Mark DENISYUK v. STATE of Maryland
No. 45, Sept. Term, 2010
Court of Appeals of Maryland
Oct. 25, 2011
30 A.3d 914 | 422 Md. 462
Mary Ann Ince, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, *MURPHY, ADKINS and BARBERA, JJ.
BARBERA, J.
The Sixth Amendment to the United States Constitution grants to criminal defendants, among other rights, the right to the effective assistance of defense counsel. McMann v. Rich-
For the reasons that follow, we hold that Padilla applies to postconviction claims arising from guilty pleas obtained after the enactment of the
On November 2, 2006, in the Circuit Court for Harford County, Petitioner pleaded guilty pursuant to a binding plea agreement to the charge of second degree assault, in return for a sentence of 10 years of incarceration, with all but two years suspended. At that proceeding, the court engaged Petitioner in a colloquy to ensure that the plea was knowing and voluntary. The State then recited the factual basis for the plea and the court accepted the plea. At a subsequent hearing on December 7, 2006, the court imposed the sentence agreed upon, and included three years of supervised probation. The record of the plea hearing reflects that Petitioner was not advised by defense counsel, the court, or the State, of the immigration consequences of the plea. At the time of the conviction, Petitioner was a 31-year-old Latvian citizen who immigrated to the United States at the age of fourteen. As a result of the conviction, Petitioner is facing deportation.
Petitioner did not file an application for leave to appeal the guilty plea conviction. On October 15, 2007, he filed, through counsel, a Petition for Post-Conviction Relief, seeking vacation of the conviction and a new trial. Petitioner asserted two grounds in support of the petition: (1) the plea was rendered involuntary by the omission of advice concerning the potential immigration consequences of the plea; and (2) the failure of defense counsel to advise him of those potential consequences of his conviction constituted ineffective assistance of counsel in violation of the Sixth Amendment.
Petitioner was unable to be present at the hearing on the petition.3 He therefore submitted an affidavit to the postconviction court in which he swore that he would have rejected the plea offer and gone to trial had he been made aware of the immigration consequences of the plea. Petitioner wrote:
In light of the fact that neither my counsel, nor the prosecutor, nor the judge advised me that I could be deported, I had no idea that the guilty plea would not only result in my being incarcerated, but that a direct consequence of that guilty plea would result in the filing of deportation proceedings against me.
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Had I been aware of the aformentioned immigration consequences I now face, including an order or [sic] deportation, I never would have proceeded in the manner I did, rather, I would have exercised my right to a court or jury trial and any other right or defense which would have prevented the entry of a conviction for a deportable offense.
The postconviction court granted Petitioner relief in the form of a new trial, based on Petitioner‘s ineffective-counsel claim. The court, aware of the standard for identifying ineffective assistance of counsel in the guilty-plea context, see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), found that defense counsel‘s failure to advise Petitioner of the immigration consequences of his guilty plea fell below the range of conduct expected of reasonable defense counsel, and Petitioner was prejudiced thereby. With regard to the latter, the court relied on Petitioner‘s uncontroverted affidavit testimony that “but for trial counsel‘s conduct he would not have pled guilty and would have proceeded to trial.”
The State filed an application for leave to appeal the grant of postconviction relief.4 The Court of Special Appeals granted the petition on February 9, 2009, set the case on its regular appeal docket, and, in a reported decision, State v. Denisyuk, 191 Md.App. 408, 461, 991 A.2d 1275, 1306 (2010), reversed the grant of postconviction relief. Citing caselaw from Maryland
The decision of the Court of Special Appeals pre-dates by two days the Supreme Court‘s decision in Padilla. The Padilla Court rejected as “ill-suited” the distinction between consequences of a guilty plea that are “direct” and those that are “collateral” insofar as immigration consequences are concerned, and the Court held that the Sixth Amendment right to effective assistance of counsel requires defense counsel to notify his or her client of the deportation consequences of the guilty plea. 559 U.S. at —, 130 S.Ct. at 1482.
We granted a writ of certiorari to address the following questions presented by Petitioner:
- In light of the Supreme Court‘s decision in Padilla v. Kentucky, [559] U.S. —, [130 S.Ct. 1473] (filed March 31, 2010) [(2010)], did the Court of Special Appeals err in holding that defense counsel can never be ineffective for failing to advise his or her client of the immigration consequences of a guilty plea?
- Is Petitioner, a Latvian immigrant, entitled to postconviction relief as a result of his attorney‘s failure to inform him of the immigration consequences of his plea?
The
In Strickland, the Supreme Court set forth a two-pronged test to determine whether a criminal defendant is entitled to relief as a result of constitutionally deficient representation. “First, the defendant must show that counsel‘s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” 466 U.S. at 687, 104 S.Ct. 2052. To satisfy the first prong of Strickland, a defendant “must show that counsel‘s representation fell below an objective standard of reasonableness ... under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. The Court explained: “Prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable, but they are only guides.” Id. (citation omitted). To satisfy the second prong of Strickland, a 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, 104 S.Ct. 2052.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill, 474 U.S. at 58, 106 S.Ct. 366. In the guilty plea context, the prejudice prong of Strickland is established if there “is a reasonable probability that, but for counsel‘s errors, [Petitioner] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366; accord Premo v. Moore, 562 U.S. —, —, 131 S.Ct. 733, 744, 178 L.Ed.2d 649 (2011) (explaining that the prejudice inquiry “is whether [the defendant] established the reasonable
Whether Petitioner is entitled to relief by application of the Strickland test to his claim of ineffective assistance of counsel ultimately depends, in part at least, on whether he is entitled to the benefit of the Padilla decision. The State, though recognizing the import of Padilla on current and future cases,5 argues that Petitioner is not entitled to the benefit of its holding. The State reasons that the Padilla Court announced a new rule of criminal procedure concerning claims of ineffective assistance of counsel, rendering it inapplicable to cases, like Petitioner‘s, that are on collateral review of a final judgment. Petitioner counters that he is entitled to have the holding of Padilla apply to his conviction, thereby dictating the conclusion that his defense counsel, in failing to apprise him of the immigration consequences of his guilty plea, was constitutionally ineffective.
To resolve the debate and determine ultimately whether the postconviction court was legally correct in deciding that Peti-
III.
Padilla, which, as we have noted, was decided two days after the Court of Special Appeals issued its opinion in this case, goes to the core of Petitioner‘s claim of ineffective assistance of counsel. Padilla‘s conviction of transporting a large amount of marijuana was based on a guilty plea. 559 U.S. at —, 130 S.Ct. at 1477. As a result of that conviction, Padilla faced automatic deportation under federal immigration law. See
The Supreme Court issued a writ of certiorari “to decide 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 —, 130 S.Ct. at 1478. The Court answered “yes” to that question, stating: “We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.” Id. at —, 130 S.Ct. at 1478.
The Court began its analysis with the recognition that
[t]he landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deporta-
tion, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.
Id. at —, 130 S.Ct. at 1478 (citation and quotation marks omitted).
The Court traced the evolution of this country‘s immigration law from its earliest iteration in the 17th century through the 1996 amendments to the immigration statutes, see generally
[u]nder contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for 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. See
8 U.S.C. § 1229b .*
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These changes to our immigration law have dramatically raised the stakes of a noncitizen‘s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
559 U.S. at —, 130 S.Ct. at 1480 (footnotes omitted). In that same vein, the Court added:
We have long recognized that deportation is a particularly severe “penalty” but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult.
Id. at —, 130 S.Ct. at 1481 (citations omitted).
For these reasons, the Padilla Court rejected the argument that criminal defense attorneys need not warn their clients about deportation risks because deportation is a “‘collateral consequence‘” of a criminal conviction and is therefore “outside the scope of representation required by the Sixth Amendment.” Id. at —, 130 S.Ct. at 1481 (citation and internal quotation marks omitted). The Court pointed out that it has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Id. at —, 130 S.Ct. at 1481 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). And though the Court declined to address whether a distinction between collateral and direct consequences ever is appropriate in a Strickland analysis, the Court made clear that such a distinction is “ill-suited” to determining a claim relating to possible deportation consequences. Id. at —, 130 S.Ct. at 1482. The Court explained: “Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.” Id. at —, 130 S.Ct. at 1482. The Court therefore concluded “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.
Turning then, to Strickland, the Court observed that “[t]he first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.‘” Id. at —, 130 S.Ct. at 1482 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Such professional norms, the Padilla Court recognized, “as reflected in American Bar Association standards and the like[,] ... are guides to determining what is reasonable.” Id. at —, 130 S.Ct. at 1482 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052; other citations omitted). The Court observed: “The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id. at —, 130 S.Ct. at 1482 (citations omitted). The Court noted, in particular: “[A]uthorities of every stripe—including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients....” Id. at —, 130 S.Ct. at 1482 (quotation marks6 and citation omitted).
From all of the above, the Court concluded that “[t]he 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 —, 130 S.Ct. at 1483. The Court recognized, though, that “[i]mmigration law can be complex” and
[t]here will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When 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. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Id. at —, 130 S.Ct. at 1483 (footnote omitted).
The Court rejected the argument of the United States Solicitor General (who argued as amicus in support of Respondent, the State of Kentucky), that Padilla‘s trial counsel‘s performance was deficient only to the extent that he gave misadvice about the immigration consequences of a plea. The Court found “no relevant difference ‘between an act of commission and an act of omission’ in this context[,]” because “[s]ilence 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.‘” Id. at —, 130 S.Ct. at 1484 (citations omitted). The Court added that limiting the focus of an ineffectiveness claim to misadvice would give defense counsel incentive to remain silent while also “deny[ing] a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.” Id. at —, 130 S.Ct. at 1484. The Padilla Court held: “It is quintessentially the duty of counsel to provide 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 —, 130 S.Ct. at 1484 (quoting Hill, 474 U.S. at 62, 106 S.Ct. 366 (White, J., concurring)).
The Padilla Court was unable to address the “prejudice” prong of Strickland because the lower courts, having decided (wrongly, as it developed) that deportation is merely a collateral consequence of a guilty plea and is not subject to Strickland, did not address whether Petitioner was prejudiced by his trial counsel‘s misadvice. Id. at —, 130 S.Ct. at 1487. The Padilla Court therefore remanded the case for a finding on whether Padilla had been prejudiced as the result of his counsel‘s ineffective representation. Id. at —, 130 S.Ct. at 1487.
Padilla issued on March 31, 2010, long after Petitioner‘s conviction became final. The question, then, is whether the holding in Padilla applies on collateral review of Petitioner‘s conviction.
Under Maryland law,
the question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law. If a decision does not, ... no question of a “prospective only” application arises; the decision applies retroactively in the same manner as most court decisions.
State v. Daughtry, 419 Md. 35, 78, 18 A.3d 60, 86 (2011) (quoting Houghton v. County Comm‘rs of Kent County, 307 Md. 216, 220, 513 A.2d 291, 293 (1986)); see Walker v. State, 343 Md. 629, 637, 684 A.2d 429, 433 (1996). Of particular relevance to this case, we have explained that, “where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively[,]” and it is only “where a new rule ... constitutes ‘a clear break with the past ...‘” that the question of prospective only application arises. Potts v. State, 300 Md. 567, 577, 479 A.2d 1335, 1340 (1984) (quoting United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)); accord Warrick v. State, 108 Md.App. 108, 113, 671 A.2d 51, 53 (1996) (“The general rule of retroactivity vel non can be stated simply—if the subject case merely applies settled precedents to new facts, the case is given retroactive effect, for the case is viewed as not changing the law in any material way.“), cert. granted but dismissed at request of party, 342 Md. 507, 677 A.2d 583 (1996).
We conclude, for the reasons that follow, that the holding of Padilla, i.e., that the failure of defense counsel to advise his or her client of the potential immigration consequence of a guilty plea is deficient performance under Strickland, applies retroactively to all cases arising out of convic-
Since Padilla was decided, a number of reported state and federal appellate decisions have addressed whether Padilla should be applied retroactively. Although the decisions are not uniform in holding that Padilla applies retroactively, we are persuaded that those that so hold represent the better reasoned view.7
In United States v. Orocio, the Third Circuit concluded, based on Strickland and Hill, that ”Padilla followed from the clearly established principles of the guarantee of effective assistance of counsel.” 645 F.3d 630, 639 (3d Cir. 2011). The court elaborated: “[A] court‘s disposition of each individual factual scenario arising under the long-established Strickland standard is not in each instance a ‘new rule,’ but rather a new application of an ‘old rule’ in a manner dictated by precedent. Padilla is no different.” Id. Padilla, in other words, merely followed existing precedent, rather than departed from it, and thereby did not establish any new rule of prospective application only.
Likewise, in Commonwealth v. Clarke, the Massachusetts Supreme Judicial Court held that Padilla did not announce a “new rule” and therefore the Padilla holding must be applied retroactively to cases on collateral review. 460 Mass. 30, 949 N.E.2d 892, 904 (2011). Citing the excerpt from Justice Kennedy‘s concurring opinion in Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (and quoted by the Court in Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), the Clarke Court, like the Third
We therefore need look no further than Padilla itself to ascertain what has been expected of defense counsel under the Sixth Amendment, in connection with advice concerning the immigration consequences of a guilty plea, at least since the 1996 amendments to federal immigration law. Stated differently, the holding of Padilla did not “overrule[] prior law and declare[ ] a new principle of law.” Daughtry, 419 Md. at 78,
Consequently, under Maryland retroactivity jurisprudence, Padilla is retroactively applicable to convictions, like Petitioner‘s, that are based on guilty pleas that came after the effective date of the 1996 changes to the immigration laws. Because, under Padilla, Petitioner‘s trial counsel was obligated, but failed, to provide advice on the deportation consequences of Petitioner‘s plea, we hold that Petitioner‘s trial counsel‘s performance was constitutionally deficient.
Much of what we have said disposes of the remainder of the State‘s arguments for why Padilla does not apply to Petitioner‘s case. The State argues that Padilla does not apply because Padilla received misadvice and Petitioner received no advice. True, Petitioner‘s counsel did not advise him of the possible immigration consequences of the guilty plea. But, as we have detailed, the Padilla Court adamantly rejected the Solicitor General‘s attempt to draw the distinction, for purposes of the
The State also argues that we should affirm the Court of Special Appeals’ reversal of the postconviction court‘s finding of deficient performance, because the Court of Special Appeals’ analysis “is in accord with the controlling authority at the time of [Petitioner‘s] plea.” The State points out in its brief that the Court of Special Appeals, in applying the Strickland analysis,
thoroughly addressed the long-recognized distinctions between collateral and direct consequences of criminal convictions ... [and] concluded, based on “the dispositive distinction made by the caselaw,” that potential deportation is a collateral consequence which, unlike a direct consequence, is
not a matter as to which a defendant must be advised before pleading guilty.
The State, relying on language from Strickland concerning the performance prong of the analysis, notes that “a reviewing court ‘must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct[,]’ ” and “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (emphasis added by the State).
This argument, like the others the State advances, fails under the Court‘s reasoning in Padilla. The Padilla Court applied the same Strickland analysis to a set of facts materially identical to Petitioner‘s. The Padilla Court recognized that many courts, prior to Padilla, drew a distinction between direct and collateral consequences of a guilty plea and, treating deportation consequences as “collateral,” held that counsel‘s failure to inform the client about such consequences was beyond the scope of what is required under the
Furthermore, Petitioner‘s guilty plea, like Padilla‘s, post-dated the enactment of the
For all these reasons, we reject the State‘s contentions and hold that Padilla governs Petitioner‘s case.
V.
To show prejudice, Strickland requires that a defendant demonstrate “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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The Supreme Court instructed in Hill that, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 106 S.Ct. 366. See also Padilla, 559 U.S. at —, 130 S.Ct. at 1485 (instructing that, “to obtain relief on [an ineffective assistance of counsel] claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances“). This Court has interpreted the “reasonable probability” language of Strickland to mean a “substantial possibility” that the result of the trial would have been different. See Williams v. State, 326 Md. 367, 375-76, 605 A.2d 103, 107 (1992).
In Hill, the defendant entered a guilty plea and later sought federal habeas relief on the ground that his defense counsel provided erroneous information about his eligibility for parole under the sentence agreed upon as part of the plea. The Supreme Court found no prejudice for purposes of Strickland, because the defendant “did not allege in his habeas petition that, had counsel correctly informed him about his parole
Unlike in Hill, Petitioner expressly alleged that he would not have entered the guilty plea had he been advised of the deportation risk of doing so. In his affidavit to the postconviction court, Petitioner wrote:
Had I been aware of the ... immigration consequences I now face, including an order or [sic] deportation, I never would have proceeded in the manner I did, rather, I would have exercised my right to a court or jury trial and any other right or defense which would have prevented the entry of a conviction for a deportable offense.
The State did not challenge the affidavit, nor did it argue that the affidavit was insufficient, even if credited fully, to establish the prejudice required by Strickland and Hill.
We are bound to credit a postconviction court‘s first-level findings, including findings concerning the sworn testimony of a defendant concerning whether he or she would have entered into a plea if defense counsel had performed competently in connection with the plea. Yoswick, 347 Md. 228, 700 A.2d 251, provides an example. In that case, Yoswick, after pleading guilty to attempted first degree murder and kidnaping, sought postconviction relief by asserting that he received ineffective assistance of counsel because counsel erroneously advised him regarding the requirements for parole. At a postconviction hearing, the defendant testified that, had he been correctly advised regarding parole, he would not have entered the guilty plea. The postconviction court did not find the defendant credible: “Simply stated, the Court does not believe Petitioner‘s self-serving statement that he would not have pled guilty had he known the actual date for parole eligibility.” Id. at 237, 700 A.2d at 255. This Court affirmed the postconviction court, holding that the defendant had failed to satisfy Strickland‘s prejudice requirement. Deferring to the trial court‘s finding, the Yoswick Court stated: “[T]he trial court simply did not believe him and we cannot say that credibility determination was clearly erroneous.” Id. at 246, 700 A.2d at 260.
The State, seemingly ignoring that the postconviction court expressly credited Petitioner‘s averment, argues that “[t]he multiple charges that [Petitioner] was facing, the overwhelming evidence against him, and the leniency afforded [Petitioner] as a result of his negotiated plea arrangement refute his contention ... that he was prejudiced by counsel‘s representation.” By citing the “multiple charges” facing Petitioner and “leniency” offered him, the State appears to assume that Petitioner must have considered conviction of fewer charges and a relatively short period of incarceration to be his top priorities when he entered the plea.
Our conclusion in this regard is far from fanciful. We are not alone in understanding that many noncitizens might reasonably choose the possibility of avoiding deportation combined with the risk of a greater sentence over assured deportation combined with a lesser sentence. See Orocio, 645 F.3d at 645 (“For the alien defendant most concerned with remaining in the United States, especially a legal permanent resident, it is not at all unreasonable to go to trial and risk a ten-year sentence and guaranteed removal, but with the chance of acquittal and the right to remain in the United States, instead of pleading guilty to an offense that, while not an aggravated felony, carries ‘presumptively mandatory’ removal consequences.“); see also Padilla, 559 U.S. at —, 130 S.Ct. at 1480 (“deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.“) (footnote omitted).
Insofar as the State refers to the “overwhelming evidence” against Petitioner to suggest that a conviction was inevitable and therefore no prejudice existed, the State misunderstands the focus of the prejudice inquiry in cases involving plea agreements. The appropriate determination is not whether Petitioner ultimately would have been convicted following a trial, but rather whether there “is a reasonable probability that, but for counsel‘s errors, [Petitioner] would not have pleaded guilty and would have insisted on going to trial.”
For all of the reasons we have discussed, Petitioner‘s sworn statement that he would have opted to go to trial if he had known of the likelihood of deportation, which was credited by the court, established a “substantial possibility” that, had he received the advice required by Padilla, he would have opted to go to trial. Cf. Williams, 326 Md. at 382, 605 A.2d at 110 (concluding that the petitioner‘s after-the-fact-statement “that had he been told [by defense counsel] of the possible mandatory sentence, he would have accepted the plea” was enough to allow the inference that the petitioner ” ‘may well’ have opted to accept the plea agreement, [thereby creating] at least a ‘substantial possibility’ that the outcome would have been different“). We hold, based on this factual record, that Petitioner satisfied his obligation under Strickland and Hill to prove that he was prejudiced as the result of his counsel‘s deficient performance.
VI.
In conclusion, Petitioner has satisfied both prongs of the Strickland test for constitutionally ineffective assistance of counsel. Consequently, the postconviction court correctly granted Petitioner the relief of a new trial. We must reverse the Court of Special Appeals’ holding to the contrary, and remand the case to that Court with the direction to affirm the judgment of the Circuit Court for Harford County.
BATTAGLIA, MURPHY and ADKINS, JJ., dissent.
BATTAGLIA, J., dissenting, in which MURPHY, J., joins.
I agree with the majority on the application of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), to the instant case; I disagree with the majority‘s mandate vacating the guilty plea and ordering a new trial merely on a recitation by Denisyuk that
[h]ad I been aware of the aforementioned immigration consequences I now face, including an order or deportation, I never would have proceeded in the manner I did, rather, I would have exercised my right to a court or jury trial and any other right or defense which would have prevented the entry of a conviction for a deportable offense.
In essence, the result of the majority‘s decision is that a self-serving declaration suffices to vacate a guilty plea. I would prefer that the trial court be instructed with this opinion, when faced with post-conviction allegations pursuant to Padilla, as here, to conduct an evidentiary hearing, beyond the admission of an affidavit, to determine whether an alien‘s decision to reject a plea offer and proceed to trial “would have been rational under the circumstances.” U.S. at —, 130 S.Ct. at 1485, 176 L.Ed.2d at 297.
Other courts addressing post-Padilla claims have rejected similar self-serving affidavits as sufficient per se to establish prejudice. See United States v. Viera, 2011 WL 3420842, at *3, 2011 U.S. Dist. LEXIS 86290, at *8-9 (D.Kan.2011) (explaining that Viera‘s conclusory Padilla claim, even if “supported by his sworn statement, is insufficient to show that ‘a decision to reject the plea bargain would have been rational
Rather, some of the factors about which a trial court should be concerned include an individual‘s prior criminal history—in the present case, there are allusions to pending violations of probations for criminal offenses that have not been explored. The presence of other criminal offenses may have affected Denisyuk‘s alien status with respect to deportation. See People v. Bevans, 30 Misc.3d 1238(A), 926 N.Y.S.2d 345, 2011 N.Y. Slip Op. 50395(U), at *15-16, 2011 WL 923077 (N.Y. Kent County 2011) (concluding that there was “no reasonable probability that Defendant would have insisted on a trial under a totality of the circumstances” where he was already “at risk of deportation,” in part, because “he was previously convicted of a more serious criminal charge in another criminal proceeding prior to the time he pled guilty in the instant case“).
Whether an individual is documented also may be a relevant consideration. See Zapata-Banda v. United States, 2011 WL 1113586, at *11, 2011 U.S. Dist. LEXIS 36739, at *39-40 (S.D.Tex.2011) (explaining that, because Zapata-Banda had “never been a lawful permanent resident of the United States,” the “immigration consequence of Zapata‘s guilty plea is not that he lost the right to be in the United States, but instead, that he lost the right to apply to be in the United States“). There is nothing in the record to reflect Denisyuk‘s status apart from his affidavit, which states only that he “was not a United States citizen.”
Other relevant factors may include the strength of the prosecution‘s case. See Santos-Sanchez v. United States, 2011 WL 3793691, at *12, 2011 U.S. Dist. LEXIS 95442, at *39 (S.D.Tex.2011) (expressing doubt that Santos-Sanchez would have rejected the plea and gone to trial where “reality is
Whether the benefit obtained from the guilty plea was substantial also has been a frequent consideration among trial courts. See Zapata-Banda, 2011 WL 1113586, at *11, 2011 U.S. Dist. LEXIS 36739, at *39-40 (concluding, in part, that because Zapata-Banda did not lose his right to be in the United States because of the guilty plea at issue, he was not prejudiced by his counsel‘s failure to advise him of deportation consequences). Curative judicial admonishments also may be relevant considerations, although admittedly, in the present case, none occurred. See Khanali v. United States, 2011 WL 1626553, at *4, 2011 U.S. Dist. LEXIS 45751, at *14 (S.D.Ga.2011) (finding no prejudice where trial judge explicitly advised Khanali at plea hearing that “the maximum penalty could include deportation“); see also Ellington v. United States, 2010 WL 1631497, at *3, 2010 U.S. Dist. LEXIS 38943, at *9-10 (S.D.N.Y.2010) (concluding that Ellington failed to establish prejudice where, after court asked whether he recognized that his “plea of guilty to the offense outlined in the indictment” affected his “ability to remain within the United States,” Ellington answered “[y]es, sir“). Any other objective indicia that rejecting the plea and proceeding to trial would have been rational also may be the subject of an evidentiary hearing, such as the length of time Denisyuk has lived in the United States, whether Denisyuk has family in the United States, the connections Denisyuk has to his home country, and evidence that Denisyuk knew, or did not know, of the deportation consequences of a conviction. See United States v. Dass, 2011 WL 2746181, at *5-6, 2011 U.S. Dist. LEXIS 76506, at *16-17 (D.Minn.2011) (concluding that Dass established prejudice where it was shown that (1) he had family ties in Minnesota, lacked connections to his home country of Guyana, (2) he came to the United States while still an infant and spent his entire life in Canada and the United States, (3) he had at least four children of his own, and (4) his current partner had a five-year old daughter of her own in Minnesota); see also People v. Williams, 72 A.D.3d 1347, 1348, 899 N.Y.S.2d 438, 439 (N.Y.App.Div.2010) (crediting Williams‘s girlfriend‘s testimony that “she was present on at least four occasions when defense counsel stated that defendant would not be exposed to deportation proceedings due to his guilty plea“).
If a mere self-serving recitation of a non-citizen that he would have rejected the plea had he known of the potential immigration consequences is sufficient to garner a new trial, a Strickland prejudice inquiry is eviscerated. Rather, in a post-conviction setting, the prejudice prong deserves more inquiry than that given here.
I respectfully dissent.
Judge MURPHY has authorized me to state that he joins this dissenting opinion.
ADKINS, J., dissenting.
I respectfully dissent because I believe the better position under Maryland law, under federal law, and in light of prudential considerations is that Padilla v. Kentucky created a new rule, not applicable retroactively. In my view, Padilla should not apply to Petitioner, and he should not receive a new trial.
It is clear that Padilla created a new rule under the federal standard for retroactivity.1 In Teague v. Lane, the Supreme Court set forth the federal standard, holding that a rule is “new,” and thus not applicable retroactively, if “the result was not dictated by precedent existing at the time the defendant‘s
The Seventh Circuit reached the same result, holding that Padilla created a new rule because one could not say that prior cases holding differently had been “unreasonable in their reading of existing Supreme Court precedent.” Chaidez v. U.S., 655 F.3d 684, 691-92 (7th Cir.2011).2 Because Padilla created a new rule under the federal standard, the majority must rely on Maryland‘s unique standard for retroactivity, set forth in State v. Daughtry, 419 Md. 35, 77-81, 18 A.3d 60, 85-87 (2011), to hold that Padilla did not create a new rule, and thus is applicable retroactively to Petitioner.
The better position, however, is that Padilla creates a new rule under Maryland‘s standard as well as the federal standard, because the rule it overturned was more reasonable and more widely followed than the rule overturned in Daughtry. In other words, Daughtry is distinguishable because Padilla overturned stronger and better-established precedents. Unlike the rule overturned in Daughtry, which was followed in “some trial courts” and “seemingly ... [mis]construed a prior case,” 419 Md. at 80, 18 A.3d at 79, the rule overturned in Padilla was followed in “every Federal Court of Appeals,” and
Daughtry affirmed a judgment from the Court of Special Appeals holding that the defendant‘s guilty plea was involuntary because “there was no other evidence (aside from the fact of representation) tending to show that the plea was knowingly and voluntarily entered.” 419 Md. at 80, 18 A.3d at 87. On appeal before this Court, the State argued that the holding below, if affirmed, would create a new rule because it was “a significant departure from Priet,” a case3 sometimes cited as having created a presumption that guilty pleas are knowing and voluntary as long as the defendant is represented by counsel. Id. at 78-79, 18 A.3d at 86. We disagreed. Acknowledging that it “may well be that members of the bar and lower courts relied upon and employed the ... presumption in accepting or upholding guilty pleas,” we held:
“[T]hat ‘some trial courts and members of the bar seemingly have [mis]construed’ a prior case does not mean that a later decision, setting forth a proper interpretation, ‘comprise[s] a departure from the law applicable to criminal causes in Maryland.’ ” ... Because our decision today is consistent entirely with
Rule 4-242(c) , its predecessor, and attendant case law, we need not address the parties’ contentions vis á vis [retroactivity], and we declare that this opinion must be given full retrospective effect. (Citations omitted.)
Id. at 80-81, 18 A.3d at 87. Thus, the rule overturned in Daughtry was not widely accepted and was a mistaken interpretation of applicable precedent.
On the other hand, the rule overturned in Padilla was widely accepted and well reasoned. Padilla held that a criminal defense lawyer, to provide effective assistance under Strickland, “must inform her client whether his plea carries a risk of deportation.” 130 S.Ct. at 1486. This holding overturned the rule, widely followed in the lower courts, that a
Two additional considerations counsel against the retroactive application of Padilla. First, as the Supreme Court observed in Butler v. McKellar, “[T]he ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990).5 I find this consideration persuasive. To avoid implying that practically all judges and practitioners have been unreasonable in their
Second, one of the reasons Teague created the dichotomy between new rules and old rules is that states are unduly burdened when new constitutional rules are applied retroactively. As the Court observed,
In many ways the [retroactive] application of new rules ... may be more intrusive than the enjoining of criminal prosecutions, for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. Furthermore ... [s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover ... new constitutional commands.
(Citations omitted.)
I find this consideration persuasive as well. Petitioner‘s guilty plea complied with then-existing constitutional standards under Strickland. As Justice Alito noted in Padilla, “every Federal Court of Appeals to have considered the issue” agreed that deportation was a collateral consequence, and that failing to advise a defendant of it did not invalidate a guilty plea. 130 S.Ct. at 1488, 1491. Thus, granting Petitioner a new trial when his plea conformed with a well-established and reasonable constitutional rule imposes an undue burden on the Circuit Court.
For these reasons, I respectfully dissent.
Notes
Of course, this was the rule in Maryland as well. Yoswick v. State, 347 Md. 228, 240, 700 A.2d 251, 257 (1997) (holding that a guilty plea is not invalid merely because the lawyer fails to advise the defendant of collateral consequences such as deportation). Although
We have explained why counsel‘s failure to advise Petitioner of the immigration consequences of the plea was deficient performance, under Strickland and Padilla. We also note (though we do not ground our decision on this point) that Petitioner‘s counsel should also have known, when advising Petitioner about the plea, of the requirements of
[b]efore the court accepts a plea of guilty or 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 and (2) 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.
By its plain language,
Furthermore, as Petitioner points out, the minutes of the April 24, 1998, meeting of the Court of Appeals Standing Committee on Rules of Practice and Procedure reflect the intention of the drafters of
The Vice Chair expressed her disagreement with the fact that if a judge fails to advise the defendant about the consequences of a guilty plea, no remedy exists, even if that defendant suffers dire consequences. Some other states provide that if the advice is not given, the plea can be invalidated. The Chair pointed out that there are two aspects to this. One is that the defendant can get postconviction relief based on inadequate advice of counsel. The Rule says that the guilty plea cannot be attacked, but does not preclude postconviction relief. U.S. citizens may not ask for their pleas to be set aside because the judge did not give the advice about immigration consequences. If a particular defendant is unfairly prejudiced, that defendant‘s right to competent defense counsel should cover this situation.