Duncan v. State

Thieme, J. This appeal arises from the denial of a petition for a writ of error coram nobis filed in the Circuit Court for Montgomery County by appellant, Howard Duncan, in which he claimed that his right to effective assistance of counsel was denied at a violation of probation (VOP) hearing. Appellant presents us with the following question: Did the court err in denying appellant's petition for writ of error coram nobis? For the reasons that follow, we answer that question in the negative and affirm the judgment of the circuit court. BACKGROUND Guilty Plea.

On October 22, 2008, pursuant to a binding agreement, appellant pleaded guilty, in the Circuit Court for Montgomery County, to two counts of robbery with a dangerous weapon. 1 Under the plea agreement, the court bound itself to impose an overall sentence not exceeding twenty years' imprisonment. Additionally, the court bound itself to impose a sentence of executed incarceration not to exceed eighteen months. On October 31, 2008, consistent with the plea agreement, the court imposed a 10-year term of imprisonment, with all but 18 months suspended, for one robbery conviction, and a concurrent 364-day term of imprisonment for the other robbery conviction. The court also imposed two years of supervised probation.

Violation of Probation. On August 11, 2009, appellant was released from incarceration and began his probation. On November 23, 2010, appellant was found to have been in violation of the terms of his probation after he admitted that he been convicted of a number of other crimes that occurred while he was serving his probation, including, theft, possession of a firearm by a minor, and making a false statement to police. Thereafter, the court directed the execution of six years of the eight and one-half year term of imprisonment it had previously suspended.

Petition for a Writ of Error Coram Nobis. In 2016, appellant, relying on Padilla v. Kentucky , 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010) 2 and its progeny, filed a petition for a writ of error coram nobis contending that he was deprived of his right to effective assistance of counsel during his violation of probation proceeding when his counsel (1) failed to inform him of the immigration consequences of admitting that he had violated his probation, and (2) failed to present mitigation evidence to the court related to the immigration consequences of appellant's violation of his probation. Appellant claimed that, had he known of the immigration consequences of admitting he was in violation of his probation, he would not have admitted violating his probation. 3 In addition, he claimed that, had the trial court been aware of the immigration consequences of the execution of the previously suspended sentence, there was a significant possibility that the VOP court might have chosen to sentence appellant to a lesser period of incarceration which would have "preserved his eligibility for immigration relief[.]" According to appellant, if the VOP court had ordered the execution of less than five years of the previously suspended sentence, that would have made appellant's adverse immigration consequences less severe, and, if the VOP court had ordered the execution of less than one year of the previously suspended sentence, that would have potentially eliminated any adverse immigration consequences. Appellant's argument is premised on certain portions of federal immigration law which reveal that the duration of appellant's sentence(s) for robbery was relevant to, if not determinative of, appellant's removability from this country.

The relevant portions of the Immigration and Nationality Act (INA) provide that the Attorney General of the United States has the power to remove an alien from the United States who has been convicted of an "aggravated felony." 8 U.S.C. § 1227 (a)(2)(A)(iii) ; 8 U.S.C. § 1231 . The term "aggravated felony" is defined 4 to include "a crime of violence ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101 (a)(43)(F). A "crime of violence" is defined by 18 U.S.C § 16 as "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 "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 5 The phrase "term of imprisonment" "is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." 8 U.S.C. § 1101 (a)(48)(B). In addition, under 8 U.S.C. § 1231 (b)(3)(A), if the Attorney General determines that the alien's "life or freedom would be threatened [by being deported to] that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion," then the Attorney General may withhold deportation.

However, the Attorney General lacks the authority to withhold deportation if the alien is convicted of a "particularly serious crime." A "particularly serious crime" is defined as an "aggravated felony" for which an alien has a term of imprisonment of at least 5 years. 8 U.S.C. § 1231 (b)(3)(B)(iv). Thus, an alien who is convicted of robbery and receives a sentence in excess of one year's imprisonment, like appellant, is subject to removal from this country regardless of how much of that sentence is suspended. Moreover, if an alien is sentenced to more than five years' imprisonment for robbery (regardless of how much of that sentence is suspended), like appellant, then the Attorney General lacks the authority to withhold deportation under 8 U.S.C. § 1231 (b)(3)(A). Appellant argued that, based on the foregoing, the VOP court had two options at its disposal which could have ameliorated appellant's negative immigration consequences.

The VOP court could have either sentenced appellant to less than one year's imprisonment, which would have had the effect of removing the "aggravated felony" status of appellant's robbery conviction, or sentenced appellant to less than five years' imprisonment, which would have had the effect of removing the "particularly serious crime" status of appellant's robbery conviction, which would have, in turn permitted the Attorney General to withhold deportation. Appellant claims that his attorney's failure to address these immigration related concerns before, or during, the VOP hearing amounted to a deprivation of his right to effective assistance of counsel. According to Strickland v. Washington , 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in order for a defendant to prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) that his counsel made a serious attorney error, and (2) that the error caused prejudice. Id. at 694 , 104 S.Ct. 2052 .

The Hearing on the Petition for a Writ of Error Coram Nobis. On December 8, 2016, the court held a hearing on appellant's petition. 6 During that hearing, the court said that, with respect to appellant's ineffective assistance of counsel claims, "the only conceivable prejudice is[,] had arguments been presented to me about the impact of a sentence of over five years as opposed to under five years, would that have affected the sentence that I would have imposed[.]" The court then said that "there is ... at least a significant possibility that I might have been swayed" to impose a sentence under five years. The court also said that it would not have considered a sentence of under one year for the violation of probation. The court then reserved on the issue of whether, under the circumstances of this case, counsel was required to inform appellant and/or the court of the immigration consequences of the sentencing on the VOP, and concomitantly, whether VOP counsel made a serious attorney error in failing to advise appellant and/or the court of such consequences.

The Order Denying the Petition for a Writ of Error Coram Nobis. On January 25, 2017, after receiving supplemental briefing from the parties, the court issued an Opinion and Order denying appellant's petition. The court focused its analysis on whether the original ten-year sentence with all but 18 months suspended, or the six-year VOP sentence, was the operative sentence for immigration consequence purposes. The court found that the federal government, when considering appellant's removability, would consider appellant as having received a ten-year sentence because that was the sentence imposed in 2008.

The court ruled, in pertinent part, that: The [c]ourt shall focus on the question of whether the 6 year sentence imposed for the violation [of probation] is the operative sentence for purposes of the INS because the resolution of that issue is dispositive of [appellant's] request. Citing to In re: Song , 23 I. & N. Dec., 173 (2001) and In re: Cota-Vargas , 23 I. & N. Dec., 849 (2005), [appellant] argues that the sentence of 6 years imposed for the violation of probation is the controlling sentence for immigration purposes. The original sentence imposed is a nullity for immigration purposes. As the State points out in their Reply, neither of these cases support that proposition.

In both cases, the original sentences were struck on reconsideration and new sentences were imposed nunc pro tunc . Under those circumstances, the INS considered the new sentences only and treated the original sentences as a nullity. What occurred here is entirely different. Here the [c]ourt originally imposed a sentence of 10 years, suspend all but 18 months, and placed [appellant] on two years of supervised probation. [Appellant] after serving 18 months was free in the community on probation.

Thereafter, the [c]ourt found he violated the probation and of the remaining 8½ years backup time that he faced, imposed an additional 6 years for [appellant] to serve on the original sentence. Under these circumstances, the [c]ourt finds that INS would not consider the original sentence of 10 years a nullity. Instead they would view the [appellant] as having received a sentence of 10 years, 7½ of which he ultimately had to serve. For that reason, there was no adverse consequence for immigration purposes to be suffered as a result of the admission to the violation.

The adverse consequence had already been suffered as a result of the original 10 year sentence. Therefore, [VOP counsel] was not ineffective in failing to advise [appellant] of any adverse immigration consequences as a result of admitting the violation. For the same reason, the [c]ourt finds that [VOP counsel] was not ineffective for failing to argue to the [c]ourt that if the [c]ourt imposed a sentence of less than 5 years on the violation, [appellant] could argue that he should not be deported. Such an argument if made, would be an incorrect statement of the law.

Appellant's Contentions on Appeal. On appeal, appellant claims that, when the coram nobis court wrote in its opinion and order, "[t]herefore, [VOP counsel] was not ineffective in failing to advise [appellant] of any adverse immigration consequences as a result of admitting the violation," the coram nobis court "found as a matter of fact that [a]ppellant's attorney at the probation revocation hearing did not discuss the immigration consequences of [a]ppellant's plea." That failure to so advise, according to appellant, amounted to a serious attorney error under the teachings of Padilla , supra , and its progeny. According to appellant, because the coram nobis court found, as a fact, that counsel did not discuss the immigration consequences with appellant, which was a serious attorney error, and because the court had already announced its finding of prejudice 7 during the hearing on the coram nobis petition, the court had effectively found both prongs of the Strickland , supra , test were satisfied, and therefore it erred in not granting relief. In appellant's view, the coram nobis court wrongly believed that appellant also had to show that any "lesser sentence [imposed by the VOP court] would have affected his deportation status," which appellant did not do.

In the alternative, appellant argues that the coram nobis court was legally incorrect in finding that the operative sentence for immigration purposes was the original sentence because, according to appellant, under federal law the determinative sentence is the VOP sentence. Citing federal cases, including Enwonwu v. Gonzales, 438 F.3d 22 , 35 (1st Cir. 2006), and United States v. Tejeda-Perez , 199 F.3d 981 , 982-83 (8th Cir. 1999), appellant acknowledges that the suspended portion of a period of incarceration is included in the calculation of the length of a sentence for immigration purposes. Citing several cases, including United States v. Huerta-Moran , 352 F.3d 766 (2d. Cir. 2003), United State v. Compres-Paulino , 393 F.3d 116 (2d Cir. 2004), United States v. Hidalgo-Macias , 300 F.3d 281 (2d.

Cir. 2002), United States v. Woods , 127 F.3d 990 , 992 (11 th Cir. 1997), and United States v. Compian-Torres , 320 F.3d 514 , 516-17 (5th Cir. 2003), appellant also acknowledges that a conviction for which the sentence originally would not have adverse immigration consequences can, nonetheless, become a conviction with adverse immigration consequences upon a finding of a violation of probation, because "any punishment assessed for a violation of probation is actually imposed for the underlying conviction." Huerta-Moran , 352 F.3d at 770 . Appellant points out that, under 18 U.S.C. § 3565 (a)(2), upon finding that a defendant violated the conditions of his probation the court may "revoke the sentence of probation and resentence the defendant under subchapter A." (emphasis added by appellant). Citing Coley v. State , 74 Md. App. 151 , 156, 536 A.2d 1166 (1988), McDonald v. State , 314 Md. 271 , 285, 550 A.2d 696 (1988), Brown v. State , 62 Md. App. 74 , 77, 488 A.2d 502 , cert. denied , 303 Md. 42 , 491 A.2d 1197 (1985), Pitts v. State , 155 Md. App. 346 , 843 A.2d 212 (2004), and Sellman v. State , 47 Md. App. 510 , 512-13, 423 A.2d 974 (1981), appellant claims that Maryland law on sentencing after a finding of a violation of probation is similar to how the federal government treats probation revocation. According to appellant, those preceding Maryland cases all contain language supporting the proposition that, upon a finding of a violation of probation, a defendant's sentence is "imposed" and/or "re-imposed" and/or a "resentencing" occurs.

Appellant points to federal authority suggesting that a conviction for which the sentence originally had adverse immigration consequences can, nonetheless, become a conviction without adverse immigration consequences upon a downward modification of sentence. See Sandoval v. I.N.S. , 240 F.3d 577 (7 th Cir. 2001), In re Min Song , 23 I.&N. Dec. 173 (B.I.A. 2001), Matter of Martin , 18 I. & N. Dec. 226 (B.I.A. 1982), In re Oscar Cota-Vargas , 23 I. &. N. Dec. 849 (B.I.A. 2005), United States v. Landeros-Arreola , 260 F.3d 407 (5th Cir. 2001). Thus, appellant claims that, because a VOP sentencing is a resentencing under Maryland law, and because immigration authorities, when evaluating a defendant's sentence for immigration purposes, will look to the new and reduced sentence after a resentencing, that, had appellant received a sentence under five years upon violating his probation, his immigration consequences would have been less severe.

Therefore, according to appellant, had counsel for appellant argued in mitigation for imposition of a sentence of under five years, or under one year, the court could have "re-imposed" a sentence of under five years' incarceration which would have ameliorated appellant's immigration consequences. The State's Contentions on Appeal. As an initial matter, the State does not accept the appellant's assertion that "the [coram nobis] court found as a matter of fact that [a]ppellant's attorney at the probation revocation hearing did not discuss the immigration consequences of [a]ppellant's plea." The State argues that, when the coram nobis court said "[t]herefore, [appellant's counsel at the violation of probation hearing] was not ineffective in failing to advise [appellant] of any adverse immigration consequences as a result of admitting the violation," the court was merely assuming, for argument's sake, that counsel did not advise appellant about the potential adverse immigration consequences associated with violating probation. 8 Moreover, the State claims that, appellant's advice, or lack thereof, was immaterial to the coram nobis court's legal conclusion that appellant's original ten-year sentence was the determinative sentence for immigration purposes. The State agrees with the coram nobis court that the operative sentence for ascertaining appellant's immigration consequences flowing from his criminal convictions was the original ten-year sentence, with all but 18 months suspended, imposed on October 31, 2008, after appellant pleaded guilty, and before he violated the terms of his probation.

As support for this position, the State directs our attention to 8 U.S.C. § 1101 which provides, inter alia , and as relevant here, the definition of an "aggravated felony" and a "term of imprisonment." As noted above, the term "aggravated felony" is defined to include "a crime of violence ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101 (a)(43)(F). Moreover, according to 8 U.S.C. § 1101 (a)(48)(B), the phrase "term of imprisonment ...is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." The State cites several cases as support for its positions that, "for purposes of that designation as an aggravated felon, it is immaterial whether the sentence is suspended," and that a sentence imposed upon revocation of probation is part of the "actual sentence imposed" for the original offense. See Dawkins v. Holder , 762 F.3d 247 , 249-50 (2d Cir. 2014) ; United States v. Echavarria-Escobar , 270 F.3d 1265 , 1270 (9th Cir. 2001) ; United States v. Compian-Torres , 320 F.3d 514 (5th Cir. 2003) ; United States v. Yanez-Huerta , 207 F.3d 746 (5th Cir. 2000) ; United States v. Tejada-Perez , 199 F.3d 981 , 982 (8th Cir. 1999) ; United States v. Cordoza-Estrada , 385 F.3d 56 (1st Cir. 2004) ; United States v. Graham , 169 F.3d 787 (3rd Cir. 1999). The State contends that Maryland's procedure upon revocation of probation mirrors the federal procedure of treating the sentence upon revocation of probation as part of the sentence imposed for the original offense.

The State refers us to Gibson v. State , 328 Md. 687 , 616 A.2d 877 (1992) for the proposition that revocation of probation "is not a second punishment added upon the original sentence; it represents, rather, the withdrawal of favorable treatment previously accorded the defendant." Id. at 690 , 616 A.2d 877 . The State asserts that adopting appellant's argument would have the perverse result of rewarding a defendant for violating his probation. Next, the State distinguishes the cases cited by appellant that suggest that a conviction for which the sentence originally had adverse immigration consequences can, nonetheless, become a conviction without adverse immigration consequences upon a downward modification of sentence. The State claims that none of the cases relied upon by appellant involved a revocation of probation. 9 The State points out that In re Min Song , 23 I. & N. Dec. 173 (B.I.A. 2001) and In re Oscar Cota-Vargas , 23 I. & N. Dec. 849 (B.I.A. 2005) both dealt with nunc pro tunc orders entered for the express purpose of nullifying the original sentence in order to avoid adverse immigration consequences.

According to the State, in Matter of Martin , 18 I. & N. Dec. 226 (B.I.A. 1982), the State court corrected an illegal sentence, and the immigration court found that the "new, reduced sentence stands as the only valid and lawful sentence imposed upon the defendant." Id. at 227 . The State distinguished Sandoval v. I.N.S. , 240 F.3d 577 (7th Cir. 2001) on the basis that that case involved a conviction that was vacated. In any event, the State argues that the rationale supporting the aforementioned cases cited by appellant has been called into question by the federal courts. Specifically the State directs us to Sharma v. Taylor , 50 F.Supp.3d 749 (E.D. Va. 2014) where that court noted: It is worth noting that Cota-Vargas and Song [ 10 ] are BIA cases which held that it was unnecessary to inquire into the reasons the state court issued the relevant nunc pro tunc relief.

Yet, there is contrary caselaw on this point. Courts of appeal are nearly unanimous in holding that the availability of relief from adverse immigration actions such as removal depends on the reasons for a