Sanmartin Prado v. State

WRIGHT, J. This appeal arises from a petition for writ of error comm nobis filed by appellant, Juan Carlos Sanmartín Prado (“San-martín Prado”), in the Circuit Court for Baltimore County on October 21, 2013. The petition asserted that Sanmartín Prado received ineffective assistance of counsel during his January 6, 2011 trial. Sanmartín Prado was charged with second-degree child abuse. On January 28, 2014, a comm nobis hearing was held, and on June 12, 2014, the circuit court denied the petition.

Sanmartín Prado filed this timely appeal. On appeal, Sanmartín Prado asks this Court to determine whether the circuit court erred in denying the comm nobis petition by finding that he waived his right to a comm nobis complaint, and whether he received ineffective assistance of counsel. For the reasons explained below, we reverse and remand the case to the circuit court. ²⁰⁴ FACTS On January 6, 2011, Sanmartín Prado, an Ecuadorian citizen and a legal permanent resident of the United States, pled not guilty on an agreed statement of facts to a charge of second-degree child abuse. Sanmartín Prado was found guilty and sentenced to five years in prison, with all but two years suspended, and a two-year probation period upon his release.

He did not appeal the verdict. Sanmartín Prado has now been subjected to deportation as a result of his conviction for the second-degree child abuse conviction. 1 He alleges that he was not informed by his trial counsel of the immigration consequences of his conviction. Sanmartín Prado claims that he first learned he would be deported when officers from U.S. Immigration and Customs Enforcement (“I.C.E.”) came to arrest him six months following the end of his probationary period. During the circuit court proceeding for the second-degree child abuse charge, 2 Sanmartín Prado’s trial attorney asked ²⁰⁵ whether it was correct that the two “have had discussions with respect to [his] immigration status,” to which Sanmartín Prado responded, ‘Yes, sir.” During the coram nobis hearing, the trial attorney testified that the “discussions” took place on December 30, 2010, while Sanmartín Prado was in the “detention center.” Sanmartín Prado’s trial attorney further testified that he “explained to [Sanmartín Prado] that there could and probably would be immigration consequences as a result of the plea ... that it was a deportable or possibly deportable offense.” Sanmartín Prado alleged in his petition that this advisement was insufficient as to the potential consequence of deportation resulting from his conviction and amounts to error reviewable upon petition of writ of error coram nobis.

In a written opinion, the circuit court found as a fact that trial counsel met with Sanmartín Prado “at the Baltimore County Detention Center before trial and explained the immigration consequences of a guilty verdict, including that the charge was a ‘deportable offense’ and Petitioner ‘could be deported ... if the government chose to initiate deportation proceedings,’ and it was ‘possible’ that Petitioner ‘would be deported.’ ” The court went on to state that “[t]he Petitioner testified that his counsel never told him he ‘would be deported,’ but acknowledged that he did have a conversation with trial counsel regarding his immigration status.” The circuit court went on to rule that “[u]pon consideration of the evidence to this Court as well as the record of the plea hearing, the Court finds that the Petitioner has not rebutted the presumption that he ‘intelligently and knowingly’ failed to raise the allegation on appeal and Petitioner has made no showing that special circumstances exist for his failure to make the allegation of error on appeal.” This timely appeal followed. ²⁰⁶ DISCUSSION The common law writ of error coram nobis was expanded in Maryland by Skok v. State, 361 Md. 52, 78 , 760 A.2d 647 (2000), to serve as “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.” A “presumption of regularity attaches to the criminal case,” and therefore, the coram nobis petitioner bears the burden of proof. Id. at 78 , 760 A 2d 647. This Court will not “disturb the factual findings of the post-conviction court unless they are clearly erroneous.” Arrington v. State, 411 Md. 524, 551 , 983 A.2d 1071 (2009) (citation omitted). While reviewing for clear error, we will make an “independent determination of relevant law and its application to the facts.” Id.

(citing State v. Adams, 406 Md. 240, 255 , 958 A.2d 295 (2008)). I. Waiver is no longer an appropriate basis for denying a coram nobis petition. Md.Code (2002, 2012 Repl.Vol.), § 8-401 of the Criminal Procedure Article (“CP”) states: “The failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” 3 The circuit court did not cite nor rely on this statute in ruling that Sanmartin Prado waived his coram nobis claim. 4 A year after the circuit court’s denial of Sanmartin Prado’s petition, the Court of Appeals decided State v. Smith, 443 Md. 572 , 117 A.3d 1093 (2015). In Smith , the Court of Appeals applied CP ²⁰⁷ § 8-401 to similar facts and held that the petitioner did not waive her coram nobis claim by failing to appeal her conviction or file a petition for post-conviction relief.

Id. at 577, 117 A.3d 1093 . Smith explicitly contradicts the circuit court’s waiver ruling in Sanmartín Prado’s case. The Court of Appeals in Smith reasoned that the petitioner was entitled to the benefit of CP § 8-401 because “the statute is both procedural and remedial and does not impair any ‘vested right’ of the State.” Id. at 588, 117 A.3d 1093 . The Court further noted that petitioner Smith satisfies the standard for coram nobis and is entitled to pursue her claim because she: [SJtands convicted of a deportable offense; is not incarcerated; is not on parole or probation; and, “suddenly faced with a significant collateral consequence of [ ] her conviction, ... can legitimately challenge the conviction on constitutional or fundamental grounds.” Id. at 609, 117 A.3d 1093 (citation omitted).

The Smith Court states that upholding a coram nobis denial on waiver grounds would “undermine completely the procedural benefit the General Assembly bestowed upon the convicted defendants by its enactment of CP § 8-401.” Id. Accordingly, we disagree with the circuit court on this procedural issue, reverse, and move on to the merits of Sanmartín Prado’s appeal.

II

The circuit court must determine whether Sanmar-tín Prado met his burden of proof as to his ineffective assistance of counsel claim. As noted, supra, Sanmartín Prado bears the burden of proof on his coram nobis complaint. Skok, supra, 361 Md. at 78 , 760 A.2d 647 . Sanmartín Prado alleges that he received ineffective assistance of counsel because his trial attorney never advised him of the risk of deportation in the event he was found guilty after proceeding with his trial on an agreed statement of facts.

The standard for reviewing ineffective assistance of counsel is set out in Strickland v. Washington, ²⁰⁸ 466 U.S. 668, 688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), in the form of a two-pronged analysis: (1) counsel’s representation must fall “below an objective standard of reasonableness,” and (2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Sanmartin Prado’s ineffective assistance of counsel claim is grounded in Padilla v. Kentucky, 559 U.S. 356 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010). Padilla, a native of Honduras, had been a lawful permanent resident of the United States for more than forty years and had served in the United States Armed Forces during the Vietnam War. Padilla faced deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky. The Supreme Court held in Padilla that, under the Sixth Amendment, an attorney representing a non-citizen, in order to provide constitutionally effective representation, must inform the noncitizen client of the risk of deportation that follows a criminal conviction. 5 Id. at 371 , 130 S.Ct. 1473 .

After examining the critical changes in immigration law over recent decades, 6 the Padilla Court noted that “if a ²⁰⁹ noncitizen has committed a removable offense after the 1996 effective decreed date of these amendments, his removal is practically inevitable.” Padilla, 559 U.S. at 363-64 , 130 S.Ct. 1473 . Subsequently, professional norms of the legal profession changed to include “the deportation consequence” of a criminal conviction. 7 Id. at 372 , 130 S.Ct. 1473 . Because the first prong of the Strickland analysis instructs that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 then a noncitizen criminal defendant’s Sixth Amendment right to effective assistance of counsel requires advice on the risk of deportation. Id. at 363-64, 130 S.Ct. 1473 ; see also, e.g., Denisyuk v. State, 422 Md. 462 , 30 A.3d 914 (2011) (applying Padilla in Maryland).

Courts have granted writs of error coram nobis and vacated a petitioner’s conviction based on ineffective assistance of counsel claims where the attorney misadvised or failed to advise petitioner on the potential immigration consequences of his guilty plea. In United States v. Akinsade, 686 F.3d 248, 256 (4th Cir.2012), the Fourth Circuit found that petitioner Akinsade “suffered a fundamental error necessitating coram nobis relief.” Akinsade had asked his attorney on multiple occasions “about the potential immigration consequences of a guilty plea” and each time “his attorney misadvised him that he could not be deported based on [his] offense,” giving him advice “contrary to the law at that time.” Id. at 250 . In Denisyuk , the Court of Appeals determined that counsel for petitioner Denisyuk, a 31-year old Latvian citizen who immigrated to the United States at the age of fourteen, performed deficiently by failing to advise Denisyuk of the deportation consequences of his guilty plea. 422 Md. at 485 , 30 A.3d 914 ; ²¹⁰ see also United States v. Kayode, 777 F.3d 719, 723 (5th Cir.2014) (explaining that defense counsel provided deficient assistance by failing to inform defendant of deportation risk associated with guilty plea); United States v. Rodriguez-Vega, 797 F.3d 781 (9th Cir.2015) (reasoning that “counsel’s statements made after [petitioner] 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”). The Padilla Court emphasizes that it is now “quintessentially the duty of counsel to provide [a] client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’ ” Padilla, 559 U.S. at 363-64 , 130 S.Ct. 1473 (quoting Hill v. Lockhart, 474 U.S. 52, 62 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985)).

Advising a client about immigration consequences requires informing him that a conviction renders him “deportable.” This is sufficient to explain that a conviction results in action by I.C.E. that would place the individual into immigration proceedings. Statements that qualify “deportable,” such as “possibly deportable” or “may be deportable,” are inadequate advice