State v. DENISYUK

CHARLES E. MOYLAN, JR., Judge (Retired, Specially Assigned). In a nutshell, the appellee, Mark Denisyuk, entered a plea of guilty but, in the cold light of dawn, was unhappy about having done so. In such a fell clutch of circumstance, two possibilities have potential for turning back the clock. One is to establish that the plea was involuntary.

The other, distinct albeit closely intertwined, is to establish that the lawyerly advice, or lack thereof, that precipitated the plea was constitutionally ineffective. The appellee had a go at both possibilities and, to the State’s chagrin, prevailed on one of them. Procedural Background The appellee is a native and a citizen of Latvia. On November 2, 2006, he entered a guilty plea in the Circuit Court for Harford County to the charge of second-degree assault.

He was found guilty and received a sentence of ten years imprisonment with all but two years suspended followed by three years of supervised probation “upon release.” A year later, on October 15, 2007, however, the appellee petitioned for post-conviction relief. He claimed that prior to entering the plea of guilty, he had not been advised that, as a possible collateral consequence of a conviction, he might be subject to deportation from the United States. He contended ⁴¹⁷ that as a result of that failure to advise, 1) his guilty plea was involuntary and 2) he had been denied his Sixth Amendment right to the effective assistance of counsel. A hearing was held on that petition on May 16, 2008.

The hearing judge, in a Memorandum Opinion and Order filed on August 29, 2008, ruled against the appellee with respect to the voluntariness of the guilty plea. The State, as appellant, has not challenged that ruling. We accept, as established fact, that the appellee’s plea of guilty was voluntary. Any discussion of the judge’s ruling on that issue is unnecessary, except to the extent that it may have some bearing on the related question of effective assistance of counsel.

On the companion argument, however, the hearing judge agreed with the appellee that, under the Sixth Amendment, the appellee had been denied the effective assistance of counsel. The hearing judge ordered a new trial, and the State took this timely appeal. A Sixth Amendment Claim As our analysis begins, it is important to make sure that we are in the right doctrinal ballpark. In his post-conviction petition and in appellate brief before us, the appellee has raised, expressly and exclusively, a claim of ineffective assistance of counsel pursuant to the Sixth Amendment of the United States Constitution, which provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.

In pursuing his argument, moreover, the appellee relies totally on the two Supreme Court cases of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). The only Maryland decision even mentioned by the appellee is Yoswick v. State, 347 Md. 228 , 700 A.2d 251 (1997), an opinion which, in turn, analyzes the claim before it exclusively in terms of the Sixth Amendment right to ⁴¹⁸ counsel and which relies specifically on the Supreme Court decisions of Strickland v. Washington and Hill v. Lockhart. We deliberately identify this exclusive doctrinal context in order to fend off the appellee’s almost desperate and unadorned mention, low in Footnote 5 of appellate brief, of Article 21 of the Maryland Declaration of Rights. The passing mention is nothing but a Parthian dart and has nothing to do with this case.

We are not about, sua sponte, to manufacture some unique Maryland obtrusion on well-settled and smoothly functioning national law. An Act, At Most, of Sub-Constitutional Omission The failure to advise of which the appellee complains was, at most, an act of nonfeasance and not one of misfeasance, an error of omission and not of commission. Since 1999, Maryland Rule of Procedure 4-242(e) has provided: (e) Collateral Consequences of a Plea of Guilty or Nolo Contendere. Before 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....

The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. (Emphasis supplied). In this case there was a total omission by everybody to say anything. This distinction between omission and commission may take on importance as we examine the national caselaw.

Whereas some of the analyses have recognized the possibility that the affirmative giving of erroneous advice on the collateral consequence of deportation may amount to the ineffectiveness of counsel pursuant to the Sixth Amendment, see, e.g., United States v. Couto, 311 F.3d 179 (2d Cir.2002), none has considered the mere omission to say anything at all to be so dire a constitutional breach. ⁴¹⁹ Round Up the Usual Suspects As the appellee entered his guilty plea on November 2, 2006, no such advice, as we have said, was given by anyone. The subject of deportation or, indeed, of the appellee’s non-citizenship never arose. Rule 4-242(e) was ostensibly ignored. Who, if anyone, dropped the ball?

One can picture the trial judge, the prosecuting attorney, and the defense attorney standing in an embarrassed circle, each pointing an accusing finger at one or both of the others. In such a situation, however, it is the defense attorney who unfortunately draws the short straw. The Sixth Amendment, after all, does not guarantee to a criminally accused a right to the effective assistance of the trial judge or a right to the effective assistance of the prosecuting attorney. The sweeping command to all hands by Rule 4-242(e) notwithstanding, the Sixth Amendment puts the defense attorney, all by himself, on the constitutional hot seat.

The Two-Pronged Test of Strickland The acid test for assessing the effective assistance of defense counsel was articulated by the Supreme Court in 1984 in Strickland v. Washington. It is a two-pronged test that appraises, in either order, 1) performance and 2) prejudice. Justice O’Connor’s opinion for the Court discussed the double-barreled thrust of the test. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Unless a defendant makes both showings, it cannot be said that the conviction or death ⁴²⁰ sentence resulted from a breakdoum in the adversary process that renders the result unreliable. 466 U.S. at 687 , 104 S.Ct. 2052 (emphasis supplied). Strickland’s Performance Prong It is the first of the two prongs — the performance. prong — that will command our almost exclusive attention in this case. Strickland went as far as it is reasonably feasible to go, 466 U.S. at 687-88 , 104 S.Ct. 2052 , in constructing a workable standard of lawyerly effectiveness. As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance.

The Court indirectly recognized as much when it stated in McMann v. Richardson that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not “a reasonably competent attorney” and the advice was not “within the range of competence demanded of attorneys in criminal cases.” When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. (Emphasis supplied). Strickland wisely admonished, 466 U.S. at 688-89 , 104 S.Ct. 2052 , that there are no objective absolutes or mathematical formulae for measuring performance.

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. ... No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the ⁴²¹ range of legitimate decisions regarding how best to represent a criminal defendant. (Emphasis supplied).

The Supreme Court did, however, emphatically stress that the effective assistance of counsel is not something to be second-guessed in hindsight on the basis of what worked and what did not. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 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.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” 466 U.S. at 689 , 104 S.Ct. 2052 (emphasis supplied). We will be applying, infra, this prong of the Strickland test to the performance of defense counsel at the appellee’s 2006 guilty plea. Strickland’s Prejudice Prong To establish ultimate ineffectiveness, however, a showing of lawyerly error is never enough. A defendant must also establish how he was actually prejudiced by the error.

With respect to the element of prejudice, the burden of proof is most unequivocally allocated to the defendant. [Ajctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that ⁴²² the defendant affirmatively prove prejudice. ... Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial____ Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. 466 U.S. at 693 , 104 S.Ct. 2052 (emphasis supplied). Strickland’s pronouncements with respect to the prejudice prong were made in contemplation of a trial that proceeds to a verdict on the merits. They are, therefore, not tidily apposite to the plea bargain situation being addressed in this case.

They nonetheless convey the notion that the adverse impact of an error must have some likely critical significance and be of more than speculative or trivial import. In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. 466 U.S. at 695-96 , 104 S.Ct. 2052 (emphasis supplied). The defendant must show that, but for the error, the result would probably have been different. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result ⁴²³ of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome. 466 U.S. at 694 , 104 S.Ct. 2052 (emphasis supplied). See also Bowers v. State, 320 Md. 416, 425 , 578 A.2d 734 (1990). For evaluating the prejudice prong in the context of the proffering of a guilty plea, it was Hill v. Lockhart that then provided a helpful supplement to Strickland v. Washington. For starters, it made explicit what had theretofore been only implicit, to wit, that Strickland’s two-pronged test applied to the taking of a guilty plea as surely as it did to the conduct of the trial itself. [T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. 474 U.S. at 58 , 106 S.Ct. 366 .

Most significantly for the guilty plea context, Hill v. Lockhart announced the standard for measuring prejudice. The second, or “prejudice,” requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, 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 (emphasis supplied). Hill v. Lockhart used that standard for measuring prejudice to hold that the petitioner in that case had failed to present even a prima facie case of prejudice because he had failed to allege that he would not have entered a guilty plea if his attorney had given him proper advice.

We find it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because in the present case we conclude that petitioner’s allegations are insufficient to ⁴²⁴ satisfy the Strickland v. Washington requirement of “prejudice. ” Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. 474 U.S. at 60 , 106 S.Ct. 366 (emphasis supplied). The appellee in this case did not fail to satisfy the prejudice prong, at least in that respect. The appellee was unable to be present at his post-conviction hearing because of his imprisonment in a federal facility. His affidavit, however, was received in evidence, and the hearing judge accepted as a matter of fact the appellee’s averment that, had he known about the possibility of deportation, he would never have pleaded guilty.

The hearing judge found: Petitioner has also satisfied the second prong of his ineffective assistance of counsel claim. Petitioner suffered prejudice because but for trial counsel’s conduct he would not have pled guilty and would have proceeded to trial. Petitioner contends that “Had I been aware of the aforementioned immigration consequences I now face, including an order o[f] deportation, I never would have proceeded in the manner that 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.” (Emphasis supplied). Because the appellee had no realistic chance of prevailing at a trial on the merits 1 and would, upon conviction, ⁴²⁵ have been facing a more severe sentence 2 and the same collateral consequence of deportation in any event, 3 we would probably have been highly skeptical about such a pro forma ⁴²⁶ representation, even if uncontroverted, were the matter before us.

That is not, however, our prerogative. We were not fact finders, and we have no choice but to accept the facts as properly found by the fact-finding judge. Before turning away from the prejudice prong, however, a clarification of our position is appropriate. The appellee, at this point in our analysis, is still alive with respect to the prejudice prong, but he has not necessarily prevailed with respect to that prong.

For a defendant to decide to enter a guilty plea because of some lack of advice from his attorney does not, ipso facto, establish constitutional “prejudice” within the contemplation of Strickland v. Washington and the Sixth Amendment. To be the effective catalyst for that degree of prejudice, the failure of lawyerly advice must itself rise to the level of ineffective assistance within the contemplation of Strickland v. Washington and the Sixth Amendment. Trivial advisory nonfeasance will not suffice as a cognizable catalyst. It is now appropriate, therefore, to turn to a consideration of the performance prong.

The Post-Conviction Ruling As to the Performance Prong It was with respect to Strickland’s performance prong that the post-conviction court ruled in the appellee’s favor. There is no question that the court used as its controlling standard the Sixth Amendment right to the assistance of counsel as interpreted by Strickland v. Washington. Petitioner contends that his defense attorney had an obligation to inform him of the potential deportation consequences of his guilty plea and that his failure to do so constitutes ineffective assistance of counsel under the Strickland and Hill standards. To establish an ineffective assistance claim, Petitioner must show that: 1) counsel’s performance was deficient, in light of all circumstances, to the extent that it exceeded the wide range of professionally competent assistance, and 2) counsel’s deficiency caused prejudice.

Strickland v. Washington, 466 U.S. 468 [668], ⁴²⁷ 694[, 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (1984).... The Court must give a great deal of discretion to counsel’s performance because there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 . (Emphasis supplied). After ruling resoundingly, completely in line with the prevailing national caselaw, that the guilty plea in this case was, indeed, voluntary and valid, the court clearly was struggling to reach a different result on the assistance of counsel claim.

Three pages of the eight-page Memorandum Opinion and Order were devoted to its consideration of the performance prong. Ironically, the first two-thirds of that consideration tilted strongly in favor of an opposite conclusion, as the Memorandum Opinion referred to the solid ranks of precedent holding against a finding of ineffective assistance. Petitioner contends that his trial counsel was ineffective because he failed to advise him of the potential deportation consequences of his plea. Although Maryland courts have not addressed this issue, the Fourth Circuit rejected this argument because trial counsel does not have a spontaneous duty to inform his client that a guilty plea may lead to deportation.

U.S. v. Yearwood, 863 F.2d 6 (4th Cir.1988). The Court opined, “to hold otherwise would place the unreasonable burden on defense counsel to ascertain and advise of the collateral consequences of a guilty plea which courts have uniformly held is not ineffective assistance of counsel.” Id. at 8. Accordingly, defense counsel’s performance was competent and the Defendant’s claim was denied. Courts in other jurisdictions have analyzed ineffective assistance of counsel claims by distinguishing between collateral and direct consequences of a guilty plea.

U.S. v. Campbell, 778 F.2d 764, 768 (11th Cir.1985), U.S. v. Gavilan, 761 F.2d 226, 228 (5th Cir.1985), U.S. v. Santelises, 509 F.2d 703, 704 (2nd Cir.1975). Courts distinguish between ⁴²⁸ collateral and direct consequences of a plea to determine if counsel’s advice fell within the general bounds of reasonable competence. State v. Zarate, 264 Neb. 690 [, 651 N.W.2d 215 (2002)] quoting McMann v. Richardson, 397 U.S. 759 [, 90 S.Ct. 1441 , 25 L.Ed.2d 763 ] (1970). Courts that apply this analysis have held that deportation is a collateral consequence and therefore a defense attorney’s failure to advise of those consequences does not constitute ineffective assistance of counsel.

(Emphasis supplied). The Memorandum Opinion then distinguished the two state cases relied on by the appellee, making the critical distinction we have already discussed between the misfeasance of giving erroneous advice and the mere nonfeasance of saying nothing at all. In support of his claim, Petitioner cites People v. Soriano and People v. Pozo, 194 Cal.App.3d 1470 [, 240 Cal.Rptr. 328 ] (1987); 746 P.2d 523 ([Colo.]1987). In both cases, trial counsel affirmatively misled their clients regarding the immigration consequences of their pleas and failed to investigate immigration law when their clients raised the issue.

(Emphasis supplied). It was at that point in the Memorandum Opinion that it suddenly shifted gears and turned, almost summarily, in another direction, as the court, seemingly reluctantly, ruled: In Maryland, Md. Rule 4-242(e) imposes an affirmative duty upon defense counsel to advise his client of the potential deportation consequences of his plea. Although generally courts have found deportation to be a collateral consequence of a guilty plea and therefore the failure to advise of the consequences is not ineffective assistance of counsel, Md. Rule 4-242(e) specifically requires defense counsel, among others, to advise the defendant that deportation, detention, or ineligibility for citizenship may occur as a result of the guilty plea. Defense counsel’s failure to satisfy the duty imposed by Md. Rule f-242(e) is deficient performance and outside the reasonable bounds of compe ⁴²⁹ tence in that he failed to comply with the mandate of the rule.

(Emphasis supplied). Maryland Rule 4-242(e) Is Not a Constitutional Mandate There was no discussion of how a failure to satisfy Rule 4-242(e) would be tantamount to a failure to satisfy the Sixth Amendment. The Sixth Amendment guarantee, in the context of entering a guilty plea, is to ensure that the criminal defendant has been given effective advisory assistance so that the plea will be constitutionally valid, as the hearing judge in this case ruled it to have been. The Sixth Amendment, on the other hand, does not guarantee life-counseling advice, however important such might be to the client, at a sub-constitutional level.

A local administration rule, such as Maryland Rule 4-242(e), cannot, of course, expand or contract the coverage of the Sixth Amendment and we are dealing, we would remind the appellee, with a Sixth Amendment issue. Tollett v. Henderson, 411 U.S. 258, 266-67 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973), makes it very clear that the advice that must be constitutionally “effective” is advice as to constitutional matters. Sub-constitutional concerns are, by definition, not constitutional. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not “within the range of competence demanded of attorneys in criminal cases.” Counsel’s failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof.

(Emphasis supplied). The Seventh Circuit made this distinction between a constitutional issue and a sub-constitutional issue very forcefully in Santos v. Kolb, 880 F.2d at 944-45: The issue is not whether defense counsel e'tred, in not discussing deportation, but whether his error amounted to a ⁴³⁰ constitutional violation____ The failure of petitioner’s counsel to inform him of the immigration consequences of his guilty plea, however unfortunate it might be, simply does not deprive petitioner of the effective assistance of counsel guaranteed by the Constitution. (Emphasis supplied). Effective Assistance of Counsel Is Not Omniscient Assistance There is another aspect of the performance prong that no one has even alluded to, including the parties in their appellate briefs.

There are a hundred possible collateral consequences of a guilty plea. Unless an attorney is absolutely bound, in a vacuum, to advise a client as to each and every one of them, there must be some factual compulsion as well as some legal compulsion to pick one out for special advisory comment. Why, as a matter of fact, was the appellee’s attorney in this case under any obligation to talk to his client about deportation? Attorneys are not omniscient, and a reasonable performance “under prevailing professional norms” does not demand omniscience.

Notwithstanding the directive of Rule 4-242(e), no advice with respect to the possible collateral consequence of deportation was given when the appellee entered his guilty plea on November 2, 2006. Was that a lapse on the part of the trial judge or the Assistant State’s Attorney or the lawyer for the appellee? As a matter of fact, it may well not have been. Every defendant, including the local president of the D.A.R., does not have to be advised about the possibility of deportation.

There must be something to alert the parties to the possible pertinence of such a relatively esoteric legal provision before the duty to advise with respect to that provision kicks into gear. Who, if anyone, knew that the 31-year-old defendant, who had been in the United States since he was 14 years of age, was a non-citizen? Indeed, there was nothing before the trial judge who took the guilty plea or before the post-conviction ⁴³¹ hearing to indicate that the trial judge, the prosecuting attorney, or the defense attorney had any reason to suspect that the appellee was a non-citizen. Upon the taking of the plea, a lengthy colloquy between the trial judge and the appellee took place in fluent and colloquial English.

In the affidavit the appellee submitted to the post-conviction hearing, there was no mention of defense counsel’s having had any awareness of the appellee’s citizenship status. Defense counsel, moreover, was not called as a witness at the post-conviction hearing. What this Court observed in Daley v. State, 61 Md.App. 486, 490 , 487 A.2d 320 (1985), is equally pertinent here: The factual predicate necessary to succeed on this claim— namely, that his lawyer knew or should have know that he was an alien — is absent. Petitioner testified that although he never told his attorney that he was an alien, he nevertheless expected his attorney to figure out that he was an alien just from, hearing his foreign accent.

Since the attorney was not called to testify, what the attorney knew or should have knotvn would be mere speculation. (Emphasis supplied). The concurring opinion of Justice White in Hill v. Lockhart, joined by Justice Stevens, reached the same decision as did the majority but on the ground that an attorney’s performance cannot be deemed ineffective because the attorney failed to advise the client with respect to a matter that the attorney himself knew nothing about. [Tjhere is no allegation that petitioner told his attorney about his previous Florida felony conviction. Indeed, it is incredible that the attorney would have filled in the “0” had he known there was a prior conviction.

Petitioner thus has no factual basis for suggesting that his attorney’s advice was incompetent.... Without an allegation that the attorney knew of petitioner’s prior conmction, but failed to inform him of the applicability of the Arkansas “second offender” statute, there is no reason to provide petitioner with an evidentiary hearing on his claim of ineffective assistance of counsel. None of his allegations, if proved, would entitle petitioner to relief, as there is nothing in the ⁴³² record, to indicate “that [defense] counsel’s representation fell below an objective standard of reasonableness.” 474 U.S. at 61-62 , 106 S.Ct. 366 (concurring opinion of White, J.) (emphasis supplied). The appellee offered no evidence that his lawyer was aware of his citizenship status.

That, however, is just one of several reasons why we hold that defense counsel was not ineffective within the contemplation of Strickland. The Symbiosis of a Voluntary Plea And the Effective Assistance of Counsel The King Solomon-like decision of ruling against the appellee on the voluntariness of the plea but in favor of the appellee on ineffectiveness of counsel is both perplexing and paradoxical. The close relationship between the voluntariness of a plea and the effectiveness of the advice producing the plea is so symbiotic that it is impossible analytically to separate the one from the other. Although there might readily be guilty pleas that are involuntary for reasons other than because of inadequate advice from counsel, the reverse is hard to hypothesize.

If the advice given with respect to a guilty plea is so ineffective as to lead to the granting of a new trial, one cannot imagine why the resulting guilty plea would not thereby necessarily have been involuntary. A voluntary plea is not simply a plea that is non-coerced. It is also a plea that must be knowledgeable. McMann v. Richardson, 397 U.S. 759, 770-71 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970); Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); Yoswick v. State, 347 Md. 228, 239 , 700 A.2d 251 (1997) (“To be valid, a plea of guilty must be made voluntarily and intelligently.”); State v. Priet, 289 Md. 267, 275 , 424 A.2d 349 (1981) (“[T]he decisions of this Court have always required that a guilty plea, to be valid, must be entered voluntarily and intelligently.”); Parker v. State, 160 Md.App. 672, 686 , 866 A.2d 885 (2005) (“[A] guilty plea must be knowing and intelligent, i.e., it is subject to the Johnson v. Zerbst standard.”). ⁴³³ Ineffective advice as to material constitutional matters would necessarily undermine the knowledgeability of a plea.

In a case such as this, therefore, the appellee’s two contentions at the post-conviction hearing would seem ineluctably to rise or fall together. If the required advice were ineffective, the resulting plea would not be knowing and intelligent and would, therefore, be invalid. If, on the other hand, the plea were valid, the necessary antecedent advice would have been demonstrably effective. “The proof of the pudding.... ” Our feeling that there is an indivisible identity between the voluntariness of the guilty plea and the effectiveness of counsel in advising with respect to the guilty plea is reinforced by the United States Court of Appeals for the Seventh Circuit in Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989): [T]he key to whether defense counsel has failed to provide effective assistance is whether his shortcomings resulted in an involuntary or unintelligent plea. (Emphasis supplied).

The Court of Appeals for the Eleventh Circuit confirmed the same identity of issues in United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985): [A] defendant’s la,ck of knowledge of those collateral consequences cannot affect the voluntariness of the plea. Accordingly, counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance. (Emphasis supplied). See also United States v. Couto, 811 F.3d 179, 187 (2d Cir.2002).

We are so persuaded by the sound reasoning of the hearing judge as to why the guilty plea in this case was, in fact, knowing and voluntary that the logic supporting that ruling inevitably spills over into the intertwined consideration of the effective assistance of counsel. It is hard to conclude that the quality of the advice that produced a voluntary and knowledgeable plea was not, ipso facto, effective. At the very least, it was not so lacking as to be “ineffective.” ⁴³⁴ The post-conviction judge squarely rejected the appellee’s argument that the failure to advise about the probability of deportation somehow negated the voluntariness of the guilty plea. State v. Daley [Daley v. State] directly contradicts Petitioner’s argument. 61 Md.App. 486 [, 487 A.2d 320 ].

In Daley , the petitioner’s deportation proceedings were a collateral consequence of his guilty plea.... Although Daley factually differs from the matter sub judice, it is based on Michel v. U.S. and Nunez Cordero v. U.S., two factually similar cases from other jurisdictions. In Michel, the defendant’s plea was voluntary and valid even though he did not know about the potential immigration consequences. 507 F.2d 461, 466 (2nd Cir.1974). The Second Circuit stated, “We do not think that the distinction between a direct and a collateral consequence depends upon the degree of certainty with which the sanction will be visited upon the defendant.” A court is only obligated to assume itself that the punishment that it is issuing is understood.

Because deportation is a collateral consequence of a plea, the court’s failure to advise the Defendant of this possibility did not invalidate his plea. Similarly, in Nunez Cordero, deportation proceedings were not the type of collateral consequence that could invalidate a plea. 533 F.2d 723, 726 (1st Cir.1976). “While deportation may have a serious effect on a defendant’s life, we are not disposed to treat deportation differently from all other consequences of conviction of which a defendant may learn.” Although these cases do not bind Maryland courts, the Court of Special Appeals relied on them in Daley. (Emphasis supplied). As we shall discuss infra, the hearing judge also properly categorized deportation as a collateral consequence of a conviction and drew the critical distinction between direct and collateral consequences.

Although the trial court is obligated to advise Petitioner of the deportation consequences of his plea, its failure to do ⁴³⁵ so does not invalidate the plea. Under Maryland Rule 5-242(e), the Court shall inform the Defendant of the immigration consequences of his plea. “Shall,” indicates that the instruction is mandatory. However, the committee note states that this rule does not overrule Daley and Yoswick, a case in which the Court determined that parole eligibility is a collateral consequence. 347 Md. 228 [, 700 A.2d 251 ] (1997). The court does not have this obligation because deportation is not a direct consequence of the plea, but rather it is a separate obligation imposed by this rule.

(Emphasis supplied). The conclusion of the post-conviction court was that knowledge or ignorance as to collateral consequences does not affect the voluntariness of a plea. We find it hard to conceive that the same reasoning would not apply with equal force to the adequacy of the advice that leads to the plea. Furthermore, Daley and its predecessors are applicable to the matter sub judice because deportation is a civil proceeding.

Deportation is a collateral consequence because it is a civil proceeding administered by another agency, upon which the trial judge has no control. Daley, quoting Michel, 407 [507] F.2d at 465. Therefore, deportation cannot impact the range of criminal punishment; rather the conviction invokes a new, civil-based form of punishment. As the State argues, deportation is not within the criminal trial court’s authority.

Therefore it does not impact the range of his punishment and consequently cannot be a direct consequence of the conviction. Accordingly, the trial court’s failure to advise Petitioner of potential deportation does not invalidate the plea. Petitioner’s post conviction relief on this basis is hereby denied. (Emphasis supplied).

We will not go so far as to hold, however, that the hearing judge’s ruling on one of the appellee’s related contentions, no matter how eminently correct we believe that ruling to have been, can operate as a collateral estoppel on the appellee’s other contention In purely mechanical terms, the appellee ⁴³⁶ might, had he taken a cross-appeal, have turned this argument based on consistency around and used it to attack the ruling as to the voluntariness of the guilty plea. The ruling as to ineffective assistance will have to rise or fall on its own merits. Although the post-conviction hearing ruling that the guilty plea was voluntary and valid will not in and of itself help the State’s cause as to effectiveness of counsel, the law that produced that ruling may be dispositively helpful. That the hearing judge ruled the plea to be voluntary is beside the point.

If this Court, on the other hand, based upon our independent understanding of the law 1) believes that the plea was knowing and voluntary, which we do; and 2) believes the issue of plea voluntariness and effectiveness of counsel are indivisibly intertwined, which we also do, then it follows syllogistically from our independent conclusion as to plea voluntariness that the assistance of counsel in advising as to that plea could not have been ineffective in a Sixth Amendment sense. Major Premise: A (voluntariness of plea) is constitutional. Minor Premise: B (effectiveness of counsel) equals A. Conclusion: Therefore, B is constitutional. There are, moreover, in addition to this syllogistic reason and in addition to the factual reason discussed supra, additional reasons why the State’s appeal must prevail.

Deportation Is a Collateral Consequence The possibility that a non-citizen might be deported from the United States as a result of a criminal conviction is clearly categorized as a “collateral” consequence of conviction and not as a “direct” consequence. In Daley v. State, 61 Md.App. 486, 489-90 , 487 A.2d 320 (1985), this Court held squarely: Applying the Cuthrell [v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir.1973) ] criteria to the present case, it is abundantly clear that Petitioner’s possible deportation is merely collateral to his guilty plea. First, the consequence of deportation arises from a separate civil proceeding. ⁴³⁷ Whereas Petitioner’s guilty plea was entered in state criminal court, deportation is adjudicated in federal civil court. (Emphasis supplied).

See also Cordero v. United States, 533 F.2d 723, 726 (1st Cir.1976) (“We are not disposed to treat deportation differently from all of the other collateral consequences.”); Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974) (holding that consequences such as deportation are collateral since they are civil proceedings administered by another agency over which the trial judge has no control). In Rivera v. State, 180 Md.App. 693, 721 , 952 A.2d 396 (2008), aff'd, 409 Md. 176 , 973 A.2d 218 (2009), Judge Rodowsky wrote for this Court in stating: Possible deportation is not one of “the [direct] consequence of the plea” about which the court is directed, by Rule 4-242(c), to inquire when a guilty plea is tendered. (Emphasis supplied). This categorization of deportation as a collateral consequence of a conviction is vitally important because of the dispositive distinction made by the caselaw between direct consequences and collateral consequences in terms of the advice that the Sixth Amendment requires to be given to a defendant contemplating a plea of guilty.

The Sixth Amendment demands effective advisement about direct consequences. It is indifferent to collateral consequences. The Great Direct Consequence — Collateral Consequence Divide 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. The Maryland Bible on that distinction is the opinion of Judge Raker for the Court of Appeals in Yoswick v. State, 347 Md. 228 , 700 A.2d 251 (1997). ⁴³⁸ A collateral consequence is not less weighty than a direct consequence.

It is simply less direct. Yoswick explained, id. at 240 , 700 A.2d 251 . A direct consequence of a guilty plea has been defined as one that has “a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” (Emphasis supplied). The sentence of imprisonment or the fine that might be imposed upon a conviction is a quintessential direct consequence.

A conviction may also entail a number of indirect or collateral consequences, some of which may be more onerous and devastating than the direct consequences of the conviction. 4 The gravity of the consequence, however, has never been the Sixth Amendment criterion. As Judge Raker pointed out: The imposition of a sentence may have a number of collateral consequences and a plea of guilty is not rendered involuntary in the constitutional sense if the defendant is not informed of the collateral consequences. Due Process does not require that a defendant he advised of the indirect or collateral consequences of a guilty plea, even if the consequences are foreseeable. Accordingly, under Maryland Rule 4-242, the consequences of the plea include only direct consequences, not collateral or indirect consequences.

Id. at 240 , 700 A.2d 251 (emphasis supplied). The opinion pointed out, id., that “numerous other jurisdictions have also made this distinction,” as it cited seven United States Courts of Appeal and eight sister states without noting a dissenting voice. In the Yoswick case itself, the defendant had been led to believe that he would be eligible for parole within 10 years and only later learned that he would not be eligible for parole until ⁴³⁹ he had served 15 years. His petition for post-conviction relief made the following claim: In his Amended Petition for Post Conviction Relief, Petitioner contended that: (1) his plea did not comply with Maryland Rule 4-242(c) because he was not informed that, in order to become eligible for parole, he had to first serve fifteen years, and (2) he received ineffective assistance of counsel because counsel misadvised him regarding the requirements for parole____ Yoswick testified that he spoke with his trial attorney in August 1992, and she told him that if he accepted the State’s plea offer, his sentence would be forty years and he would be eligible for parole after ten years....

He said that had he been advised correctly, he would not have pleaded guilty. His trial counsel also testified at the hearing. She stated that the original plea agreement was for a straight forty-year sentence and that she had called the parole commission and learned that an inmate must serve approximately one-fourth of his sentence before becoming eligible for parole. The plea agreement was later changed to a life sentence with all but forty years suspended.

Defense counsel could not remember if she told Yoswick about parole eligibility restrictions imposed by Maryland Code (1957, 1990 Repl.Vol.), Article 41, § 4-516(b), the statutory provision in effect at the time. Id. at 236, 700 A.2d 251 (emphasis supplied) Judge Raker’s opinion noted that this Court, in an unpublished opinion, had similarly held that “a defendant must be advised only of direct consequences ... and not collateral consequences.” The Court of Special Appeals ... held that a defendant must be advised only of direct consequences of a plea of guilty, and not collateral consequences. The intermediate appellate court held that parole eligibility is a collateral consequence of a plea of guilty and, accordingly, the trial court is not required to furnish a defendant with information ⁴⁴⁰ about parole eligibility in order for a plea to be voluntary. We agree and shall affirm.

Id. 347 Md. at 238 , 700 A.2d 251 (emphasis supplied). The rationale for the holding of the Court of Appeals, it should be noted, was not based on the parole consequences of a conviction specifically but, categorically, on collateral consequences generally: In this case we must decide whether a judge’s failure to advise a defendant offering to plead guilty of the parole consequences of the sentence renders the plea unknowing and involuntary. We shall hold that the trial court’s failure to advise a defendant who is planning to plead guilty of parole consequences does not render a plea invalid because parole consequences are collateral rather than direct consequences of a guilty plea. Id. at 231 , 700 A.2d 251 (emphasis supplied).

In explaining why it was holding that parole eligibility is a collateral consequence rather than a direct consequence of a conviction, the Court of Appeals pointed out, inter alia, that a parole decision “falls within the