State v. Sanmartin Prado ( 2016 )

State of Maryland v. Juan Carlos Sanmartin Prado, No. 100, September Term, 2015
PLEA OF NOT GUILTY BY WAY OF AN AGREED STATEMENT OF FACTS –
IMMIGRATION CONSEQUENCES – DEPORTATION – PADILLA V.
KENTUCKY, 559 U.S. 356 (2010) – INEFFECTIVE ASSISTANCE OF COUNSEL
– CONSTITUTIONALLY DEFICIENT PERFORMANCE – Court of Appeals held
that, where the coram nobis court found that defense counsel advised the defendant that
“this was a ‘deportable offense’ and [the defendant] ‘could be deported . . . if the federal
government chose to initiate deportation proceedings,’ and it was ‘possible’ that the
[defendant] would be deported[,]” and where defense counsel testified that he also advised
the defendant that “there could and probably would be immigration consequences” and
“that it was a deportable or a possibly deportable offense,” and the advice was given before
a plea of not guilty by way of an agreed statement of facts proceeding, such advice was not
constitutionally deficient, but rather was “correct advice” about the “risk of deportation,”
as required by Padilla v. Kentucky, 559 U.S. 356, 369, 374 (2010).
Circuit Court for Baltimore County
Case No. 03-K-10-003295
Argued: June 1, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 100
September Term, 2015
______________________________________
STATE OF MARYLAND
v.
JUAN CARLOS SANMARTIN PRADO
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Rodowsky, Lawrence F. (Retired,
Specially Assigned)
Battaglia, Lynne A. (Retired,
Specially Assigned),
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: July 11, 2016
In Padilla v. Kentucky, 559 U.S. 356, 374, 369 (2010), the Supreme Court held for
the first time that, pursuant to the Sixth Amendment right to counsel, “counsel must inform
[his or] her client whether his [or her] plea carries a risk of deportation[,]” and that, “when
the deportation consequence is truly clear, . . . the duty to give correct advice is equally
clear.” After Padilla, in Denisyuk v. State, 422 Md. 462, 466, 30 A.3d 914, 916 (2011),
this Court held, in relevant part, that “defense counsel’s failure to advise [the defendant] of
the deportation consequence of his guilty plea was constitutionally deficient[,]” and that,
“based on the record developed at the postconviction hearing and the [postconviction]
court’s express finding on the subject, [] counsel’s deficient performance prejudiced [the
defendant].” Additionally, in the wake of Padilla, courts in other jurisdictions have held
that a defendant’s counsel’s performance was constitutionally deficient where the
defendant’s counsel either failed to advise the defendant whatsoever of the immigration
consequences of the defendant’s guilty plea, or affirmatively misadvised the defendant
about the immigration consequences of the defendant’s guilty plea. Murkier, however, are
the waters where a defendant’s counsel advises that an offense is deportable and uses
“qualifying” words—such as “very likely be deported,” Chacon v. State, 409 S.W.3d 529,
532 (Mo. Ct. App. 2013) (emphasis omitted), or “strong chance” of being deported, State
v. Shata, 868 N.W.2d 93, 96 (Wis. 2015)—when advising a defendant of the immigration
consequences attendant to a plea.
In this case, we must decide whether defense counsel’s advice—that there “could
and probably would be immigration consequences” for the defendant’s conviction for
second-degree child abuse because it was a “deportable” or “possibly deportable”
offense—was constitutionally deficient because defense counsel “qualified” his advice, or
was correct advice that adequately informed the defendant of the risk of deportation. We
hold that, where the coram nobis court found that defense counsel advised the defendant
that “this was a ‘deportable offense’ and [the defendant] ‘could be deported . . . if the
federal government chose to initiate deportation proceedings,’ and it was ‘possible’ that
the [defendant] would be deported[,]” and where defense counsel testified that he also
advised the defendant that “there could and probably would be immigration consequences”
and “that it was a deportable or a possibly deportable offense,” and the advice was given
before a plea of not guilty by way of an agreed statement of facts proceeding, such advice
was not constitutionally deficient, but rather was “correct advice” about the “risk of
deportation,” as required by Padilla, 559 U.S. at 369, 374.
BACKGROUND
On June 8, 2010, Juan Carlos Sanmartin Prado (“Sanmartin Prado”), Respondent, a
citizen of Ecuador and a legal permanent resident of the United States, was charged by
criminal information filed in the Circuit Court for Baltimore County (“the circuit court”)
with first-degree child abuse causing severe physical injury, second-degree child abuse,
and second-degree assault against his three-year-old daughter. On January 6, 2011,
Sanmartin Prado pleaded not guilty by way of an agreed statement of facts to Count 2,
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second-degree child abuse,1 pursuant to an agreement with the State.2 At that time,
Sanmartin Prado’s trial counsel (“trial counsel”) engaged in a waiver colloquy with
Sanmartin Prado; and the following exchange occurred as to Sanmartin Prado’s
immigration status:
[TRIAL COUNSEL]: And understand what -- we have had discussions with
respect to your immigration status.
Is that correct?
1
Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) § 3-601(d), concerning
second-degree child abuse, provides now, as it did then:
(1) (i) A parent or other person who has permanent or temporary care or
custody or responsibility for the supervision of a minor may not cause abuse
to the minor.
(ii) A household member or family member may not cause abuse to a
minor.
(2) Except as provided in subsection (c) of this section, a person who violates
paragraph (1) of this subsection is guilty of the felony of child abuse in the
second degree and on conviction is subject to imprisonment not exceeding
15 years.
2
At the January 6, 2011 proceeding, the prosecutor explained the plea agreement as
follows:
It is my understanding that we are proceeding by way of a not guilty
agreed statement of fact to count two, which charges [Sanmartin Prado] with
second[-]degree child abuse.
Upon a finding of guilt, the [S]tate is recommending a period of ten
years[’] incarceration to the Division of Corrections. The State will ask that
all be suspended except for 12 months.
Furthermore, upon a finding of guilt, the State will nol pros the
balance of the charges. The State is seeking supervised probation upon
[Sanmartin Prado]’s release from incarceration and the State is seeking that
[Sanmartin Prado] successfully complete the physical offenders program
through the Department of Social Services.
-3-
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: You have a green card and you have been a permanent
resident of the United States for over twelve years, is that correct?
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: You are not under an active deportation order?
[SANMARTIN PRADO]: No.
[TRIAL COUNSEL]: And there’s no immigration detainer that we are aware
of.
Is that correct?
[SANMARTIN PRADO]: That’s correct.
[TRIAL COUNSEL]: And you understand that I’m not making any promises
and the [circuit court] is not making any promises about what the federal
government could possibly do in the future with respect to reviewing this
conviction.
Is that correct?
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: And you still wish to proceed this morning?
[SANMARTIN PRADO]: Yes, sir.
Thereafter, the circuit court announced that “Sanmartin Prado ha[d] waived his rights to a
jury trial and to a Court trial in this matter, and that he ha[d] done so voluntarily and
understanding the rights that he has.”
The State then read into the record the following agreed statement of facts:
[O]n April 28th, 2010, the Crimes Against Children’s Unit of the Baltimore
County Police Department received information regarding a possible child
abuse that occurred to a three-year-old named B[.3]
3
Because the child was three years old at the time, we refer to the child by the initial
of her first name.
-4-
The matter was assigned to Detective Lane to investigate. Detective
Lane’s investigation revealed that on 4-18-2010, ten days earlier, the child
was in her father, . . . Sanmartin Prado’s care and during that time she
sustained a serious burn to the left side of her face.
During that time the mother of the child, Gina Salinas became aware
of the burn.
Together [] Salinas and [] Sanmartin Prado made the decision not to
take the child to the hospital, however, the next day, April 19th 2010, the
child was taken to Johns Hopkins Hospital. There the mother and [Sanmartin
Prado] told the hospital staff a story that consisted of this being an accident.
The child was in the bath tub, she turned the water on and she burnt her face.
The police were not called at that time. Days later the police were
informed of this injury. The police did interview [] Salinas and she told the
police that she had left her child B[.] with [Sanmartin Prado] while she
worked and when she came home from work she found B[.] to have a serious
burn to the left side of her face.
[Sanmartin Prado] was subsequently interviewed by Detective Lane
on May 3rd of 2010. All of this happening well after the child had received
care and treatment for what was determined to be second and third degree
burns on the left side of her face.
By this point those burns had scabbed over. The injury was just a
discoloration to the child’s face, however, on May 3rd, 2010, while speaking
with Detective Lane, [Sanmartin Prado] after being Mirandized did agree that
on April 18th, 2010, while his wife worked, he cared for his children. At
some point B[.] woke up from her nap and she was inconsolable. She was
crying for her mother and, as he had done in the past, he took the spray from
the shower head and as she sat in the bathroom on the toilet he sprayed the
water at her. [Sanmartin Prado] would say that most of the water went on
the floor, however, the child continued to cry, he believed crying still for her
mother.
He would say that he had no idea that the water was as hot as it was.
The bath tub was examined and it was that the faucet was just one
faucet for both cold and hot water. The water temp -- well, [Sanmartin Prado]
said that he sprayed his daughter in the facial area and the body for
approximately two minutes. The water temp was tested and it was found that
-5-
after one minute that the water would reach a temperature of 128 degrees.
Studies have shown that at 122 degrees the skin will burn after one
minute.
Again, if called to testify, [] Salinas, the mother, would attest she was
not home when the burns occurred. Again Detective Lane would attest that
[Sanmartin Prado] admitted that as a course of punishment he turned the
water on his child not meaning to burn her, is -- would be his words, but that
he did, in fact, spray her with the water and that did in fact cause burns that
were subsequently seen approximately ten days after being treated.
All events occurred in Baltimore County, and that would be the
State’s case.
The circuit court found Sanmartin Prado guilty of second-degree child abuse, and
sentenced him to five years’ imprisonment with all but two years suspended, followed by
two years of supervised probation with the condition that Sanmartin Prado complete a
physical offender treatment program and a parenting course offered by the Department of
Social Services. The charges for first-degree child abuse causing severe physical injury
and second-degree assault were nol prossed. Sanmartin Prado did not appeal the
conviction.
Over two years later, on October 21, 2013, Sanmartin Prado filed in the circuit court
a “Petition for Writ of Error Coram Nobis” (“the petition”), contending that, as a result of
the conviction, he was facing a significant collateral consequence, namely, “that he is
automatically deportable from the United States[.]” Sanmartin Prado stated that, as of the
time of the filing of the petition, he was “in proceedings before the Immigration Court with
one of the allegations being the conviction in the [] case to substantiate or to support the
government’s claim for deportation.” Sanmartin Prado alleged that his trial counsel had
-6-
rendered ineffective assistance of counsel at the January 6, 2011 plea hearing by failing to
advise him that he was subject to automatic deportation as a result of the conviction, and
by failing to specify what immigration consequences he could face as a result of conviction,
including being subject to automatic deportation. According to Sanmartin Prado, had he
known that he would be subject to automatic deportation as a result of the conviction, he
would not have pled not guilty on an agreed statement of facts, and instead would have
gone to trial. On November 18, 2013, the State filed an answer and motion to dismiss the
petition without a hearing, contending, in pertinent part, that trial counsel properly advised
Sanmartin Prado of the potential immigration consequences of a conviction.
On January 28, 2014, the circuit court conducted a hearing on the petition. At the
hearing, Sanmartin Prado called trial counsel as a witness. Trial counsel testified that he
visited Sanmartin Prado in jail before the January 6, 2011 proceeding, and the following
exchange occurred concerning trial counsel’s discussions with Sanmartin Prado about the
immigration consequences of a conviction:
[CORAM NOBIS COUNSEL]: Now, when you discussed these matters with
[] Sanmartin [Prado], did you ask him if he was a citizen of the United States?
[TRIAL COUNSEL]: I don’t know if I exactly asked him if he was a citizen,
I asked him where he was born, he told me he was from Ecuador, he came to
the United States with his mother when he was eighteen and he told me that
he was a permanent resident and had a green card and had, had so had that
green card since 1998. That’s what my notes reflect.
[CORAM NOBIS COUNSEL]: But did you, you did not determine whether
or not, since 1998, he had become a citizen?
[TRIAL COUNSEL]: No, I knew he was not a naturalized U.S. citizen, if
that’s your question.
-7-
[CORAM NOBIS COUNSEL]: Now, after having gotten that information,
what, if anything, did you explore to determine if any problems he might
have with immigration?
[TRIAL COUNSEL]: On December . . . 30th of 2010, I met with [Sanmartin
Prado] for the final time at the Detention Center. I explained to him that the,
there could and probably would be immigration consequences as a result of
the plea but that the, the term of art that I usually use is that immigration is a
moving target and that it was, I recall telling him that it was a deportable or
a possibly deportable offense, but the plea agreement that the State had
offered, he indicated to me that he was interested in taking that and my notes,
written on the inside of my file jacket, I can read them verbatim if you’d like.
[CORAM NOBIS COUNSEL]: That’s fine. If that refreshes your
recollection, that’s fine.
***
[TRIAL COUNSEL]: It says, [Sanmartin Prado] wants deal, prefer Alford
plea, quote, cannot admit guilty, unquote, spoke extensively re imm, I-M-M-
period, consequences.
[CIRCUIT COURT]: I’m sorry, slow down, --
[TRIAL COUNSEL]: Which I would take to be immigration consequences.
***
[CORAM NOBIS COUNSEL]: Okay. What did you explain to him about
immigration consequences?
[TRIAL COUNSEL]: That it’s a deportable offense and he could be deported
if the Federal government chooses to deport him.
[CORAM NOBIS COUNSEL]: Why is it a deportable offense?
[TRIAL COUNSEL]: Because it is an aggravated felony which carries more
than a year in jail.
[CORAM NOBIS COUNSEL]: And where did you get that information
from?
[TRIAL COUNSEL]: My, I’ve always wanted to say this, my training,
-8-
knowledge and experience as a lawyer.
[CORAM NOBIS COUNSEL]: That’s good. Nothing wrong with that. And
at the time that you advised my client --
[CIRCUIT COURT]: Can, can you go, hold on, [coram nobis counsel].
[Trial counsel], you told, you testified that you told [Sanmartin Prado], the
question to you was, what consequences did you advise him of and what you
said to [Sanmartin] Prado was that it was a deportable offense, he could be
deported and then what did you say, if the immigration officials?
[TRIAL COUNSEL]: If the Federal government chooses to exercise their
right to deport him.
[CIRCUIT COURT]: Okay.
[TRIAL COUNSEL]: Or to, to initiate deportation proceedings.
***
[CORAM NOBIS COUNSEL]: Nowhere in that colloquy [during the
January 6, 2011 proceeding] do you ever tell [] Sanmartin Prado that he’s
automatically deportable as a result of the conviction in this case, correct?
[TRIAL COUNSEL]: No.
***
[CORAM NOBIS COUNSEL]: [D]id you ever tell [] Sanmartin Prado that
the conviction would make him automatically deportable under all
circumstances?
[TRIAL COUNSEL]: I don’t know if I used the term automatic but I
certainly said it was a deportable offense, so.
Trial counsel also testified that he met with Sanmartin Prado’s wife and that his “notes
d[id] not reflect that we discussed the possible immigration consequences[,] but I can’t
believe I would not have discussed those with her[.]”
On cross-examination, the prosecutor asked trial counsel what he meant “by
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deportation is a moving target[,]” to which trial counsel responded:
Especially back in 2009, 2010 even, early into 2011, I found that there was
sort of some arbitrary enforcement of the Federal immigration laws. Some
people were getting deported, other people were not. Some people were
getting deportation orders. So, you know, I guess, in hindsight, you know, I
shouldn’t have used the term moving target but I think it was clear to
[Sanmartin Prado] and I think I made it pretty clear on the record that this
was deportable and he and I discussed that and that that was a very real
collateral consequence to the plea.
When asked by the prosecutor “at no time did you tell [Sanmartin] Prado you will not be
deported as a result of this case[,]” trial counsel emphatically testified: “I absolutely,
positively did not tell him you, because if I, if that, if I were that certain, I would have not
had the discussion at all.”
Sanmartin Prado testified on his own behalf through the assistance of a Spanish-
language interpreter. According to Sanmartin Prado, he saw trial counsel at the jail twice
without the assistance of an interpreter. Coram nobis counsel asked about Sanmartin
Prado’s discussions with trial counsel about immigration consequences and the following
exchange occurred:
[CORAM NOBIS COUNSEL]: Did you know when you went to Court that
if you were found guilty, you would be deported to your home country?
[SANMARTIN PRADO]: No.
[CORAM NOBIS COUNSEL]: Okay. Did anybody tell you that could
happen, either [trial counsel] or anybody else, before you went to Court?
[SANMARTIN PRADO]: No.
[CORAM NOBIS COUNSEL]: Okay. When did you first find out that you
were subject to, or you were going to be deported as a result of your case?
[SANMARTIN PRADO]: About maybe six months after I got out from jail,
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they came to the house, nobody told me anything, [Immigration and Customs
Enforcement] came to the house.
***
[CORAM NOBIS COUNSEL]: Okay. Now, if you would have known that
you would be deported by being convicted, would you have not asked for a
trial or would you have asked for a trial, in your case, an actual trial?
[SANMARTIN PRADO]: Yes.
On cross-examination, Sanmartin Prado testified that trial counsel never advised
him that he could be deported, but acknowledged that he and trial counsel had discussed
his immigration status:
[PROSECUTOR]: Sir, it’s your testimony that [trial counsel] never told you
that you could be deported because of this crime?
[SANMARTIN PRADO]: He never told me, maybe he told me in other
words that I did not understand, but he never told me about deportation.
***
[PROSECUTOR]: Did [trial counsel] ask you regarding your immigration
status? . . . Sir, isn’t it true that [trial counsel] asked you if you were a citizen
of this country?
[SANMARTIN PRADO]: He asked me but I said no I was a resident.
[PROSECUTOR]: Okay. So did you talk about your green card and your
status in this country?
[SANMARTIN PRADO]: Yes.
[PROSECUTOR]: So you admit that [trial counsel] did have conversations
regarding your immigration status?
[SANMARTIN PRADO]: Yes. Because the first time he saw me, he asked
me if I was a resident and I told him yes.
And, in response to the prosecutor’s question “Did [trial counsel] ever tell you you would
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not be deported as a result of this crime or he never talked to you about deportation?[,]”
Sanmartin Prado stated: “He never talked about that.”
On June 12, 2014, the coram nobis court issued a Memorandum and Order (E 7)
denying the petition. In relevant part, the circuit court found:
[A]t the coram nobis hearing, [] trial counsel testified, and the Court finds as
a fact, that he met with [Sanmartin Prado] at the Baltimore County Detention
Center before trial and explained the immigration consequences of a guilty
verdict, including that this was a “deportable offense” and [Sanmartin Prado]
“could be deported . . . if the federal government chose to initiate deportation
proceedings,” and it was “possible” that [Sanmartin Prado] would be
deported. [Sanmartin Prado] testified that trial counsel never told him he
“would be deported[,]” but acknowledged that he did have conversations
with trial counsel regarding his immigration status.
The circuit court ruled:
Upon consideration of the evidence presented to this Court as well as
the record of the plea hearing, the Court finds that [Sanmartin Prado] has not
rebutted the presumption that he “intelligently and knowingly” failed to raise
the allegation on appeal and [Sanmartin Prado] has made no showing that
special circumstances exist for his failure to make the allegation of error on
appeal.
On July 9, 2014, Sanmartin Prado filed a notice of appeal. On October 2, 2015, in
a reported opinion, the Court of Special Appeals reversed the judgment of the circuit court
and remanded the case to the circuit court for further proceedings. See Sanmartin Prado v.
State, 225 Md. App. 201, 214, 123 A.3d 652, 660 (2015). Relevant here, the Court of
Special Appeals held that “trial counsel qualified his statements to Sanmartin Prado as to
whether a conviction would render him deportable[,]” and that, accordingly, “Sanmartin
Prado established that [] trial counsel did not provide him with the correct ‘available
advice’ about the deportation risk.” Id. at 213, 123 A.2d at 659. Because Sanmartin Prado
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had established the first prong of the Strickland4 test, the Court “remand[ed] the case to the
circuit court to [determine] whether there is a reasonable probability that, but for trial
counsel’s unprofessional errors, the result of the proceedings would have been different.”
Id. at 213-14, 123 A.3d at 660 (citation omitted). Thereafter, the State filed in this Court a
petition for a writ of certiorari, which we granted. See State v. Sanmartin Prado, 446 Md.
291, 132 A.3d 193 (2016).
DISCUSSION
The Parties’ Contentions
The State contends that the Court of Special Appeals erred in holding that trial
counsel’s advisement to Sanmartin Prado about the possible immigration consequences of
conviction was constitutionally deficient, and that the Court’s holding is inconsistent with
Padilla, 559 U.S. 356, and this Court’s holding in Denisyuk, 422 Md. 462, 30 A.3d 914.
According to the State, under Padilla and Denisyuk, a lawyer must advise his or her client
of whether there is a “risk of deportation” and “that deportation is a likely consequence of
[a] guilty plea.” (Citations omitted). The State argues that trial counsel’s advice and
representation to Sanmartin Prado “fully comported” with Padilla and Denisyuk because
trial counsel advised Sanmartin Prado that second-degree child abuse was a deportable
offense and that there could and probably would be immigration consequences if he were
convicted of the offense. The State asserts that, unlike in Padilla or Denisyuk, trial counsel
in this case neither failed altogether to advise Sanmartin Prado concerning immigration
4
Strickland v. Washington, 466 U.S. 668 (1984).
- 13 -
consequences, nor misadvised Sanmartin Prado about the immigration consequences. The
State maintains that the holding of the Court of Special Appeals sets a new standard, and
is inconsistent with other jurisdictions’ holdings in the wake of Padilla, and with the
standard set forth in Maryland Rule 4-242(f) (Collateral Consequences of a Plea of Guilty,
Conditional Plea of Guilty, or Plea of Nolo Contendere).
Sanmartin Prado responds that the Court of Special Appeals correctly held that trial
counsel failed to properly advise him in open court of the immigration consequences of a
conviction in accordance with Padilla and Denisyuk. According to Sanmartin Prado, the
Court of Special Appeals correctly concluded that proper advisement of immigration
consequences consists of defense counsel advising a defendant that he or she is
“deportable,” without any qualification, such as “if the federal government cho[o]se[s] to
initiate deportation proceedings,” “possibly deportable,” or similar qualifiers. Sanmartin
Prado argues that trial counsel’s advisement was deficient because trial counsel neither
advised that deportation was mandatory and automatic nor advised “without equivocation”
that Sanmartin Prado was deportable. Sanmartin Prado asserts that trial counsel misadvised
him of the immigration consequences of a conviction by equivocating and stating that he
“could be deportable or probably would be deportable and that immigration is a moving
target[.]” Sanmartin Prado maintains that trial counsel’s advisements led him to believe
that there was a possibility that there would be no immigration consequences for a
conviction. Sanmartin Prado also contends that the advisements in this case violated
Maryland Rule 4-242, which Sanmartin Prado argues requires that an advisement of
immigration consequences of a guilty plea be made on the record in open court. In so
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contending, Sanmartin Prado points out that, in this case, proceeding by way of a not guilty
plea upon an agreed statement of facts was the functional equivalent of a guilty plea.
In a reply brief, the State contends that Padilla did not require trial counsel to advise
Sanmartin Prado in an unequivocal statement that he would be deported if convicted. The
State also takes the position that, unlike in Padilla and Denisyuk, Sanmartin Prado did not
enter and was not convicted based upon a guilty plea. Stated otherwise, the State theorizes
that the not guilty agreed statement of facts arrangement was not the functional equivalent
of a guilty plea.
Standard of Review
We review without deference a trial court’s resolution of questions of law. See, e.g.,
State v. Daughtry, 419 Md. 35, 46, 18 A.3d 60, 66 (2011) (“It is well settled that where a
case involves an interpretation and application of case law, [the appellate c]ourt must
determine whether the [trial] court’s conclusions are legally correct under a non-deferential
standard of review.” (Citations, brackets, ellipses, and internal quotation marks omitted)).
As to a trial court’s determination concerning issues of effective assistance of counsel, in
State v. Jones, 138 Md. App. 178, 209, 771 A.2d 407, 425 (2001), aff’d, 379 Md. 704, 843
A.2d 778 (2004), the Court of Special Appeals has stated:
The standard of review of the [trial] court’s determinations regarding
issues of effective assistance of counsel is a mixed question of law and fact.
We will not disturb the factual findings of the post-conviction court unless
they are clearly erroneous. But, a reviewing court must make an independent
analysis to determine the ultimate mixed question of law and fact, namely,
was there a violation of a constitutional right as claimed. In other words, the
appellate court must exercise its own independent judgment as to the
reasonableness of counsel’s conduct and the prejudice, if any. . . . [The
appellate court] will evaluate anew the findings of the [trial] court as to the
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reasonableness of counsel’s conduct and the prejudice suffered. As a
question of whether a constitutional right has been violated, we make our
own independent analysis by reviewing the law and applying it to the facts
of the case.
(Citations, ellipses, and internal quotation marks omitted). See also Coleman v. State, 434
Md. 320, 331, 75 A.3d 916, 923 (2013) (“[T]he . . . components of the ineffectiveness
inquiry are mixed questions of law and fact. Thus, in our independent examination of the
case, we re-weigh the facts as accepted in order to determine the ultimate mixed question
of law and fact, namely, was there a violation of a constitutional right as claimed.”
(Citations and internal quotation marks omitted)).
Coram Nobis Relief
Recently, in State v. Smith, 443 Md. 572, 623-24, 117 A.3d 1093, 1123-24 (2015)
(per curiam), we described coram nobis relief as follows:
Coram nobis is extraordinary relief designed to relieve a petitioner of
substantial collateral consequences outside of a sentence of incarceration or
probation where no other remedy exists. “[T]he writ of error coram nobis is
an ancient common law device traditionally utilized to correct errors of fact.”
Rivera v. State, 409 Md. 176, 189-90, 973 A.2d 218, 227 (2009) (citation
omitted). “The purpose of the writ is to bring before the court facts which
were not brought into issue at the trial of the case, and which were material
to the validity and regularity of the proceedings, and which, if known by the
court, would have prevented the judgment.” Skok v. State, 361 Md. 52, 68,
760 A.2d 647, 655 (2000) (citation omitted).
In Skok, id. at 75, 78, 760 A.2d at 659, 661, we expanded the scope of
coram nobis relief, holding that coram nobis applies to both errors of fact and
errors of law “on constitutional or fundamental grounds.” We explained:
“[T]here should be a remedy for a convicted person who is not incarcerated
and not on parole or probation, who is suddenly faced with a significant
collateral consequence of his or her conviction, and who can legitimately
challenge the conviction on constitutional or fundamental grounds.” Id. at
78, 760 A.2d at 661. We added, however: (1) “the grounds for challenging
the criminal conviction must be of a constitutional, jurisdictional or
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fundamental character[,]” id. at 78, 760 A.2d at 661; (2) “a presumption of
regularity attaches to the criminal case, and the burden of proof is on the
coram nobis petitioner[,]” id. at 78, 760 A.2d at 661; (3) “the coram nobis
petitioner must be suffering or facing significant collateral consequences
from the conviction[,]” id. at 79, 760 A.2d at 661; (4) the issue raised in a
coram nobis action must not be waived or finally litigated, see id. at 79, 760
A.2d at 661-62; and (5) there must not be another statutory or common law
remedy available, see id. at 80, 760 A.2d at 662.
Ineffective Assistance of Counsel
As to effective assistance of counsel, in Taylor v. State, 428 Md. 386, 399-400, 51
A.3d 655, 662 (2012), this Court explained that, in Maryland, we follow the test announced
by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), stating:
Under both the Sixth Amendment and Article 21 of the Maryland
Declaration of Rights,5 a criminal defendant is entitled to the assistance of
counsel, which means “the right to the effective assistance of counsel.”
Duvall v. State, 399 Md. 210, 220-21, 923 A.2d 81, 88 (2007) (quoting
Strickland, 466 U.S. at 686[]) (quotation mark omitted). The defendant who
claims that he or she received ineffective assistance of counsel, as a general
rule under the test announced in Strickland and followed ever since, must
make two showings: “First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense.” 466 U.S. at 687[.] In
regard to the first, “performance” prong of Strickland, the defendant must
demonstrate that counsel’s alleged acts or omissions, based on “the facts of
the particular case, viewed as of the time of counsel’s conduct,” fell “outside
5
In Taylor, 428 Md. at 399 n.8, 51 A.3d at 662 n.8, we stated:
The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.”
The right is applicable to the states through the Fourteenth Amendment.
Gideon v. Wainwright, 372 U.S. 335, 343[] (1963). Article 21 of the
Maryland Declaration of Rights declares: “That in all criminal prosecutions,
every man hath a right to . . . be allowed counsel[.]”
(Ellipses in original).
- 17 -
the wide range of professionally competent assistance.” Id. at 690[.] In
regard to the second, “prejudice” prong, “[t]he defendant must show that
there is 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.” Id. at 694[.]
As to the second prong, we have explained that “the standard to be used is whether there
is a substantial or significant possibility that the verdict of the trier of fact would have been
affected.” Coleman, 434 Md. at 331, 75 A.3d at 923 (citations and internal quotation marks
omitted).
Maryland Rule 4-242(f)
Maryland Rule 4-242(f), entitled “Collateral Consequences of a Plea of Guilty,
Conditional Plea of Guilty, or Plea of Nolo Contendere,” provides that non-citizens be
advised of immigration consequences of a plea as follows:
Before the court accepts a plea of guilty, a conditional plea of guilty, or a
plea of nolo contendere, the court, the State’s Attorney, the attorney for the
defendant, or any combination thereof shall advise the defendant (1) that by
entering the plea, if the defendant is not a United States citizen, the
defendant may face additional consequences of deportation, detention,
or ineligibility for citizenship, (2) that by entering a plea to the offenses set
out in Code, Criminal Procedure Article, § 11-701,[6] the defendant shall have
to register with the defendant’s supervising authority as defined in Code,
Criminal Procedure Article, § 11-701(p), and (3) that the defendant should
consult with defense counsel if the defendant is represented and needs
additional information concerning the potential consequences of the plea.
The omission of advice concerning the collateral consequences of a plea does
not itself mandate that the plea be declared invalid.[7]
6
That statute concerns sex offender registration.
7
In 2011, the provisions of Maryland Rule 4-242(f) were contained at Maryland
Rule 4-242(e). See Md. R. 4-242(e) (2011); Rules Order on 165th Report (Oct. 20, 2010),
at 7, available at http://www.mdcourts.gov/rules/rodocs/ro165.pdf [https://perma.cc/4EG9
- 18 -
(Emphasis added).
8 U.S.C. § 1227
As of the January 6, 2011 proceeding in this case, 8 U.S.C. § 1227, concerning
“Deportable aliens,” provided, in relevant part, as it does now:
(a) Classes of deportable aliens
Any alien . . . in and admitted to the United States shall, upon the order of
the Attorney General, be removed if the alien is within one or more of the
following classes of deportable aliens:
...
(2) Criminal offenses
(A) General crimes
...
(iii) Aggravated felony
Any alien who is convicted of an aggravated felony at
any time after admission is deportable.[8]
-3LHQ]. Effective January 1, 2013, and as a result of the addition of a new section (d)
pertaining to conditional pleas of guilty, Maryland Rule 4-242(e) became Maryland Rule
4-242(f). At that time, there was a slight change to the beginning of Maryland Rule 4-
242(f) to add the words “a conditional plea of guilty.” See Md. R. 4-242(f) (2013); Rules
Order on 174th Report (Nov. 1, 2012), at 22, 26-27, available at
http://www.mdcourts.gov/rules/rodocs/ro174categories145912.pdf [https://perma.cc/62V
6-MPJN]. No other substantive changes were made to Maryland Rule 4-242(f). For
clarity, we shall refer to the current version of Maryland Rule 4-242(f).
8
“Aggravated felony” is defined, in relevant part, as “a crime of violence (as defined
in section 16 of Title 18, but not including a purely political offense) for which the term of
imprisonment [is] at least one year[.]” 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,”
in turn, is defined as:
- 19 -
...
(E) Crimes of domestic violence, stalking, or violation of
protection order, crimes against children and
(i) Domestic violence, stalking, and child abuse
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.
Padilla v. Kentucky
In Padilla, 559 U.S. at 369, 360, the Supreme Court held that “Padilla ha[d]
sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland”
because “constitutionally competent counsel would have advised [Padilla] that his
conviction for drug distribution made him subject to automatic deportation.” Indeed, for
the first time, the Supreme Court held that, pursuant to the Sixth Amendment right to
counsel, “counsel must inform [his or] her client whether his [or her] plea carries a risk of
deportation.” Id. at 374. In Padilla, id. at 359, Padilla, a native of Honduras who had been
a legal permanent resident of the United States for more than forty years, pleaded guilty to
transportation of a large amount of marijuana. Padilla later sought post-conviction relief,
(a) an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a
substantial risk of physical force against the person or property of another
may be used in the course of committing the offense.
18 U.S.C. § 16.
- 20 -
alleging that his counsel both failed to advise him of the immigration consequences of his
plea and misadvised “him that he did not have to worry about his immigration status since
he had been in the country so long.” Id. (citation and internal quotation marks omitted).
According to Padilla, he relied on his counsel’s erroneous advice when he pleaded guilty,
and, had he received correct advice, “he would have insisted on going to trial[.]” Id. The
Supreme Court of Kentucky concluded that Padilla was not entitled to post-conviction
relief. See id. The Supreme Court then granted certiorari to determine “whether, as a
matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to
which he was pleading guilty would result in his removal from this country.” Id. at 360.
The Supreme Court began by examining the evolution of federal immigration law
over the past century, observing that, “[w]hile once there was only a narrow class of
deportable offenses and judges wielded broad discretionary authority to prevent
deportation, immigration reforms over time have expanded the class of deportable offenses
and limited the authority of judges to alleviate the harsh consequences of deportation.” Id.
According to the Supreme Court, under current immigration laws, deportation or removal
“is now virtually inevitable for a vast number of noncitizens convicted of crimes.” Id. As
a result, “[t]he importance of accurate legal advice for noncitizens accused of crimes has
never been more important.” Id. at 364.
The Supreme Court then determined that the Sixth Amendment right to counsel, and
the Strickland test for effective assistance of counsel, were applicable to Padilla’s claim.
Id. at 366. As to the first prong of Strickland—whether “counsel’s representation fell
below an objective standard of reasonableness”—the Supreme Court stated that “[t]he
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weight of prevailing professional norms supports the view that counsel must advise [his
or] her client regarding the risk of deportation.” Id. at 366-67 (citations and internal
quotation marks omitted). Considering the circumstances of Padilla’s case, the Supreme
Court explained:
In the instant case, the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the removal consequences for
Padilla’s conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any
time after admission has been convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the United States or a
foreign country relating to a controlled substance . . . , other than a single
offense involving possession for one’s own use of 30 grams or less or
marijuana, is deportable”). Padilla’s counsel could have easily determined
that his plea would make him eligible for deportation simply from reading
the text of the statute, which addresses not some broad classification of
crimes but specifically commands removal for all controlled substances
convictions except for the most trivial of marijuana possession offenses.
Instead, Padilla’s counsel provided him false assurance that his conviction
would not result in his removal from this country. This is not a hard case in
which to find deficiency: The consequences of Padilla’s plea could easily be
determined from reading the removal statute, his deportation was
presumptively mandatory, and his counsel’s advice was incorrect.
Padilla, 559 U.S. at 368-69 (ellipsis in original). The Supreme Court nonetheless
recognized that “[i]mmigration law can be complex,” and that there may be “situations in
which the deportation consequences of a particular plea are unclear or uncertain.” Id. at
369. Under those circumstances, “[w]hen the law is not succinct and straightforward . . . ,
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. (footnote
omitted). However, “when the deportation consequence is truly clear, as it was in
[Padilla’s] case, the duty to give correct advice is equally clear.” Id. (emphasis added).
Thus, the Supreme Court concluded that Padilla had sufficiently alleged that his counsel
- 22 -
provided constitutionally deficient representation, satisfying the first prong of Strickland,
and that the Kentucky courts would need to determine “in the first instance” whether
Padilla had satisfied the second prong of Strickland, concerning prejudice. Id.
The Supreme Court also rejected the United States’s contention that “Strickland
applies to Padilla’s claim only to the extent that he ha[d] alleged affirmative misadvice.”
Id. According to the Supreme Court, such a holding would lead to “two absurd results”:
First, it would give counsel an incentive to remain silent on matters of great
importance, even when answers are readily available. Silence under these
circumstances would be fundamentally at odds with the critical obligation of
counsel to advise the client of the advantages and disadvantages of a plea
agreement. When attorneys know that their clients face possible exile from
this country and separation from their families, they should not be
encouraged to say nothing at all. Second, it would deny a class of clients
least able to represent themselves the most rudimentary advice on
deportation even when it is readily available. It is quintessentially the duty
of counsel to provide [his or] her client with available advice about an issue
like deportation and the failure to do so clearly satisfies the first prong of the
Strickland analysis.
Id. at 370-71 (citations, footnote, and internal quotation marks omitted). The Supreme
Court noted, though, that “[s]urmounting Strickland’s high bar is never an easy task.” Id.
at 371 (citations omitted). The Supreme Court concluded as follows:
It is our responsibility under the Constitution to ensure that no
criminal defendant—whether a citizen or not—is left to the mercies of
incompetent counsel. To satisfy this responsibility, we now hold that
counsel must inform [his or] her client whether his [or her] plea carries
a risk of deportation. Our longstanding Sixth Amendment precedents, the
seriousness of deportation as a consequence of a criminal plea, and the
concomitant impact of deportation on families living lawfully in this country
demand no less.
Taking as true the basis for his motion for postconviction relief, we
have little difficulty concluding that Padilla has sufficiently alleged that his
counsel was constitutionally deficient. Whether Padilla is entitled to relief
- 23 -
will depend on whether he can demonstrate prejudice as a result thereof, a
question we do not reach because it was not passed on below.
Id. at 374-75 (emphasis added) (citations and internal quotation marks omitted).
Denisyuk v. State
Over a year later, in Denisyuk, 422 Md. at 466, 30 A.3d at 916, this Court held, in
relevant part, that “defense counsel’s failure to advise [the defendant] of the deportation
consequence of his guilty plea was constitutionally deficient[,]” and that, “based on the
record developed at the postconviction hearing and the court’s express finding on the
subject, [] counsel’s deficient performance prejudiced [the defendant].”9 In other words,
in Denisyuk, 422 Md. at 466, 489, 30 A.3d at 916, 930, applying Padilla, this Court
determined that a defendant’s counsel rendered ineffective assistance where the
defendant’s counsel failed to advise the defendant whatsoever of the immigration
consequences of his guilty plea. In Denisyuk, 422 Md. at 466-67, 30 A.3d at 916, the
defendant, a noncitizen, pleaded guilty to second-degree assault pursuant to a plea
agreement. At the guilty plea proceeding, neither defense counsel, the State, nor the trial
9
In Denisyuk, 422 Md. at 466, 30 A.3d at 916, this Court also held that “Padilla
applies to postconviction claims arising from guilty pleas obtained after the enactment of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 . . . (effective
April 1, 1997)[.]” A couple of years later, in Miller v. State, 435 Md. 174, 185, 77 A.3d
1030, 1036 (2013), this Court stated that, in Chaidez v. United States, ___ U.S. ___, 133
S. Ct. 1103 (2013), the Supreme Court “held that Padilla did not apply retroactively . . .
because Padilla had announced a ‘new rule’ of constitutional criminal procedure.” In other
words, our holding in Denisyuk concerning the retroactive effect of the Supreme Court’s
holding in Padilla was abrogated by Chaidez. Indeed, in Chaidez, __ U.S. __, 133 S. Ct.
at 1110, the Supreme Court explained that, when it decided Padilla, it “answered a question
about the Sixth Amendment’s reach that [it] had left open, in a way that altered the law of
most jurisdictions[.]”
- 24 -
court advised the defendant of the immigration consequences of the plea. See id. at 467,
30 A.3d at 917. Later, the defendant filed a petition for post-conviction relief, alleging that
the guilty plea was involuntary because he was not advised of the potential immigration
consequences of the plea and that defense counsel’s failure to advise him of the potential
immigration consequences of the plea constituted ineffective assistance of counsel. See id.
at 467, 30 A.3d at 917. In an affidavit submitted to the trial court, the defendant averred
that, had he been advised of the immigration consequences of the plea, he would have
rejected the plea offer and proceeded to trial. See id. at 467, 30 A.3d at 917. The trial court
granted the petition for post-conviction relief, and the State thereafter filed an application
for leave to appeal, which was granted. See id. at 468, 30 A.3d at 917-18. The Court of
Special Appeals reversed the grant of post-conviction relief. See id. at 468, 30 A.3d at 918.
This Court then granted certiorari. See id. at 469, 30 A.3d at 918.
After concluding that Padilla applied, this Court held that the defendant’s counsel
“was obligated, but failed, to provide advice on the deportation consequences of [the
defendant]’s plea, [and] that [the defendant]’s trial counsel’s performance was
constitutionally deficient.” Id. at 482, 30 A.3d at 925. We concluded that the first prong
of Strickland was satisfied because, “by application of Padilla, [the defendant]’s counsel’s
performance was deficient because it fell below the standard of prevailing professional
norms.” Id. at 485, 30 A.3d at 927. As to the second prong of Strickland—whether the
defendant was prejudiced by his counsel’s deficient performance—we determined that the
defendant had satisfied that prong as well. See id. at 489, 30 A.3d at 930. We explained
that, because the defendant’s “sworn statement that he would have opted to go to trial if he
- 25 -
had known of the likelihood of deportation, which was credited by the court, had he
received the advice required by Padilla, he would have opted to go to trial[,]” the defendant
had satisfied the second prong of Strickland, i.e., demonstrated that he was prejudiced by
“his counsel’s deficient performance.” Id. at 489, 30 A.3d at 930. Accordingly, because
the defendant had satisfied both prongs of Strickland and thus demonstrated that his
counsel had provided ineffective assistance, we agreed with the trial court that the
defendant should be granted a new trial. See id. at 489, 30 A.3d at 930.
Authority from Other Jurisdictions
Similarly, courts in other jurisdictions have held that a defendant’s counsel’s
performance was constitutionally deficient where the defendant’s counsel either failed to
advise the defendant whatsoever of the immigration consequences of the defendant’s guilty
plea, or affirmatively misadvised the defendant about the immigration consequences of the
defendant’s guilty plea. For example, in United States v. Bonilla, 637 F.3d 980, 981 (9th
Cir. 2011), the Ninth Circuit held that the trial court abused its discretion in denying the
defendant’s motion to withdraw his guilty plea where, after entering his guilty plea, the
defendant “was for the first time informed that he would be deported on the basis of his
plea[.]” In Bonilla, id., the defendant, a native of Mexico, was charged by indictment with
possessing an unregistered firearm and being a felon in possession of a firearm. After the
indictment, the defendant’s wife contacted an investigator with the Federal Public
Defender’s Office to ask whether the defendant could possibly be deported as a result of
the charges; the investigator told the defendant’s wife to contact the defendant’s counsel;
the defendant’s wife then asked the defendant’s counsel whether the defendant could
- 26 -
possibly be deported if he pleaded guilty, and the defendant’s counsel told the wife “that
she would look into the matter but never did, and failed to provide any information about
immigration consequences to [the defendant] or his wife prior to the plea hearing.” Id. at
981-82. The defendant pleaded guilty to both charges. See id. at 982. Afterwards, the
defendant’s wife again asked the defendant’s counsel about the immigration consequences
of the guilty plea. See id. Several days later, the defendant’s counsel advised the
defendant’s wife that, as a result of the guilty plea, the defendant would be deported after
serving his sentence; the defendant’s counsel explained that she had mistakenly believed
that the defendant was a United States citizen. See id. The defendant later moved to
withdraw his guilty plea; the trial court denied the motion; and the defendant appealed. See
id. at 982-83.
The Ninth Circuit explained that it was undisputed that the defendant “received
‘inadequate legal advice’ about the immigration consequences of his plea” because, in
actuality, the defendant “received no advice about immigration consequences before
entering his plea, only learning afterward that pleading guilty would almost certainly result
in deportation.” Id. at 984 (emphasis in original) (citations omitted). The Ninth Circuit
stated that “[a] criminal defendant who faces almost certain deportation is entitled to know
more than that it is possible that a guilty plea could lead to removal; he is entitled to know
that it is a virtual certainty.” Id. (emphasis in original) (citation omitted). And, under the
circumstances of the case, the Ninth Circuit determined that, because the defendant’s wife
had inquired of counsel the immigration consequences and had been provided no
information prior to the defendant pleading guilty, the defendant could reasonably “have
- 27 -
inferred that he likely would not be deported if he pled[.]” Id. Indeed, according to the
Ninth Circuit, “a reasonable person in [the defendant]’s position could well have
interpreted his lawyer’s silence to mean that pleading guilty would not place him in
jeopardy of deportation[.]” Id. at 984-85. The Ninth Circuit concluded that, although the
defendant may have been aware prior to pleading guilty “about the possibility that there
might be a reason not to plead to the indictment, because of his lawyer’s failure to answer
his wife’s question he did not know whether that possibility was likely to have any real
consequences.” Id. at 985 (emphasis in original). Indeed, it was only after pleading guilty
that the defendant learned “that the plea would in fact make his deportation virtually
certain.” Id. Under those circumstances, the Ninth Circuit held that the trial court abused
its discretion in denying the defendant’s motion to withdraw his plea. See id. at 986.
In a similar vein, in United States v. Akinsade, 686 F.3d 248, 250 (4th Cir. 2012),
the Fourth Circuit reversed the trial court’s denial of the defendant’s petition for writ of
error coram nobis where the defendant’s counsel affirmatively misadvised the defendant
that he would not be deported. In Akinsade, id., the defendant, a native of Nigeria who
became a lawful permanent resident, was charged with embezzlement by a bank employee.
The defendant asked his counsel on at least two occasions about the potential immigration
consequences of a guilty plea. See id. On each occasion, contrary to the law at that time,
the defendant’s counsel “misadvised him that he could not be deported based on th[e]
single offense” and “that he could only be deported if he had two felony convictions.” Id.
Relying on that misadvice, the defendant pleaded guilty pursuant to a plea agreement,
which did not mention that deportation was mandatory or possible due to the offense. See
- 28 -
id. During the plea proceeding, the trial court reviewed the consequences of the plea,
including that, “if you are not a citizen, you could be deported.” Id. The defendant said
that he understood and affirmatively stated that he still wished to plead guilty. See id.
Years later, while under the threat of deportation, the defendant filed a petition for writ of
error coram nobis, alleging ineffective assistance of counsel based on his counsel’s
misadvice. See id. at 251. Although holding that the defendant’s counsel’s affirmative
misadvice rendered his assistance constitutionally deficient, the trial court denied the
petition, concluding that the defendant was not prejudiced. See id. The defendant
appealed. See id.
The Fourth Circuit focused its analysis on “the merits of [the defendant]’s
ineffective assistance of counsel claim to decide whether [the defendant] ha[d] been
prejudiced.” Id. at 253 (citation omitted). As to that point, the Fourth Circuit
acknowledged that “[a] defendant may be unable to show prejudice if at the [plea]
proceeding the [trial] court provides an admonishment that corrects the misadvice and the
defendant expresses that he [or she] understands the admonishment.” Id. (citations
omitted). The Fourth Circuit concluded that the trial court’s admonishment was
insufficient to correct the defendant’s counsel’s misadvice that the crime was not a
deportable offense because it was not “a careful explanation of the consequences of
deportation” and instead simply “warned that [the defendant]’s plea could lead to
deportation.” Id. at 254 (emphasis in original) (internal quotation marks omitted). The
Fourth Circuit concluded “that counsel’s affirmative misrepresentations that the crime at
issue was non-deportable prejudiced” the defendant because the record demonstrated that,
- 29 -
but for the misadvice, the defendant would not have pleaded guilty. Id. at 256. Because
the defendant had demonstrated prejudice, the Fourth Circuit concluded that he “also
demonstrated that he ha[d] suffered a fundamental error necessitating coram nobis relief.”
Id.
In the wake of Padilla, courts in various other jurisdictions also have addressed the
extent of Padilla’s holding and have grappled with whether counsel’s use of qualifying
words when advising a defendant about immigration consequences—as opposed to
counsel’s failing altogether to advise or affirmatively misadvising—renders that counsel’s
performance constitutionally deficient under Strickland. For example, in United States v.
Rodriguez-Vega, 797 F.3d 781, 784, 788 (9th Cir. 2015), the Ninth Circuit held that the
trial court “err[ed] in failing to hold that . . . [the defendant]’s counsel’s assistance was
ineffective” where the defendant’s counsel “never informed [the defendant before she
pleaded guilty] that she faced anything more than the mere ‘potential’ of removal.” In
Rodriguez-Vega, id. at 784, the defendant, a native of Mexico who became a legal
permanent resident of the United States, was charged with the felony of attempted
transportation of illegal aliens and aiding and abetting. The defendant’s counsel initially
presented the defendant with a plea agreement requiring the defendant “to stipulate to
removal following her criminal sentence”; the defendant rejected the plea agreement. Id.
at 784-85. The defendant’s counsel then presented a revised plea agreement that did not
include the stipulation for removal, and instead included a provision entitled “Immigration
Consequences,” which stated, in pertinent part:
Defendant recognizes that pleading guilty may have consequences with
- 30 -
respect to her immigration status if she is not a citizen of the United States. .
. . Defendant nevertheless affirms that she wants to plead guilty regardless of
any immigration consequences that [her] plea may entail, even if the
consequence is [her] automatic removal from the United States.
Id. at 785 (ellipsis in original). The defendant thereafter pleaded guilty to the misdemeanor
of attempted transportation of an illegal alien. See id. At the plea proceeding, the
magistrate judge advised the defendant that “potentially [she] could be deported or
removed, perhaps.” Id. (emphasis in original). Later, at sentencing, the defendant’s
counsel, while addressing the trial court, stated that “there is a high likelihood that [the
defendant would] be deported. It’s still probably considered an aggravated felony for
purposes of immigration law.” Id. (emphasis in original) (internal quotation marks
omitted).
The defendant later filed a petition to vacate her conviction “on the ground that her
counsel provided ineffective assistance by failing to adequately advise her regarding the
immigration consequences of her plea.” Id. The defendant denied that her counsel had
ever advised her that pleading guilty would cause her to be removed from the country. See
id. The defendant’s counsel stated that he spoke with the defendant about the potential
immigration consequences of pleading guilty, explained that there was the potential to be
deported, and advised that “she had a better chance with Immigration with a misdemeanor
than a felony.” Id. at 785-86. The trial court denied the petition to vacate, and the
defendant appealed. See id. at 786.
On appeal, the Ninth Circuit held that the defendant’s “counsel was required to
advise [the defendant] that her conviction rendered her removal virtually certain, or words
- 31 -
to that effect[,]” explaining that, as in Padilla, “the immigration statute expressly identifie[d
the defendant]’s conviction as a ground for removal[,]” and that her “conviction of a
removable offense render[ed the defendant’s] removal practically inevitable.” Rodriguez-
Vega, 797 F.3d at 786 (citations and internal quotation marks omitted). The Ninth Circuit
rejected various arguments in support of the contention that the defendant’s counsel’s
performance was not constitutionally deficient. See id. at 786-87. For example, the Ninth
Circuit stated that the circumstance that the defendant may have “theoretically” been able
to avoid removal under certain statutes, such as the family member exception for first-time
offenders, by receiving withholding of removal, or by qualifying for relief under the
Convention Against Torture, did “not alter [the] conclusion that on the record . . . [the
defendant’s] removal was virtually certain.” Id. (footnote omitted). The Ninth Circuit also
determined that the defendant’s “counsel’s statements made after [the defendant] had
already pled guilty, that she faced a ‘high likelihood’ of removal, [failed to] satisfy his duty
to accurately advise his client of the removal consequences of a plea before she entered
into it.” Id. at 787 (emphasis in original) (citations omitted). According to the Ninth
Circuit, “had [the defendant] been properly and timely advised, [the defendant] could have
instructed her counsel to attempt to negotiate a plea that would not result in her removal.”
Id. (citations omitted). The Ninth Circuit concluded that, “[b]ecause the immigration
consequences of [the defendant’s] plea were clear and her removal was virtually certain, .
. . counsel’s performance [was] constitutionally ineffective.” Id. at 788 (citation omitted).
In State v. Favela, 311 P.3d 1213, 1214 (N.M. Ct. App. 2013), aff’d, 343 P.3d 178
(N.M. 2015), the Court of Appeals of New Mexico held that the defendant’s counsel
- 32 -
provided “deficient representation” where the defendant’s counsel stated at the plea
proceeding that “more than likely [the defendant] will have a great consequence on his
papers being taken away.” (Ellipsis omitted). In Favela, 311 P.3d at 1214, the defendant,
a native of Mexico who became a legal permanent resident, pleaded guilty to four counts
of aggravated battery with a deadly weapon and one count of driving under the influence.
At the plea proceeding, the trial court asked the defendant’s counsel whether there was “an
immigration consequence” in the case. Id. The defendant’s counsel responded: “There
will be. Defendant is here legal and everything, he has his paper documentation and
everything, but more than likely he will have a great consequence on his papers being taken
away.” Id. (brackets and ellipsis omitted). Immediately thereafter, the trial court addressed
the defendant, stating: “I want to be sure you understand, as your attorney said, that a
conviction will have an effect on your immigration status and that effect would be
deportation, which is now called removal, exclusion from the United States and denial of
naturalization under the laws of the United States. Do you understand[?]” Id. at 1214-15
(brackets omitted). In response, the defendant stated that he understood and that he still
desired to plead guilty. See id. at 1215. The trial court accepted the defendant’s guilty
plea. See id. Later, the defendant filed a motion for relief or, alternatively, a petition for
a writ of habeas corpus, which the trial court summarily denied. See id. The defendant
filed a motion for reconsideration, and the trial court conducted a hearing, after which the
trial court denied the motion. See id. The defendant then appealed. See id.
On appeal, the Court of Appeals of New Mexico explained that, in a previous case,
the Supreme Court of New Mexico had “clearly articulated what constitute[d] effective
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assistance of counsel with respect to advising a criminal defendant of the immigration
consequences of his or her plea.” Id. at 1218. Specifically, in Favela, id., the Court
observed that, in State v. Paredez, 101 P.3d 799, 805 (N.M. 2004), the Supreme Court of
New Mexico “held that ‘criminal defense attorneys are obligated to determine the
immigration status of their clients. If a client is a non-citizen, the attorney must advise that
client of the specific immigration consequences of pleading guilty, including whether
deportation would be virtually certain.’” The Court further explained the holding of
Paredez as follows:
In so holding, our Supreme Court agreed with those jurisdictions that have
held that an affirmative misrepresentation by counsel as to the deportation
consequences of a guilty plea is objectively unreasonable and went one step
further in concluding that an attorney’s non-advice to an alien defendant on
the immigration consequences of a guilty plea would also be deficient
performance. According to our Supreme Court, advice that a defendant
“could” or “might” be deported is also inadequate, as such advice is
incomplete and therefore inaccurate because stating that a person ‘may’ be
subject to deportation implies there is some chance, potentially a good
chance, that the person will not be deported. This Court has since interpreted
Paredez as requiring a definite prediction as to the likelihood of deportation
based on the crimes to which a defendant intends to plead and the crimes
listed in federal law for which a defendant can be deported.
Favela, 311 P.3d at 1218 (citations, ellipsis, brackets, and some internal quotation marks
omitted). The Court observed that, following Paredez, the Supreme Court decided Padilla
and “similarly held that counsel must inform her client whether his plea carries a risk of
deportation.” Favela, 311 P.3d at 1218 (citations and internal quotation marks omitted).
The Court noted, however, that the holding in Padilla, although “similar in nature to
Paredez, was not as broad on the issue of what constitutes deficient representation.”
Favela, 311 P.3d at 1218. Because Paredez was broader and contained no limitation, as in
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Padilla, distinguishing between where “the deportation consequence is truly clear” and
where “the law is not succinct and straightforward[,]” the Court held that it was bound by
Paredez. Favela, 311 P.3d at 1218 (citation omitted).
The Court further held that, given the holding in Paredez, “a court’s warning or
advisement to a defendant regarding possible immigration consequences of accepting a
plea is never, by itself, sufficient to cure the prejudice that results from ineffective
assistance of counsel[.]” Favela, 311 P.3d at 1222. Indeed, the Court determined that,
“[b]ecause a defendant whose attorney has not advised him of the immigration
consequences of his plea has likely not advocated for a plea aimed at avoiding automatic
deportation, the trial court’s advice to a defendant that he may or will be deported cannot
cure counsel’s deficient representation.” Id. Applying New Mexico precedent, the Court
ultimately remanded the case to the trial court for further proceedings, through which the
trial court could “hear evidence and reconsider both prongs of [the d]efendant’s ineffective
assistance of counsel claim.” Id. at 1223.
By contrast, in Chacon, 409 S.W.3d at 534, 532, the Court of Appeals of Missouri
held that a defendant’s counsel’s performance was not deficient where the defendant’s
counsel advised the defendant that “if he pled guilty to the charges, he would very likely be
deported and wouldn’t be able to come back” and advised the defendant to seek advice
from an immigration lawyer. (Emphasis in original) (internal quotation marks omitted).
In Chacon, id. at 531, the defendant, a native of Mexico, was charged with possession of
cocaine and forgery. At the plea hearing, although there was no discussion of the risk of
deportation, the defendant confirmed, among other things, that he had discussed his case
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with his counsel and that he was happy with his counsel’s representation. See id. at 532.
The defendant later filed a motion, contending that he had received ineffective assistance
of counsel because his counsel had failed to advise him that he would be deported if he
pleaded guilty. See id. The trial court conducted an evidentiary hearing, at which the
defendant’s counsel testified that the defendant had asked him about the risk of deportation,
and that he advised the defendant “that if he pled guilty to the charges, he would very likely
be deported and wouldn’t be able to come back” and that the defendant should seek advice
from an immigration lawyer. Id. (emphasis in original). The trial court denied the motion,
and the defendant appealed. See id. at 532-33.
The Court of Appeals of Missouri first examined the defendant’s convictions and
the applicable immigration law, stating that the defendant’s visa had expired. See id. at
534. According to the Court, the law was “clear that, after pleading guilty to cocaine
possession and forgery, [the defendant] was deportable, meaning that deportation was
virtually inevitable.” Id. (citation and internal quotation marks omitted). The Court
rejected the defendant’s contention that, under Padilla, his counsel “was required to
specifically inform him that he was subject to mandatory deportation.” Chacon, 409
S.W.3d at 536 (internal quotation marks omitted). Rather, the Court explained that, under
Padilla, “when the deportation consequence is clear, as it was in Padilla and as it [was
t]here, defense counsel has a[ ] clear duty to give correct advice.” Chacon, 409 S.W.3d at
537 (citation omitted). Applying that standard, the Court concluded that the defendant’s
“counsel satisfied the performance requirement set forth in Padilla” by advising the
defendant as he did. Chacon, 409 S.W.3d at 537. The Court explained that “Padilla does
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not require that counsel use specific words to communicate to a defendant the
consequences of entering a guilty plea[,]” but instead “requires that counsel correctly
advise his client of the risk of deportation so that the plea is knowing and voluntary.”
Chacon, 409 S.W.3d at 537 (emphasis in original). Thus, by advising the defendant that
deportation was “very likely,” the defendant’s counsel adequately advised the defendant of
the risk of deportation. Id.
Similarly, in Shata, 868 N.W.2d at 96, the Supreme Court of Wisconsin held that a
defendant’s counsel “did not perform deficiently” where the defendant’s counsel correctly
advised the defendant “that his guilty plea carried a ‘strong chance’ of deportation.” In
Shata, id., the defendant, an Egyptian foreign national, was charged with one count of
possession with intent to deliver marijuana, as party to a crime. At a plea hearing, the
defendant’s counsel informed the trial court that the defendant did not want to be deported;
the parties then conducted an off-the-record discussion. See id. at 97. Before the trial
court, the prosecutor presented the plea agreement, and the defendant’s counsel stated that
he had informed the defendant “that there’s a potential he could be deported.” Id. (internal
quotation marks omitted). The defendant’s counsel further stated: “He’s not a United
States citizen, [] there’s a potential he could be deported.” Id. The defendant stated that
he understood and that he wished to plead guilty. See id. The trial court informed the
defendant of the possible immigration consequences of pleading guilty, stating: “[I]f you’re
not a citizen of the United States [] a plea of guilty or no contest for the offense with which
you are charged may result in deportation, the exclusion from admission to this country, or
the denial of naturalization under federal law.” Id. The defendant stated that he understood
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and proceeded to plead guilty. See id. at 97-98. The trial court thereafter observed that the
defendant had signed a plea questionnaire and waiver of rights form that contained the
same immigration warning that the trial court had given in court. See id. at 98. The trial
court ascertained with both the defendant and the defendant’s counsel that the two had
discussed and gone over the forms. See id. The trial court then accepted the guilty plea.
See id.
Several months later, the defendant moved to withdraw the guilty plea, arguing that
his counsel should have advised him that he was subject to mandatory deportation. See id.
at 99. At a hearing on the motion, the defendant’s counsel testified that he had informed
the defendant “of the potential for deportation if convicted[,]” but had not told the
defendant that deportation was mandatory. See id. The defendant’s counsel also testified
that, prior to the guilty plea, he had advised the defendant “that he may be deported, that
there’s a strong chance that he could be deported.” Id. at 99-100 (ellipsis and internal
quotation marks omitted). By contrast, the defendant testified that he would not have
pleaded guilty had he known that he would be subject to mandatory deportation, and
testified that his counsel had told him: “[I]f you get probation, you’re not going to be
deported.” Id. at 100 (internal quotation marks omitted). The trial court ultimately found
the defendant’s counsel “more credible and that counsel had informed [the defendant] of a
strong likelihood of deportation if convicted”; accordingly, the trial court found that the
defendant’s counsel had not performed deficiently, and that the defendant had not received
ineffective assistance of counsel. Id. The trial court denied the motion to withdraw the
guilty plea; the defendant appealed; the intermediate appellate court reversed the trial
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court’s judgment; and the State of Wisconsin petitioned for review. See id. at 101.
At the outset, the Supreme Court of Wisconsin held that the defendant had not
received ineffective assistance of counsel, explaining:
[The defendant]’s attorney did not perform deficiently. [The defendant]’s
attorney was required to “give correct advice” to the defendant about the
possible immigration consequences of his conviction. Padilla, 559 U.S. at
369[. The defendant]’s attorney satisfied that requirement by correctly
advising [the defendant] that his guilty plea carried a “strong chance” of
deportation. [The defendant]’s attorney was not required to tell him that his
guilty plea would absolutely result in deportation. In fact, [the defendant]’s
deportation was not an absolute certainty. Executive action, including the
United States Department of Homeland Security’s exercise of prosecutorial
discretion, can block the deportation of deportable aliens. Because [the
defendant]’s trial counsel did not perform deficiently, we do not address the
issue of prejudice.
Id. at 96 (emphasis in original) (footnote omitted). The Court explained that the parties
agreed that the defendant’s “conviction clearly made him deportable[,]” but that the issue
of whether the defendant’s “counsel performed deficiently hinge[d] on whether he gave
[the defendant] correct advice regarding the possibility of being deported.” Id. at 103. To
that end, the Court observed that, in Padilla, 559 U.S. at 369, the Supreme Court stated that
“when the deportation consequence is truly clear, . . . the duty to give correct advice is
equally clear.” Shata, 868 N.W.2d at 108 (ellipsis and emphasis in original).
As to whether the defendant’s counsel had given the defendant correct advice, in
Shata, id. at 108-09, the Court explained in detail why “deportation is not an absolutely
certain consequence of a conviction for a deportable offense,” stating:
[W]hether immigration personnel would necessarily take all the steps needed
to institute and carry out an alien’s actual deportation is not an absolute
certainty[.] For example, prosecutorial discretion and the current
administration’s immigration policies provide possible avenues for
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deportable aliens to avoid deportation. In fact, the executive branch has
essentially unreviewable prosecutorial discretion with respect to
commencing deportation proceedings, adjudicating cases, and executing
removal orders.
Indeed, the secretary of the United States Department of Homeland
Security (“DHS”) recently explained that the DHS, which is responsible for
enforcing the nation’s immigration laws, must exercise prosecutorial
discretion in the enforcement of the law. Due to limited resources, DHS
cannot respond to all immigration violations or remove all persons illegally
in the United States. DHS may exercise prosecutorial discretion at any stage
of an enforcement proceeding. In the immigration context, prosecutorial
discretion should apply not only to the decision to issue, serve, file, or cancel
a Notice to Appear, but also to a broad range of other discretionary
enforcement decisions, including deciding whether to settle or dismiss a case
and whether to grant deferred action or a stay of removal[.] Deportation is
not mandatory for a felony conviction. Rather, certain aliens, including those
convicted of a felony, are generally prioritized for removal unless, based on
the totality of the circumstances, the alien should not be an enforcement
priority. Relevant factors include an alien’s length of time in the United
States and family or community ties in the United States. Because
deportation is not an absolutely certain consequence of a conviction for
a deportable offense, Padilla does not require an attorney to advise an
alien client that deportation is an absolute certainty upon conviction of
a deportable offense, including a controlled substance offense.
(Bolding added) (citations, brackets, ellipses, footnotes, italics, and most internal quotation
marks omitted). As the Court further explained, in Padilla, the Supreme Court “never
stated that Padilla would absolutely be deported[,]” but rather, the context made clear that
the Supreme “Court meant that Padilla clearly was deportable under that immigration
statute, not that he clearly would be deported.” Shata, 868 N.W.2d at 109 (citations
omitted). According to the Supreme Court of Wisconsin, in Padilla, the Supreme Court
simply held that counsel must advise his or her client that his or her plea carries a risk of
deportation, but “did not hold that an attorney must inform an alien client that a conviction
for a deportable offense will absolutely result in deportation” and “did not require an
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attorney [to] use any particular words, such as ‘inevitable deportation,’ or to even convey
the idea of inevitable deportation.” Shata, 868 N.W.2d at 110 (citations and emphasis
omitted).
After thoroughly reviewing the Supreme Court’s holding in Padilla, in Shata, 868
N.W.2d at 112-13, the Supreme Court of Wisconsin rejected the defendant’s contention
that counsel needed to have advised him that he would absolutely be deported if convicted,
explaining:
[The defendant]’s position—that his attorney was required to tell him
that “his conviction would absolutely result in deportation”—is unworkable
and untenable. That advice would be incorrect because a defense attorney
does not control and cannot know with certainty whether the federal
government will deport an alien upon conviction. If we were to adopt [the
defendant]’s position, the unintended consequence may be that an alien
defendant could be essentially precluded from ever pleading guilty or no
contest to a crime. Why would the State make a plea bargain offer to such a
defendant knowing that it could almost always be withdrawn? If we adopted
[the defendant]’s position, then an alien might not ever be able to knowingly,
intelligently, and voluntarily plead or even decide to proceed to trial. Padilla
requires advice to be correct and, unlike in Padilla, the advice that [the
defendant] received was actually correct. [The defendant]’s arguments fail
because the advice that he received—that there was a “strong chance” of
deportation—was correct and accurate and he entered a knowing, intelligent,
and voluntary plea with that understanding.
The Court concluded that, under the circumstances of the case, the defendant’s counsel did
not perform deficiently in advising the defendant about the risk of deportation because that
advice was correct. See id. at 114.
In Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. Ct. 2013), appeal
denied, 86 A.3d 233 (Pa. 2014), the Superior Court of Pennsylvania held that, under
Padilla, to give “correct advice” did not “necessarily mean[ that] counsel, when advising
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[the defendant] about his deportation risk, needed to tell [the defendant] he definitely would
be deported.” In Escobar, 70 A.3d at 840, prior to pleading guilty to possession with intent
to deliver a controlled substance, the defendant’s counsel advised the defendant that it was
“‘likely and possible’ that deportation proceedings would be initiated against him[,]” and
the defendant “signed a written plea colloquy containing two entries indicating [the
defendant] understood deportation was possible.” The defendant later filed a petition for
post-conviction relief, contending that his counsel provided ineffective assistance by
“failing to properly advise him of the deportation consequences” of pleading guilty. Id.
At a post-conviction relief hearing, the defendant’s counsel testified that he advised the
defendant, “before he pled guilty, that he faced a substantial deportation risk.” Id. The
trial court granted the defendant’s petition and vacated the conviction, and the
Commonwealth of Pennsylvania appealed. See id.
In explaining that the defendant’s counsel had not provided deficient representation
because he had provided the defendant with correct advice about the immigration
consequences of the plea, the Court stated:
It is true that 8 U.S.C. § 1227(a)(2)(B)(i) does lead to the conclusion that [the
defendant]’s [] conviction certainly made him deportable. However,
whether the U.S. Attorney General and/or other personnel would necessarily
take all the steps needed to institute and carry out [the defendant]’s actual
deportation was not an absolute certainty when he pled. Given that [the
defendant] did know that deportation was possible, given that counsel
advised him there was a substantial risk of deportation, and given that
counsel told [the defendant] it was likely there would be deportation
proceedings instituted against him, we find counsel’s advice was, in fact,
correct.
Escobar, 70 A.3d at 841 (emphasis in original). The Court explained that, under its reading
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of Padilla and the applicable immigration statute, counsel is not required to advise a
defendant that “actual deportation proceedings are a certainty[.]” Escobar, 70 A.3d at 842.
Rather, the Superior Court of Pennsylvania stated that, in Padilla, the Supreme Court held
that counsel must simply inform the client about the risk of deportation attendant to a plea.
See Escobar, 70 A.3d at 842. Because the defendant’s counsel had, in fact, advised the
defendant that the plea carried a risk of deportation and that deportation proceedings were
likely, the Court concluded that the defendant’s “counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Id.
In Facey v. State, 143 So. 3d 1003, 1003 (Fla. Dist. Ct. App. 2014) (per curiam), a
District Court of Appeal of Florida held that the record in that case refuted the defendant’s
claims of ineffective assistance of counsel. In Facey, id., the defendant, a native of Jamaica
who was a legal permanent resident, entered into a negotiated plea agreement for grand
theft. The defendant signed a written plea form that advised him that the plea “‘will’ result
in his deportation”; in the form, the defendant acknowledged that he had read and
understood the plea form by initialing and signing it. Id. at 1004. At the plea proceeding,
the trial court advised the defendant that entering a plea could subject him to “being
deported” and that he “could be asked by the United States Immigration to leave the
country permanently as a result of th[e] plea, or held by immigration, picked up by
immigration and held by immigration[.]” Id. The defendant stated that he understood and
affirmatively advised the trial court that he had spoken about the consequences with his
counsel and did not desire to speak with anyone else about the immigration consequences
of his plea. See id. The trial court confirmed with the defendant’s counsel that the
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defendant’s counsel had discussed the immigration consequences with the defendant. See
id. Later, the defendant filed a motion for postconviction relief, contending that his counsel
had provided ineffective assistance by failing to advise him “about the possible adverse
immigration consequences” of pleading guilty and failing to advise him to consult with an
immigration lawyer. Id. (citation and internal quotation marks omitted). The trial court
denied the motion, and the defendant appealed. See id.
The District Court of Appeal of Florida concluded that the record expressly refuted
the defendant’s contention that his counsel had failed to tell him anything about the
immigration consequences of pleading guilty, and instead demonstrated that the defendant
“entered the plea aware of the possibility of deportation[.]” Id. The Court further observed
that it was not “clear from the face of the [immigration] statute” “that the grand theft
conviction . . . subject[ed] him to automatic deportation[.]” Id. at 1005. According to the
Court, “Padilla does not require defense attorneys to provide perfect advice about
immigration consequences.” Id. Ultimately, the Court “decline[d] to extend Padilla to
create an impractical requirement that criminal defense attorneys provide clients with
perfect immigration advice.” Id. Because the defendant “entered his plea with eyes wide
open and aware of the risk of deportation[,]” he had to “face[] the very consequence that
he fully acknowledged understanding when he accepted the plea.” Id. See also People v.
Arendtsz, 247 Cal. App. 4th 613, 617, 616 (Cal. Ct. App. 2016) (A Court of Appeal of
California held that a “[d]efendant was correctly advised of the immigration consequences
of his nolo contendere plea as required by law” where, prior to the entry of the plea, the
defendant’s counsel twice advised the defendant that the plea would result in adverse
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immigration consequences, and specifically stated that a conviction “will result in
deportation[.]” (Emphasis omitted)); Neufville v. State, 13 A.3d 607, 614 (R.I. 2011) (The
Supreme Court of Rhode Island stated that, under Padilla, 559 U.S. at 368, “[c]ounsel is
not required to inform their clients that they will be deported, but rather that a defendant’s
‘plea would make the defendant eligible for deportation.’” (Emphasis in original) (brackets
omitted)).
Analysis
Here, we hold that, where the coram nobis court found that trial counsel advised
Sanmartin Prado that “this was a ‘deportable offense’ and [Sanmartin Prado] ‘could be
deported . . . if the federal government chose to initiate deportation proceedings,’ and it
was ‘possible’ that [Sanmartin Prado] would be deported[,]” and where trial counsel
testified that he also advised Sanmartin Prado that “there could and probably would be
immigration consequences” and “that it was a deportable or a possibly deportable offense,”
and the advice was given before the plea of not guilty by way of an agreed statement of
facts proceeding, such advice was not constitutionally deficient, but rather was “correct
advice” about the “risk of deportation,” as required by Padilla, 559 U.S. at 369, 374.
As an practical matter, we first address whether pleading not guilty by way of an
agreed statement of facts is the functional equivalent of pleading guilty for purposes of
advisement of immigration consequences. In Taylor v. State, 388 Md. 385, 396-97, 879
A.2d 1074, 1081 (2005), this Court explained that proceeding by way of an agreed
statement of facts is permissible, explaining the process as follows:
Under an agreed statement of facts both the State and the defense agree as to
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the ultimate facts. Then the facts are not in dispute, and there can be, by
definition, no factual conflict. The trier of fact is not called upon to determine
the facts as the agreement is to the truth of the ultimate facts themselves.
There is no fact-finding function left to perform. To render judgment, the
court simply applies the law to the facts agreed upon[.]
(Citation and brackets omitted).10 See also Bishop v. State, 417 Md. 1, 20, 7 A.3d 1074,
1085 (2010) (This Court described in detail the various types of pleas and described a plea
of not guilty by way of an agreed statement of facts as a “hybrid plea” existing “[a]midst
the spectrum between not guilty pleas and guilty pleas[.]”). In Sutton v. State, 289 Md.
359, 366, 424 A.2d 755, 759 (1981), this Court explained that “[t]rying a case on an agreed
statement of facts ordinarily does not convert a not guilty plea into a guilty plea.” In that
case, however, we held that the defendant’s plea of not guilty by way of an agreed statement
of facts “was the functional equivalent of a guilty plea[,]” explaining:
[T]he totality of the circumstances, and in particular, the facts that the
[defendant]’s plea was entered at the direction of the trial court and that she
was aware that she would be placed on probation, shows that the proceeding
was not in any sense a trial and offered no reasonable chance that there would
be an acquittal.
Id. at 366, 424 A.2d at 759.
10
Additionally, the Committee note to Maryland Rule 4-242(a) states:
It has become common in some courts for defendants to enter a plea of not
guilty but, in lieu of a normal trial, to proceed on an agreed statement of
ultimate fact to be read into the record or on a statement of proffered evidence
to which the defendant stipulates, the purpose being to avoid the need for the
formal presentation of evidence but to allow the defendant to argue the
sufficiency of the agreed facts or evidence and to appeal from a judgment of
conviction. That kind of procedure is permissible only if there is no material
dispute in the statement of facts or evidence.
(Citations omitted).
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Under the circumstances of this case, we conclude that Sanmartin Prado’s plea of
not guilty by way of an agreed statement of facts was the functional equivalent of pleading
guilty for purposes of advisement of immigration consequences. To be sure, Sanmartin
Prado did not enter, and was not convicted based on, a guilty plea, a conditional plea of
guilty, or a plea of nolo contendere, as was the circumstance in Padilla, Denisyuk, and the
other cases discussed above. Rather, Sanmartin Prado entered into a plea agreement under
which he would proceed by way of a not guilty agreed statement of facts on the charge of
second-degree child abuse, and, “[u]pon a finding of guilt,” the State would recommend a
sentence of ten years’ imprisonment with all but one year suspended, and the State would
nol pros the remaining charges for first-degree child abuse causing severe physical injury
and second-degree assault. The State’s recitation of the plea agreement made it clear that
both parties expected that Sanmartin Prado would be convicted of second-degree child
abuse based on the agreed statement of facts. During the waiver colloquy conducted by
trial counsel, trial counsel explained that, by proceeding with a not guilty agreed statement
of facts, Sanmartin Prado would be waiving his right to a jury trial as well as his right to
“a Court trial or a bench trial[,]” “a formal contested trial in front of a judge.” Sanmartin
Prado affirmatively responded that he understood. Sanmartin Prado also affirmatively
responded that he understood that he was waiving his right for trial counsel “to present a
formal defense[.]” Sanmartin Prado did not reserve the right to appeal any matter
associated with the not guilty agreed statement of facts plea. Nor did the not guilty agreed
statement of facts suggest the existence of any factual or legal issues that were to be
resolved by the circuit court. Under these circumstances, where a conviction was almost a
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certainty given the State’s recitation of the plea agreement and the waiver colloquy that
followed, we conclude that Sanmartin Prado’s plea of not guilty by way of an agreed
statement of facts was the functional equivalent of a guilty plea; and, as such, the standards
for advisement of immigration consequences during a guilty plea are applicable.
Having concluded as much, we now turn to whether trial counsel’s advisement
about the immigration consequences was constitutionally deficient because trial counsel
“qualified” his advice, or whether the advice was correct advice that adequately informed
Sanmartin Prado of the risk of deportation. We begin by closely examining the Supreme
Court’s holding in Padilla. As discussed above, in Padilla, 559 U.S. at 374, at bottom, the
Supreme Court simply held “that counsel must inform [his or] her client whether his [or
her] plea carries a risk of deportation.” As to that holding, the Supreme Court instructed
that, where “the deportation consequences of a particular plea are unclear or uncertain[,]”
“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. at 369
(footnote omitted). On the other hand, where “the deportation consequence is truly clear,
. . . the duty to give correct advice is equally clear.” Id.
Significantly, in Padilla, id. at 368-69, in considering the immigration consequences
of Padilla’s guilty plea in light of the relevant immigration statute, the Supreme Court never
stated that Padilla would absolutely be deported or that deportation would occur with
certainty. Rather, the Supreme Court stated that “the terms of the relevant immigration
statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s
conviction[,]” and that Padilla’s “plea would make him eligible for deportation[.]” Id. at
- 48 -
368. The Supreme Court also determined that “[t]he consequences of Padilla’s plea could
easily be determined from reading the removal statute[,]” and that Padilla’s “deportation
was presumptively mandatory[.]” Id. at 369. When read in context, these remarks by the
Supreme Court make clear that, in light of the relevant immigration statute—which
provided that an alien convicted of a violation of any law related to a controlled substance
other than a single offense involving possession for one’s own use of thirty grams or less
of marijuana is “deportable”—Padilla’s conviction made him “deportable,” nothing more
and nothing less. Indeed, in Padilla, the Supreme Court did not state or require that defense
counsel advise a noncitizen client “that deportation is an absolute certainty upon conviction
of a deportable offense, including a controlled substance offense.” Shata, 868 N.W.2d at
109 (citing Escobar, 70 A.3d at 841-42). Rather, defense counsel must advise of the risk
of deportation and provide correct advice where the deportation consequence is clear. See
Padilla, 559 U.S. at 374, 369.
To be sure, in Padilla, id. at 360, the Supreme Court stated: “We agree with Padilla
that constitutionally competent counsel would have advised him that his conviction for
drug distribution made him subject to automatic deportation.” (Emphasis added).
However, we agree with the Supreme Court of Wisconsin that, by stating that Padilla was
“subject to automatic deportation,” “the [Supreme] Court meant that Padilla was
automatically deportable upon conviction, not that he would be automatically deported.”
Shata, 868 N.W.2d at 109-10. Indeed, in Padilla, 559 U.S. at 363-64, the Supreme Court
explained that, although immigration law has undergone significant changes over the past
decades and “if a noncitizen has committed a removable offense after the 1996 effective
- 49 -
date of the[] amendments, his [or her] removal is practically inevitable[,]” there still exists
“the possible exercise of limited remnants of equitable discretion vested in the Attorney
General to cancel removal for noncitizens convicted of particular classes of offenses.”
(Footnote omitted). In other words, being “subject to automatic deportation” is not the
equivalent of being automatically deported, because deportation is not an absolute certainty
even if one is subject to automatic deportation. Moreover, in Shata, 868 N.W.2d at 110,
the Supreme Court of Wisconsin aptly explained:
The Padilla Court did not require that counsel advise that the [Department
of Homeland Security] would necessarily initiate and prosecute a removal
proceeding against Padilla and enforce a removal order against him because
that was far from certain. Rather, the [Supreme] Court’s “overall emphasis
was that the deportation statute in question makes most drug convicts subject
to deportation in the sense that they certainly become deportable, not in the
sense that plea counsel should know and state with certainty that the federal
government will, in fact, initiate deportation proceedings.”
(Quoting Escobar, 70 A.3d at 842).
In short, nothing in the Supreme Court’s holding in Padilla requires defense counsel
to inform noncitizens that a conviction for a deportable offense will absolutely or with
certainty result in the Federal government, i.e., the Department of Homeland Security,
initiating deportation proceedings. The Supreme Court did not discuss, let alone hold, that
defense counsel must use specific magic words in advising of the risk of deportation, such
as “absolute deportation, “certain deportation,” or “inevitable deportation” or the like. As
the Court of Appeals of Missouri remarked: “Padilla does not require that counsel use
specific words to communicate to a defendant the consequences of entering a guilty plea.
Rather, it requires that counsel correctly advise his [or her] client of the risk of deportation
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so that the plea is knowing and voluntary.” Chacon, 409 S.W.3d at 538 (emphasis in
original). Nor did the Supreme Court hold that defense counsel must become experts in
immigration law to provide representation to a noncitizen client at a guilty plea proceeding.
The Supreme Court expressly recognized that “[i]mmigration law can be complex, and it
is a legal specialty of its own. Some members of the bar who represent clients facing
criminal charges, in either state or federal court or both, may not be well versed in it.”
Padilla, 559 U.S. at 369. Stated otherwise, the Supreme Court apparently acknowledged
that the intricacies of immigration law are not necessarily something with which defense
counsel are familiar or skilled. And, to that end, rather than holding that defense counsel
must become experts in immigration law for purposes of advising noncitizen clients of the
risks of deportation, in Padilla, id. at 366, the Supreme Court essentially extended the
principle of Strickland that “[t]he proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” (Quoting Strickland, 466 U.S. at
688). According to the Supreme Court, “[t]he weight of prevailing professional norms
supports the view that counsel must advise [his or] her client regarding the risk of
deportation.” Padilla, 559 U.S. at 367 (citations omitted). Notably, in Padilla, the Supreme
Court did not conclude that “prevailing professional norms” require defense counsel to
inform noncitizen clients that convictions for deportable offenses will absolutely or with
certainty lead to deportation. Instead, the Supreme Court stated that “[i]t is quintessentially
the duty of counsel to provide [his or] her client with available advice about an issue like
deportation and the failure to do so clearly satisfied the first prong of the Strickland
analysis.” Id. at 371 (citation and internal quotation marks omitted).
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And, lest we forget to mention it, the Supreme Court decided Padilla, 559 U.S. at
359, against the backdrop, and in the context, of affirmative misadvice having been given.
Padilla’s counsel provided incorrect, erroneous advice by advising that Padilla “did not
have to worry about immigration status since he had been in the country so long.” Id. As
the Supreme Court explained, “Padilla’s counsel provided him false assurance that his
conviction would not result in his removal from this country.” Id. at 368. Thus, it was
“not a hard case in which to find deficiency: The consequences of Padilla’s plea could
easily be determined from reading the removal statute, his deportation was presumptively
mandatory, and his counsel’s advice was incorrect.” Id. at 368-69.
By contrast, in this case, trial counsel provided correct immigration advice to
Sanmartin Prado. The circuit court expressly credited trial counsel’s testimony at the
coram nobis hearing, that trial counsel met with Sanmartin Prado and explained the
immigration consequences of a conviction, including that the offense was a “deportable
offense,” that Sanmartin Prado “could be deported . . . if the federal government chose to
initiate deportation proceedings,” and thus that it was “possible” that Sanmartin Prado
would be deported. This advice—that second-degree child abuse is a deportable offense—
was correct advice. See 8 U.S.C. § 1227(a)(2)(E)(i) (“Any alien who at any time after
admission is convicted of a crime of . . . child abuse . . . is deportable.”).11 Thus, by advising
11
We need not address whether second-degree child abuse is also an aggravated
felony under 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated
felony at any time after admission is deportable.”) because both 8 U.S.C. § 1227(a)(2)(E)(i)
or 8 U.S.C. § 1227(a)(2)(A)(iii) state that the offenses described by those subsections are
“deportable.”
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Sanmartin Prado that the offense of second-degree child abuse was a deportable offense,
trial counsel provided “correct advice” about the “risk of deportation[,]” as required by
Padilla, 559 U.S. at 369, 374. Nothing more was required of trial counsel under Padilla
and his performance was not constitutionally deficient. In our view, although the Supreme
Court has not addressed the situation in which defense counsel advised a noncitizen
defendant that an offense is “deportable” and that the defendant could be deported if the
Federal government chose to initiate deportation proceedings, trial counsel’s advice in this
case fully complied with the Supreme Court’s holding in Padilla.
Significantly, trial counsel’s performance in this case is readily distinguishable from
those cases in which a defendant’s counsel’s performance was constitutionally deficient
due to a failure to advise the defendant whatsoever of the immigration consequences of the
defendant’s plea or affirmatively misadvising the defendant about the immigration
consequences of the defendant’s plea. See, e.g., Denisyuk, 422 Md. at 482, 30 A.3d at 925
(The defendant’s counsel “was obligated, but failed, to provide advice on the deportation
consequences of [the defendant]’s plea, [and the defendant]’s trial counsel’s performance
was constitutionally deficient” where the defendant’s counsel failed to advise the defendant
of the immigration consequences of the plea altogether.); Bonilla, 637 F.3d at 984 (The
defendant “received ‘inadequate legal advice’ about the immigration consequences of his
plea” because he “received no advice about the immigration consequences before entering
his plea, only learning afterward that pleading guilty would almost certainly result in
deportation.” (Emphasis in original) (citations omitted)); Akinsade, 686 F.3d at 250 (The
defendant’s counsel’s performance was constitutionally deficient where he “misadvised
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[the defendant] that he could not be deported based on th[e] single offense” and “that he
could only be deported if he had two felony convictions.”). Additionally, this case is
distinguishable from Rodriguez-Vega, 797 F.3d at 787, in which the Ninth Circuit
concluded that “counsel’s statements made after [the defendant] had already pled guilty,
that she faced a ‘high likelihood’ of removal, [do not] satisfy his duty to accurately advise
his client of the removal consequences of a plea before she enters into it.” (Emphasis in
original) (citations omitted). By contrast, in this case, the circuit court expressly found as
a fact that, prior to the January 6, 2011 proceeding, trial counsel met with Sanmartin Prado
at the detention center and “explained the immigration consequences of a guilty verdict,
including that this was a ‘deportable offense’ and [Sanmartin Prado] ‘could be deported . .
. if the federal government chose to initiate deportation proceedings,’ and it was ‘possible’
that [Sanmartin Prado] would be deported.” In other words, unlike in Rodriguez-Vega, in
this case, trial counsel advised Sanmartin Prado before the plea of not guilty by way of an
agreed statement of facts.
This case is also distinguishable from Favela, 311 P.3d at 1218, where New Mexico
case law has developed to require that “criminal defense attorneys are obligated to
determine the immigration status of their clients. If a client is a non-citizen, the attorney
must advise that client of the specific immigration consequences of pleading guilty,
including whether deportation would be virtually certain.” (Citing Paredez, 101 P.3d at
805). Indeed, New Mexico case law requires “a definite prediction as to the likelihood of
deportation based on the crimes to which a defendant intends to plead and the crimes listed
in federal law for which a defendant can be deported.” Id. (citation and internal quotation
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marks omitted). In Favela, 311 P.3d at 1218, the Court of Appeals of New Mexico
expressly recognized that Padilla “was not as broad on the issue of what constitutes
deficient representation” in New Mexico, and that, in general, the New Mexico standard
was a higher standard than that in Padilla. For example, in New Mexico, an advisement
“that a defendant ‘could’ or ‘might’ be deported is [] inadequate[.]” Favela, 311 P.3d at
1218 (citation omitted). By contrast, in Maryland, neither this Court nor the Court of
Special Appeals has held that a defendant’s counsel must advise of the “specific
immigration consequences” attendant to a guilty plea, or that a defendant’s counsel must
advise “whether deportation would be virtually certain.” Id. In other words, Maryland
courts (with the exception of the Court of Special Appeals in this case) have not required
advisements above and beyond what Padilla, 559 U.S. at 374, 369, requires—that a
defendant’s counsel advise his or her client whether a plea “carries a risk of deportation”
and that such advice be “correct advice” where “the deportation consequence is truly clear”
based on the relevant immigration law.
Rather, we conclude that the holdings of Chacon, Shata, and Escobar are more
persuasive and analogous to the circumstances of this case. In each of those cases, the
courts held that the defendants’ counsel advisements about the risk of deportation, even
with the use of qualifying words, where such advice was correct advice, satisfied the
dictates of Padilla and were not constitutionally deficient. See Chacon, 409 S.W.3d at 534,
532 (The defendant’s counsel’s performance was not deficient where the defendant’s
counsel the defendant that “if he pled guilty to the charges, he would very likely be deported
and wouldn’t be able to come back” and advised the defendant to seek advice from an
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immigration lawyer. (Emphasis in original) (internal quotation marks omitted)); Shata,
868 N.W.2d at 96 (The defendant’s counsel “did not perform deficiently” where the
defendant’s counsel correctly advised the defendant that “his guilty plea carried a ‘strong
chance’ of deportation.”); Escobar, 70 A.3d at 841 (The defendant’s counsel did not
provide deficient representation where he gave correct advice about the immigration
consequences of the plea, including that “there was a substantial risk of deportation” and
that “it was likely there would be deportation proceedings instituted against [the
defendant.]”). Moreover, in each of those cases, the courts recognized that a conviction
for a deportable offense will not necessarily result in deportation, and that a defendant’s
counsel is not required to advise as much. See Chacon, 709 S.W.3d at 536-37 (“[The
defendant] argues that, under Padilla, his attorney was required to specifically inform him
that he was subject to ‘mandatory deportation.’ We disagree[.] . . . [The defendant]’s
convictions made his deportation presumptively mandatory, and the motion court could
properly find that advice that he ‘would very likely be deported and wouldn’t be able to
come back,’ did not fall below what is required of a reasonably competent attorney under
the circumstances.”); Shata, 868 N.W.2d at 114 (“We withdraw any language in [a prior
case] that suggests that Padilla requires an attorney to advise an alien client that a
conviction for a deportable offense will necessarily result in deportation.”); Escobar, 70
A.3d at 842 (“We do not read the statute or the court’s words [in Padilla] as announcing a
guarantee that actual deportation proceedings are a certainty such that counsel must advise
a defendant to that effect.”). Ultimately, as in Chacon, Shata, and Escobar, in this case,
Sanmartin Prado received similar and correct advice, namely, that “there could and
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probably would be immigration consequences as a result of the plea[,]” that the offense
“was a deportable or a possibly deportable offense[,]” and that Sanmartin Prado “could be
deported . . . if the federal government chose to initiate deportation proceedings[.]”
As discussed, trial counsel’s advice in this case was correct advice concerning the
risk of deportation that Sanmartin Prado faced if convicted of second-degree child abuse.
Trial counsel fully complied with the dictates of Padilla by advising Sanmartin Prado, prior
to the January 6, 2011 proceeding, that “this was a ‘deportable offense’ and [Sanmartin
Prado] ‘could be deported . . . if the federal government chose to initiate deportation
proceedings,’ and it was ‘possible’ that [Sanmartin Prado] would be deported.” Trial
counsel did not fail to advise Sanmartin Prado altogether about the risk of deportation nor
did trial counsel provide misadvice or false assurances along the lines of “you will not be
deported”; i.e., trial counsel in this case avoided providing no or incorrect advice. To be
certain, advising Sanmartin Prado that the offense was “deportable” is not the equivalent
of advising him that he will be automatically deported. But, as discussed above, Padilla
does not require the use of specific magic words when advising a client of the risk of
deportation, provided such advice is correct advice, nor does Padilla require that defense
counsel advise a noncitizen client that a conviction for a deportable offense will absolutely,
with certainty, or automatically, result in deportation. Importantly, the applicable
immigration statute, 8 U.S.C. § 1227, does not state that the offenses are “automatically
deportable” or that a noncitizen shall be “automatically deported”; rather, the statute
provides that convictions for the offenses render noncitizens “deportable.” Thus, contrary
to Sanmartin Prado’s contention, neither Padilla nor the statute requires that trial counsel
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advise that deportation was automatic or mandatory. And, in any event, that an offense is
“deportable” does not mean that deportation is an absolute certainty.
As discussed above, in Shata, 868 N.W.2d at 108-09, the Supreme Court of
Wisconsin explained why “deportation is not an absolutely certain consequence of a
conviction for a deportable offense,” stating:
[W]hether immigration personnel would necessarily take all the steps needed
to institute and carry out an alien’s actual deportation is not an absolute
certainty[.] For example, prosecutorial discretion and the current
administration’s immigration policies provide possible avenues for
deportable aliens to avoid deportation. In fact, the executive branch has
essentially unreviewable prosecutorial discretion with respect to
commencing deportation proceedings, adjudicating cases, and executing
removal orders.
Indeed, the secretary of the United States Department of Homeland
Security (“DHS”) recently explained that the DHS, which is responsible for
enforcing the nation’s immigration laws, must exercise prosecutorial
discretion in the enforcement of the law. Due to limited resources, DHS
cannot respond to all immigration violations or remove all persons illegally
in the United States. DHS may exercise prosecutorial discretion at any stage
of an enforcement proceeding. In the immigration context, prosecutorial
discretion should apply not only to the decision to issue, serve, file, or cancel
a Notice to Appear, but also to a broad range of other discretionary
enforcement decisions, including deciding whether to settle or dismiss a case
and whether to grant deferred action or a stay of removal[.] Deportation is
not mandatory for a felony conviction. Rather, certain aliens, including those
convicted of a felony, are generally prioritized for removal unless, based on
the totality of the circumstances, the alien should not be an enforcement
priority. Relevant factors include an alien’s length of time in the United
States and family or community ties in the United States. Because
deportation is not an absolutely certain consequence of a conviction for
a deportable offense, Padilla does not require an attorney to advise an
alien client that deportation is an absolute certainty upon conviction of
a deportable offense, including a controlled substance offense.
(Emphasis added) (citations, brackets, ellipses, footnotes, and most internal quotation
marks omitted). Indeed, the process that must occur between a defendant’s conviction for
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a deportable offense and actual deportation makes it less than certain or absolute that
deportation will actually result even if the defendant is convicted of a deportable offense.
Aside from the circumstance that deportation is not an absolute certainty upon
conviction of a deportable offense, from a practical standpoint, it would be unreasonable
to require defense counsel, without qualification, to advise noncitizen clients about the risk
of deportation such that defense counsel is placed in the position of having to provide
detailed and specific information about the risk of deportation and to essentially become
an immigration law specialist. Even in Padilla, 559 U.S. at 369, the Supreme Court
recognized that immigration law is a “complex” area of law and that there will
“undoubtedly be numerous situations in which the deportation consequences of a particular
plea are unclear or uncertain. Requiring defense counsel, who “may not be well versed in”
immigration law, id., to become legal experts concerning immigration law places too high
a burden on defense counsel, one that surely exceeds the “prevailing professional norms[,]”
id. at 367. Moreover, it may not always be easy to tell whether a particular immigration
statute is succinct, clear, and explicit. Indeed, even for those who are trained in
immigration law, it may be difficult to ascertain whether a particular crime would be
considered as a crime involving moral turpitude or as an aggravated felony. In short, it is
unreasonable to require that defense counsel investigate and determine that the Federal
government will, with certainty, actually deport a particular noncitizen defendant upon
conviction of a deportable offense.
As to Maryland Rule 4-242(f)(1), we conclude that trial counsel’s advice fully
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complied with the Rule.12 Maryland Rule 4-242(f)(1) provides:
Before the court accepts a plea of guilty, a conditional plea of guilty, or a
plea of nolo contendere, the court, the State’s Attorney, the attorney for the
defendant, or any combination thereof shall advise the defendant [] that by
entering the plea, if the defendant is not a United States citizen, the
defendant may face additional consequences of deportation, detention,
or ineligibility for citizenship[.]
(Emphasis added). Here, trial counsel’s advice fully comported with Maryland Rule 4-
242(f)(1), and indeed, by including the advisement that the offense of conviction was a
deportable offense and that Sanmartin Prado could be deported if the Federal government
chose to proceed, exceeded the requirements of the Rule. Maryland Rule 4-242(f)(1)
requires only that a defendant be advised that as a result of a guilty plea, the defendant may
face additional consequences of deportation, detention, or ineligibility for citizenship.
Maryland Rule 4-242(f)(1) does not require that any specific advice be given regarding the
probability or certainty of deportation or that any specific information be given regarding
any immigration law that may be applicable to a particular defendant’s case. In sum,
Maryland Rule 4-242(f)(1) requires only that a noncitizen defendant be alerted that he or
she may face immigration consequences. The coram nobis court’s findings support the
conclusion that trial counsel complied with Maryland Rule 4-242(f)(1). The coram nobis
court specifically found that trial counsel advised Sanmartin Prado that the offense of
conviction was a deportable offense and that he could be deported. Additionally, the record
12
By its plain language, Maryland Rule 4-242(f) is applicable only to “a plea of
guilty, a conditional plea of guilty, or a plea of nolo contendere[.]” However, because we
conclude above that Sanmartin Prado’s plea of not guilty by way of an agreed statement of
facts was the functional equivalent of a guilty plea, we shall address whether trial counsel’s
advice comported with Maryland Rule 4-242(f).
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reflects that at the January 6, 2011 proceeding, following a colloquy with Sanmartin Prado
concerning his immigration status, trial counsel stated: “And you understand that I’m not
making any promises and the Judge is not making any promises about what the federal
government could possibly do in the future with respect to reviewing this conviction.”
Sanmartin Prado stated that he understood. Together, the advisements prior to the January
6, 2011 proceeding and during the proceeding, indicate that Sanmartin Prado was made
aware that he “may face additional [immigration] consequences[.]” In other words, trial
counsel satisfied Maryland Rule 4-242(f)(1) in all its dictates.
As a related matter, we note that, by its plain language, contrary to Sanmartin
Prado’s assertion, Maryland Rule 4-242(f)(1) does not explicitly require that an advisement
about additional immigration consequences must be made on the record at a plea
proceeding. In distinct contrast, both Maryland Rule 4-242(c) (Plea of guilty) and
Maryland Rule 4-242(e) (Plea of nolo contendere) expressly require that an “examination
of the defendant on the record in open court conducted by the court, the State’s Attorney,
the attorney for the defendant, or any combination therefor” occur so that the trial court
can determine and announce on the record that the defendant is pleading voluntarily with
the understanding of the nature of the charge and the consequences of the plea. Each of
those subsections further states that, “before accepting the plea, the court shall comply with
section (f) of this Rule.” Neither Maryland Rule 4-242(c) or (e) provide, however, that
compliance with Maryland Rule 4-242(f) can only be achieved by an on-the-record
examination.
In any event, in this case, trial counsel advised Sanmartin Prado of the immigration
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consequences for a conviction for second-degree child abuse both on and off the record in
a manner that satisfied Maryland Rule 4-242(f)(1). The record of the January 6, 2011
proceeding demonstrates that trial counsel confirmed with Sanmartin Prado, on the record,
that Sanmartin Prado was a legal permanent resident, i.e. a noncitizen, and that the two had
engaged in discussions about Sanmartin Prado’s immigration status. Sanmartin Prado also
confirmed that he understood that neither trial counsel nor the circuit court were making
any promises concerning what the Federal government would do in the future, as to
immigration consequences, if Sanmartin Prado were convicted. Again, following the
coram nobis hearing, the circuit court found “as a fact” that trial counsel met with
Sanmartin Prado at the detention center prior to the January 6, 2011 proceeding, and that,
at that time, trial counsel “explained the immigration consequences of a guilty verdict,
including that this was a ‘deportable offense’ and [Sanmartin Prado] ‘could be deported . .
. if the federal government chose to initiate deportation proceedings[.]’” Under the
circumstances of this case, we conclude that trial counsel’s advisements satisfied Maryland
Rule 4-242(f)(1).
In sum, we hold that trial counsel did not perform in a constitutionally deficient
manner in advising Sanmartin Prado as to the immigration consequences attendant to a
conviction for second-degree child abuse in the manner in which he did. Sanmartin Prado
has failed to satisfy the first prong of Strickland, which requires that a “defendant must
show that counsel’s performance was deficient.” Taylor, 428 Md. at 399, 51 A.3d at 662
(quoting Strickland, 466 U.S. at 687). Accordingly, Sanmartin Prado has not demonstrated
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that he received ineffective assistance of counsel.13 As such, in the absence of
constitutionally deficient performance by counsel—i.e., in the absence of ineffective
assistance of counsel being rendered by trial counsel—we conclude that the circuit court
correctly denied Sanmartin Prado’s petition for coram nobis relief.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. RESPONDENT TO PAY
COSTS.
13
Having concluded that Sanmartin Prado failed to satisfy the first prong of the
Strickland test, we need not address the second prong of Strickland, concerning prejudice.
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