State v. Saldana

Saldana pled guilty to possession of cocaine in 2005. The plea was taken pursuant to NCGS 90-96, under which no conviction is entered if a defendant completes a conditional discipline program from first-time drug offenders. After completing this program, Saldana believed he had a clean slate, and that the offense would result in no further consequences.

Although this is true in many respects, it is not the case with immigration. Under applicable immigration law, the plea still constitutes a drug conviction. As a result, Saldana loses various avenues to contest deportation, and is permanently barred from re-entry, thus permanently separating him from his US-citizen wife and their three children.

Saldana sought to withdraw his plea based on this information that was not known to him at the time, but his motion was denied by the trial court. Although the parties contest the appropriate standard (whether there was a fair and just reason to allow the plea withdrawal versus whether the failure to do so resulted in “manifest injustice”), the NCAJ amicus brief in the Court of Appeals contends that either burden is met here. The brief outlines the severe consequences of deportation and family separation, both generally and specifically with regard to Saldana’s family. Given the severity of the consequences, and the promise of a clean slate under North Carolina law, there was no knowing and voluntary waiver of his future immigration rights.