Mbemba v. State

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BELOR MBEMBA v. STATE OF MARYLAND

No. 1091-2020

Court of Special Appeals of Maryland

February 16, 2022

Circuit Court for Montgomery County Case No. 116566C

Zic Ripken, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

OPINION^[*]

Wright, J.

In 2011, Belor Mbemba, appellant, a citizen of the Democratic Republic of Congo, pleaded guilty, in the Circuit Court for Montgomery County, to sexual offense in the second degree and was sentenced to 18 months' home detention. Then, in 2018, the United States Department of Immigration and Customs Enforcement ("ICE") initiated removal proceedings against appellant, on the basis of his 2011 Maryland conviction.

The following year, appellant filed a petition for writ of error coram nobis in the circuit court, seeking to vacate his 2011 conviction and thereby stave off removal. In that petition appellant claimed that he had received ineffective assistance of counsel, in violation of the Sixth Amendment, on the ground that he had not been advised properly of the immigration consequences of his guilty plea. After a hearing, the circuit court found that appellant failed to prove that his counsel had performed deficiently and denied his petition, prompting this appeal. For the reasons that follow, we affirm.

BACKGROUND

The Crime and the Original Proceedings

On a Saturday in August 2010, the victim, D., attended a birthday party for her friend C. at appellant's residence in Silver Spring, Maryland. During that party, D. drank to excess and passed out. She awoke to find that she was partially undressed and that appellant was performing cunnilingus on her. She passed out again and awoke to discover that he was attempting to rape her. D. subsequently was taken to a local hospital, where a sexual assault forensic examination was performed. That examination indicated that D. had suffered vaginal trauma consistent with forced sex. (Subsequently, through forensic testing, appellant's DNA would be detected in the rape kit that had been prepared at the hospital.^[1])

The following day, D. reported the incident to Montgomery County Police officers. The following week, a statement of charges was filed, and, several weeks later, a superseding indictment was returned, charging appellant with rape in the second degree and sexual offense in the second degree. The matter was scheduled for a jury trial in the Circuit Court for Montgomery County.

Over a period of several months prior to the scheduled trial date, the prosecutor and appellant's trial counsel negotiated a plea agreement, whereby appellant would plead guilty to second-degree sexual offense, and he would be sentenced to 18 months' home detention, considerably below the guidelines range of four-to-nine years (and, for that matter, the 20-year statutory maximum). On the scheduled trial date, the prosecutor and trial counsel submitted the plea agreement to the court, which accepted it and then conducted a plea hearing instead of a trial.

At the time of the plea hearing, appellant was a 30-year-old college graduate, holding a bachelor's degree in finance and international business. During the plea colloquy, appellant acknowledged that he had discussed the charges and any possible defenses with trial counsel. Trial counsel explained to appellant the trial and appellate rights he was foregoing, and he acknowledged that he understood. Trial counsel advised appellant of the elements of second-degree sexual offense, and appellant confirmed that he understood them. Appellant further was advised that, as a consequence of his plea, he would be required to register as a sex offender. Regarding the immigration consequences of the plea, trial counsel asked appellant whether he understood that his guilty plea "may have some collateral consequences as it relates to [his] immigration status," and appellant replied that he did.

Upon the conclusion of the open-court examination of appellant, the circuit court found that his guilty plea was made knowingly and voluntarily. After hearing the State's factual proffer, the court found appellant guilty of second-degree sexual offense, and it scheduled a sentencing hearing two months later.

When the court reconvened for sentencing, appellant moved to withdraw his guilty plea. The following colloquy occurred:

[TRIAL COUNSEL]: Of course it was a favorable disposition that we walked [sic] out in in light of the charge.

THE COURT: Yes, are there immigration issues here?

[TRIAL COUNSEL]: There are which is why ultimately [the prosecutor] allowed us to do home detention as opposed to PRC^[2] because the immigration issues precluded that and I'm quite sure that we addressed that at the time of the plea.

Court and counsel then discussed the victim's status:

[PROSECUTOR]: I think one of the issues that the defendant has is that he's never seen the victim because the victim has never - THE COURT: Well she doesn't have to be here.

[PROSECUTOR]: I understand.

[TRIAL COUNSEL]: I've gone through that with him.

[TRIAL COUNSEL]: For what it's worth and I think just piggybacking on what [the prosecutor] said, he doesn't believe that the victim is either in the country, prepared to testify . . . .

The court thereafter examined appellant about the reason he wanted to withdraw his plea. After reminding appellant that, at the plea hearing, he had pleaded guilty freely and voluntarily, appellant replied:

Well, I just had some concern because at first when my lawyer came with the plea, I wanted to go to trial the first time he ever asked me about you know the deal that the prosecution gave me. That's when I wanted to go to try [sic] and eventually they went back and forth and I got to say he really work hard with the prosecution to get the deal that they gave me.

And but then, I just had some concern as far as why eventually they didn't want me to go to trial and there was a concern that technically I had addressed a few times with my lawyer but I would say his response was really, really vague and today again, even yesterday, today I kept asking questions especially as far as the witness not coming to all the proceeding for about a year now. I've been coming --

After the court explained that the victim was not required to attend, appellant replied:

Yes, I know she's not required to, but I've been coming to your Court for about a year right now and I see few sex cases in a courtroom or even (unintelligible) and most of the time I would see the victim, you know coming here because you even said yourself in one of the case one day that usually when the victim is -- one person has been victimized they're looking for justice or you know revenge.

I remember I was sitting there, there was a case that was here. So, I put the same situation in my case where the victim was claiming that eventually that you know I did rape her, or sexually assaulted her or committed a sexual offense. I just thought that was kind of weird that if she was will be looking for justice or you know make sure that you know the she get revenge for what I did to her, even if she wouldn't come for a year, I kind of feel that should have been at least when I plead guilty or for my sentencing and I know she's not required to be here unless I'm sitting over there at trial and she's produced as a witness.

So, those are concerns that I addressed with my lawyer but again, like I said the answer was really, really vague and that's why you know I was like well, let me take my chance at trial because if she really wants me to go to jail then for what I did to her, she may have to show.

The court then explained why D. was reluctant to appear-that, in her victim impact statement, D. stated that she had been traumatized by the attack, that she felt "unimaginable pain," that she felt as if her "world [was] falling apart," and that she was unsure if she would "ever be the same" again. After warning appellant that if he withdrew his plea and went to trial, D. would appear and testify against him, the court then declared that whether to permit appellant to withdraw his plea ultimately was within its discretion, ^[3] and it concluded with a warning that, should the case go to trial, "all deals are off." The court, at trial counsel's request, took a brief recess, and when the hearing resumed, no one mentioned the motion to withdraw.^[4] Instead, the court, with everyone's agreement, imposed a sentence of 18 months' home detention, and the State entered nolle prosequi to the remaining count of the indictment.

The Coram Nobis Proceedings

Following the initiation of removal proceedings against appellant, in 2019, he filed a petition for writ of error coram nobis in the circuit court, contending that trial counsel in 2011 had rendered ineffective assistance in failing to advise him that, by pleading guilty to second-degree sexual offense, he would become subject to removal. The following year, two virtual hearings were held on the petition.^[5] Two witnesses testified: trial counsel testified for the State, and appellant testified on his own behalf.

Trial counsel testified that he had a "somewhat vivid" recollection^[6] of the case "because of the bailable disposition, and that we were able to ultimately avoid incarceration, which was what [appellant] wanted to do all along, so that he wouldn't get caught up in ICE proceedings, and deportation, and removal proceedings."^[7] Trial counsel further averred that "very few of [his] clients have been able to get 18 months home detention after a, you know, second degree rape with DNA evidence, but that's how it ended."

According to trial counsel, appellant had, from the outset, made it plain that, at all costs, he wanted to avoid any kind of incarceration, "even if it was pre-trial, because of the fear that...