Petitioner. As the 

majority recognizes, the only reference to immigration consequences before the 

plea court was the prosecutor's brief reference to deportation at the end of the 

proceeding. Notably, when the State mentioned "deportation is not a real 

consequence unless this sentence is ninety days or more," the plea court made no 

inquiry as to whether Petitioner understood that his plea would result in mandatory 

deportation. Cf. United States v. Akinsade, 686 F.3d 248, 255 (4th Cir. 2012) 
 

 

 

 

 

 

 

 

 

 

 

 

 

(explaining that in order for a plea court's "admonishment to be curative, it should 

address the particular issue underlying the affirmative misadvice"). Thus, the 

conduct of the plea proceeding itself did not ameliorate the prejudice to Petitioner 

resulting from plea counsel's deficiency. 

The PCR court found the determinative factor in Petitioner's decision to enter the 

Alford plea was a lesser sentence.5 I agree with the majority that this finding is 

likely supported by plea counsel's testimony. Still, in light of Petitioner's clear 

confusion during the plea proceeding itself, there is at least a reasonable 

probability that Petitioner would have rejected the plea and insisted on going to 

trial had he been properly advised that his plea would result in mandatory 

deportation and a permanent ban on reentry.

6 See, e.g., United States v. Swaby, 

855 F.3d 233, 243 (4th Cir. 2017) (addressing prejudice in the context of Padilla 

deficient performance and finding the "likelihood of acquittal at trial is not the only 

factor a defendant considers, especially when the offered plea carries considerable 

collateral consequences. For example [the Fourth Circuit] has found prejudice 

when the defendant has 'significant familial ties to the United States and thus 

would reasonably risk going to trial instead of pleading guilty and facing certain 

deportation.'" (quoting Akinsade, 686 F.3d at 255)).7 

More concerning to me, though, is the transcript of the Alford plea itself. Although 

5 The PCR court's order of dismissal contains an error in its determinative factor 

finding. The order states, "Applicant made clear the determinative factor in taking 

the plea was the shortened sentence, not the potential deportation consequences." 

However, the cited portion of the record supporting this finding is plea counsel's 

testimony in response to the State's asking whether "Applicant indicated to you 

[plea counsel] that he wanted to plead before he went to the hearing." 

6 Further relevant to our consideration is plea counsel's statement at the PCR 

hearing that "looking back, maybe I should have just taken a lot more time with 

him to make sure he understood that it [the Alford plea proceeding] wasn't a trial." 

7 Unlike the circumstances in Taylor and Lee, this was not a "Hail Mary" situation. 

Cf. Taylor, 422 S.C. at 232-34, 810 S.E.2d at 867-68 (quoting Lee, 582 U.S. at 

1966-67). The State's case against Petitioner turned solely on the testimony of the 

minor. And, plea counsel testified before the PCR court as to his belief "that the 

parents of the victim might have some type of ulterior motive to make allegations 

in that they're not legally in the country and they might be looking for a new visa." 
 

 

 

Petitioner appeared to understand some of the proceeding, his eight interruptions 

for clarification—coupled with the admitted language barrier and lack of an 

interpreter for his intermittent consultations with counsel—should have alerted 

both plea counsel and the plea court that further inquiry was necessary to 

determine whether Petitioner truly understood the consequences of his plea. 

Because there is a reasonable probability that Petitioner would have rejected the plea 

and insisted on going to trial had he been properly advised of the resulting mandatory 

deportation and permanent ban on reentry to the United States, I would reverse the 

PCR court's order denying relief and remand for a new trial.