Denisyuk v. State

422 Md. 462

30 A.3d 914

Mark DENISYUK

v.STATE of Maryland.

No. 45

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 25, 2011.

Brian L. Zavin, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Petitioner.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. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). We consider in this case whether Petitioner, Mark Denisyuk, a noncitizen ¹ who in 2006 pleaded guilty to a deportable offense, is entitled to postconviction relief based on the claim that his defense counsel was constitutionally ineffective by failing to notify him of the deportation risks of his guilty plea. The answer to the issue posed is governed to a great extent by Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the Supreme Court held that it is ineffective assistance to misadvise, or fail altogether to advise, a client that deportation ² is a likely consequence of the guilty plea. Id. at ––––, 130 S.Ct. at 1483. The central question to be decided in this case is whether Padilla applies to Petitioner's collateral challenge to his conviction, and, if so, whether he has demonstrated that he was prejudiced by counsel's failure to provide proper advice concerning immigration consequences.

For the reasons that follow, we hold 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, Pub.L. No. 104–208, 110 Stat. 3009–546 (effective April 1, 1997), and, applying Padilla to the plea at issue here, defense counsel's failure to advise Petitioner of the deportation consequence of his guilty plea was constitutionally deficient. We further hold, based on the record developed at the postconviction hearing and the court's express finding on the subject, that counsel's deficient performance prejudiced Petitioner. He therefore is entitled to the requested relief of vacation of the plea and a new trial.

I.

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.

* * *

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 and elsewhere, the intermediate appellate court reasoned that the “line that has historically been drawn between advice as to the consequences of a guilty plea that is constitutionally required and advice as to other consequences that is not constitutionally required, no matter how valuable such advice might be, is the line that separates direct consequences from collateral consequences.” Id. at 437, 991 A.2d at 1292. The Court followed decisions of federal courts of appeal in concluding that deportation is a collateral consequence of a criminal conviction and therefore does not fall within the scope of the Sixth Amendment's guarantee of effective assistance of counsel. Id. at 451–61, 991 A.2d at 1300–05. The Court of Special Appeals held: “The Sixth Amendment does not impose on a lawyer a duty to inform a client contemplating a guilty plea about collateral consequences generally or the risk of deportation specifically.” Id. at 460–61, 991 A.2d at 1305.

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:

1. In light of the Supreme Court's decision in Padilla v. Kentucky, [559] U.S. ––––, (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?

2. 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?

II.

The Sixth Amendment to the United States Constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” The Sixth Amendment right to counsel is only realized, though, if defense counsel provides “ effective assistance of counsel.” McMann, 397 U.S. at 771 n. 14, 90 S.Ct. 1441 (emphasis added).

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...