State v. Sanmartin Prado

WATTS, J. In Padilla v. Kentucky, 559 U.S. 356, 374, 369 , 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), the Supreme Court held for the first time that, pursuant to the Sixth Amendment right to counsel, “counsel must inform [his or] her client whether his [or her] plea carries a risk of deportation[,]” and that, “when ⁶⁶⁶ the deportation consequence is truly clear, ... the duty to give correct advice is equally clear.” After Padilla , in Denisyuk v. State, 422 Md. 462, 466 , 30 A.3d 914, 916 (2011), this Court held, in relevant part, that “defense counsel’s failure to advise [the defendant] of the deportation consequence of his guilty plea was constitutionally deficient[,]” and that, “based on the record developed at the postconviction hearing and the [postconviction] court’s express finding on the subject, [] counsel’s deficient performance prejudiced [the defendant].” Additionally, in the wake of Padilla , courts in other jurisdictions have held that a defendant’s counsel’s performance was constitutionally deficient where the defendant’s counsel either failed to advise the defendant whatsoever of the immigration consequences of the defendant’s guilty plea, or affirmatively misadvised the defendant about the immigration consequences of the defendant’s guilty plea. Murkier, however, are the waters where a defendant’s counsel advises that an offense is deportable and uses “qualifying” words — such as “very likely be deported,” Chacon v. State, 409 S.W.3d 529, 532 (Mo.Ct.App.2013) (emphasis omitted), or “strong chance” of being deported, State v. Shota, 364 Wis.2d 63 , 868 N.W.2d 93, 96 (2015) — when advising a defendant of the immigration consequences attendant to a plea. In this case, we must decide whether defense counsel’s advice — that there “could and probably would be immigration consequences” for the defendant’s conviction for second-degree child abuse because it was a “deportable” or “possibly deportable” offense — was constitutionally deficient because defense counsel “qualified” his advice, or was correct advice that adequately informed the defendant of the risk of deportation. We hold that, where the coram nobis court found that defense counsel advised the defendant that “this was a ‘deportable offense’ and [the defendant] ‘could be deported ... if the federal government chose to initiate deportation proceedings,’ and it was ‘possible’ that the [defendant] would be deported[,]” and where defense counsel testified that he also advised the defendant that “there could and probably would be immigration consequences” and “that it was a deportable or a possibly ⁶⁶⁷ deportable offense,” and the advice was given before a plea of not guilty by way of an agreed statement of facts proceeding, such advice was not constitutionally deficient, but rather was “correct advice” about the “risk of deportation,” as required by Padilla, 559 U.S. at 369, 374 , 130 S.Ct. 1473 .

BACKGROUND On June 8, 2010, Juan Carlos Sanmartín Prado (“Sanmartín Prado”), Respondent, a citizen of Ecuador and a legal permanent resident of the United States, was charged by criminal information filed in the Circuit Court for Baltimore County (“the circuit court”) with first-degree child abuse causing severe physical injury, second-degree child abuse, and second-degree assault against his three-year-old daughter. On January 6, 2011, Sanmartín Prado pleaded not guilty by way of an agreed statement of facts to Count 2, second-degree child abuse, 1 pursuant to an agreement with the State. 2 At that time, Sanmartín Prado’s trial counsel (“trial counsel”) engaged ⁶⁶⁸ in a waiver colloquy with Sanmartín Prado; and the following exchange occurred as to Sanmartín Prado’s immigration status: [TRIAL COUNSEL]: And understand what — we have had discussions with respect to your immigration status. Is that correct? [SANMARTIN PRADO]: Yes, sir. [TRIAL COUNSEL]: You have a green card and you have been a permanent resident of the United States for over twelve years, is that correct? [SANMARTIN PRADO]: Yes, sir. [TRIAL COUNSEL]: You are not under an active deportation order? [SANMARTIN PRADO]: No. [TRIAL COUNSEL]: And there’s no immigration detainer that we are aware of. Is that correct? [SANMARTIN PRADO]: That’s correct. [TRIAL COUNSEL]: And you understand that I’m not making any promises and the [circuit court] is not making any promises about what the federal government could possibly do in the future with respect to reviewing this conviction.

Is that correct? [SANMARTIN PRADO]: Yes, sir. [TRIAL COUNSEL]: And you still wish to proceed this morning? [SANMARTIN PRADO]: Yes, sir. Thereafter, the circuit court announced that “Sanmartín Prado ha[d] waived his rights to a jury trial and to a Court trial in this matter, and that he ha[d] done so voluntarily and understanding the rights that he has.” The State then read into the record the following agreed statement of facts: ⁶⁶⁹ [O]n April 28th, 2010, the Crimes Against Children’s Unit of the Baltimore County Police Department received information regarding a possible child abuse that occurred to a three-year-old named B[. 3 ] The matter was assigned to Detective Lane to investigate. Detective Lane’s investigation revealed that on 4-18-2010, ten days earlier, the child was in her father, ... Sanmartín Prado’s care and during that time she sustained a serious burn to the left side of her face.

During that time the mother of the child, Gina Salinas became aware of the burn. Together [ ] Salinas and [ ] Sanmartín Prado made the decision not to take the child to the hospital, however, the next day, April 19th 2010, the child was taken to Johns Hopkins Hospital. There the mother and [Sanmartín Prado] told the hospital staff a story that consisted of this being an accident. The child was in the bath tub, she turned the water on and she burnt her face.

The police were not called at that time. Days later the police were informed of this injury. The police did interview [ ] Salinas and she told the police that she had left her child B[.] with [Sanmartín Prado] while she worked and when she came home from work she found B[.] to have a serious burn to the left side of her face. [Sanmartín Prado] was subsequently interviewed by Detective Lane on May 3rd of 2010. All of this happening well after the child had received care and treatment for what was determined to be second and third degree burns on the left side of her face.

By this point those burns had scabbed over. The injury was just a discoloration to the child’s face, however, on May 3rd, 2010, while speaking with Detective Lane, [Sanmartín Prado] after being Mirandized did agree that on April 18th, 2010, while his wife worked, he cared for his children. At ⁶⁷⁰ some point B[.] woke up from her nap and she was inconsolable. She was crying for her mother and, as he had done in the past, he took the spray from the shower head and as she sat in the bathroom on the toilet he sprayed the water at her. [Sanmartín Prado] would say that most of the water went on the floor, however, the child continued to cry, he believed crying still for her mother.

He would say that he had no idea that the water was as hot as it was. The bath tub was examined and it was that the faucet was just one faucet for both cold and hot water. The water temp — well, [Sanmartín Prado] said that he sprayed his daughter in the facial area and the body for approximately two minutes. The water temp was tested and it was found that after one minute that the water would reach a temperature of 128 degrees.

Studies have shown that at 122 degrees the skin will burn after one minute. Again, if called to testify, [] Salinas, the mother, would attest she was not home when the burns occurred. Again Detective Lane would attest that [Sanmartín Prado] admitted that as a course of punishment he turned the water on his child not meaning to burn her, is — would be his words, but that he did, in fact, spray her with the water and that did in fact cause burns that were subsequently seen approximately ten days after being treated. All events occurred in Baltimore County, and that would be the State’s case.

The circuit court found Sanmartín Prado guilty of second-degree child abuse, and sentenced him to five years’ imprisonment with all but two years suspended, followed by two years of supervised probation with the condition that Sanmartín Prado complete a physical offender treatment program and a parenting course offered by the Department of Social Services. The charges for first-degree child abuse causing severe physical injury and second-degree assault were nol prossed. Sanmartín Prado did not appeal the conviction. ⁶⁷¹ Over two years later, on October 21, 2013, Sanmartín Prado filed in the circuit court a “Petition for Writ of Error Coram Nobis” (“the petition”), contending that, as a result of the conviction, he was facing a significant collateral consequence, namely, “that he is automatically deportable from the United States[J” Sanmartín Prado stated that, as of the time of the filing of the petition, he was “in proceedings before the Immigration Court with one of the allegations being the conviction in the [] case to substantiate or to support the government’s claim for deportation.” Sanmartín Prado alleged that his trial counsel had rendered ineffective assistance of counsel at the January 6, 2011 plea hearing by failing to advise him that he was subject to automatic deportation as a result of the conviction, and by failing to specify what immigration consequences he could face as a result of conviction, including being subject to automatic deportation. According to Sanmartín Prado, had he known that he would be subject to automatic deportation as a result of the conviction, he would not have pled not guilty on an agreed statement of facts, and instead would have gone to trial.

On November 18, 2013, the State filed an answer and motion to dismiss the petition without a hearing, contending, in pertinent part, that trial counsel properly advised Sanmartín Prado of the potential immigration consequences of a conviction. On January 28, 2014, the circuit court conducted a hearing on the petition. At the hearing, Sanmartín Prado called trial counsel as a witness. Trial counsel testified that he visited Sanmartín Prado in jail before the January 6, 2011 proceeding, and the following exchange occurred concerning trial counsel’s discussions with Sanmartín Prado about the immigration consequences of a conviction: [CORAM NOBIS COUNSEL]: Now, when you discussed these matters with [ ] Sanmartín [Prado], did you ask him if he was a citizen of the United States? [TRIAL COUNSEL]: I don’t know if I exactly asked him if he was a citizen, I asked him where he was born, he told me he was from Ecuador, he came to the United States with his mother when he was eighteen and he told me that he was a ⁶⁷² permanent resident and had a green card and had, had so had that green card since 1998.

That’s what my notes reflect. [CORAM NOBIS COUNSEL]: But did you, you did not determine whether or not, since 1998, he had become a citizen? [TRIAL COUNSEL]: No, I knew he was not a naturalized U.S. citizen, if that’s your question. [CORAM NOBIS COUNSEL]: Now, after having gotten that information, what, if anything, did you explore to determine if any problems he might have with immigration? [TRIAL COUNSEL]: On December ... 30th of 2010,1 met with [Sanmartín Prado] for the final time at the Detention Center. I explained to him that the, there could and probably would be immigration consequences as a result of the plea but that the, the term of art that I usually use is that immigration is a moving target and that it was, I recall telling him that it was a deportable or a possibly deportable offense, but the plea agreement that the State had offered, he indicated to me that he was interested in taking that and my notes, written on the inside of my file jacket, I can read them verbatim if you’d like. [CORAM NOBIS COUNSEL]: That’s fine. If that refreshes your recollection, that’s fine. [TRIAL COUNSEL]: It says, [Sanmartín Prado] wants deal, prefer Alford plea, quote, cannot admit guilty, unquote, spoke extensively re imm, I-M-M-period, consequences. [CIRCUIT COURT]: I’m sorry, slow down,— [TRIAL COUNSEL]: Which I would take to be immigration consequences. [CORAM NOBIS COUNSEL]: Okay. What did you explain to him about immigration consequences? ⁶⁷³ [TRIAL COUNSEL]: That it’s a deportable offense and he could be deported if the Federal government chooses to deport him. [CORAM NOBIS COUNSEL]: Why is it a deportable offense? [TRIAL COUNSEL]: Because it is an aggravated felony which carries more than a year in jail. [CORAM NOBIS COUNSEL]: And where did you get that information from? [TRIAL COUNSEL]: My, I’ve always wanted to say this, my training, knowledge and experience as a lawyer. [CORAM NOBIS COUNSEL]: That’s good.

Nothing wrong with that. And at the time that you advised my client— [CIRCUIT COURT]: Can, can you go, hold on, [coram nobis counsel]. [Trial counsel], you told, you testified that you told [Sanmartín Prado], the question to you was, what consequences did you advise him of and what you said to [Sanmartín] Prado was that it was a deportable offense, he could be deported and then what did you say, if the immigration officials? [TRIAL COUNSEL]: If the Federal government chooses to exercise their right to deport him. [CIRCUIT COURT]: Okay. [TRIAL COUNSEL]: Or to, to initiate deportation proceedings. [CORAM NOBIS COUNSEL]: Nowhere in that colloquy [during the January 6, 2011 proceeding] do you ever tell [ ] Sanmartín Prado that he’s automatically deportable as a result of the conviction in this case, correct? [TRIAL COUNSEL]: No. [CORAM NOBIS COUNSEL]: [D]id you ever tell [ ] Sanmartín Prado that the conviction would make him automatically deportable under all circumstances? ⁶⁷⁴ [TRIAL COUNSEL]: I don’t know if I used the term automatic but I certainly said it was a deportable offense, so. Trial counsel also testified that he met with Sanmartín Prado’s wife and that his “notes d[id] not reflect that we discussed the possible immigration consequences[,] but I can’t believe I would not have discussed those with her[.]” On cross-examination, the prosecutor asked trial counsel what he meant “by deportation is a moving target[,]” to which trial counsel responded: Especially back in 2009, 2010 even, early into 2011, I found that there was sort of some arbitrary enforcement of the Federal immigration laws. Some people were getting deported, other people were not.

Some people were getting deportation orders. So, you know, I guess, in hindsight, you know, I shouldn’t have used the term moving target but I think it was clear to [Sanmartín Prado] and I think I made it pretty clear on the record that this was deportable and he and I discussed that and that that was a very real collateral consequence to the plea. When asked by the prosecutor “at no time did you tell [Sanmartín] Prado you will not be deported as a result of this case[,]” trial counsel emphatically testified: “I absolutely, positively did not tell him you, because if I, if that, if I were that certain, I would have not had the discussion at all.” Sanmartín Prado testified on his own behalf through the assistance of a Spanish-language interpreter. According to Sanmartín Prado, he saw trial counsel at the jail twice without the assistance of an interpreter.

Coram nobis counsel asked about Sanmartín Prado’s discussions with trial counsel about immigration consequences and the following exchange occurred: [CORAM NOBIS COUNSEL]: Did you know when you went to Court that if you were found guilty, you would be deported to your home country? [SANMARTIN PRADO]: No. ⁶⁷⁵ [CORAM NOBIS COUNSEL]: Okay. Did anybody tell you that could happen, either [trial counsel] or anybody else, before you went to Court? [SANMARTIN PRADO]: No. [CORAM NOBIS COUNSEL]: Okay. When did you first find out that you were subject to, or you were going to be deported as a result of your case? [SANMARTIN PRADO]: About maybe six months after I got out from jail, they came to the house, nobody told me anything, [Immigration and Customs Enforcement] came to the house. [CORAM NOBIS COUNSEL]: Okay. Now, if you would have known that you would be deported by being convicted, would you have not asked for a trial or would you have asked for a trial, in your case, an actual trial? [SANMARTIN PRADO]: Yes.

On cross-examination, Sanmartín Prado testified that trial counsel never advised him that he could be deported, but acknowledged that he and trial counsel had discussed his immigration status: [PROSECUTOR]: Sir, it’s your testimony that [trial counsel] never told you that you could be deported because of this crime? [SANMARTIN PRADO]: He never told me, maybe he told me in other words that I did not understand, but he never told me about deportation. * ❖ * [PROSECUTOR]: Did [trial counsel] ask you regarding your immigration status? ... Sir, isn’t it true that [trial counsel] asked you if you were a citizen of this country? [SANMARTIN PRADO]: He asked me but I said no I was a resident. [PROSECUTOR]: Okay. So did you talk about your green card and your status in this country? [SANMARTIN PRADO]: Yes. ⁶⁷⁶ [PROSECUTOR]: So you admit that [trial counsel] did have conversations regarding your immigration status? [SANMARTIN PRADO]: Yes. Because the first time he saw me, he asked me if I was a resident and I told him yes.

And, in response to the prosecutor’s question “Did [trial counsel] ever tell you you would not be deported as a result of this crime or he never talked to you about deportation?[,]” Sanmartín Prado stated: “He never talked about that.” On June 12, 2014, the coram nobis court issued a Memorandum and Order denying the petition. In relevant part, the circuit court found: [A]t the coram nobis hearing, [ ] trial counsel testified, and the Court finds as a fact, that he met with [Sanmartín Prado] at the Baltimore County Detention Center before trial and explained the immigration consequences of a guilty verdict, including that this was a “deportable offense” and [Sanmartín Prado] “could be deported ... if the federal government chose to initiate deportation proceedings,” and it was “possible” that [Sanmartín Prado] would be deported. [Sanmartín Prado] testified that trial counsel never told him he “would be deported[,]” but acknowledged that he did have conversations with trial counsel regarding his immigration status. The circuit court ruled: Upon consideration of the evidence presented to this Court as well as the record of the plea hearing, the Court finds that [Sanmartín Prado] has not rebutted the presumption that he “intelligently and knowingly” failed to raise the allegation on appeal and [Sanmartín Prado] has made no showing that special circumstances exist for his failure to make the allegation of error on appeal. On July 9, 2014, Sanmartín Prado filed a notice of appeal.

On October 2, 2015, in a reported opinion, the Court of Special Appeals reversed the judgment of the circuit court and remanded the case to the circuit court for further proceedings. See Sanmartin Prado v. State, 225 Md.App. 201, 214 , 123 A.3d 652, 660 (2015). Relevant here, the Court of Special Appeals ⁶⁷⁷ held that “trial counsel qualified his statements to Sanmartín Prado as to whether a conviction would render him deportable[,]” and that, accordingly, “Sanmartín Prado established that [ ] trial counsel did not provide him with the correct ‘available advice’ about the deportation risk.” Id. at 213 , 123 A.3d at 659 . Because Sanmartín Prado had established the first prong of the Strickland 4 test, the Court “remand[ed] the case to the circuit court to [determine] whether there is a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at 213-14 , 123 A.3d at 660 (citation omitted).

Thereafter, the State filed in this Court a petition for a writ of certiorari, which we granted. See State v. Sanmartin Prado, 446 Md. 291 , 132 A.3d 193 (2016). DISCUSSION The Parties’ Contentions The State contends that the Court of Special Appeals erred in holding that trial counsel’s advisement to Sanmartín Prado about the possible immigration consequences of conviction was constitutionally deficient, and that the Court’s holding is inconsistent with Padilla, 559 U.S. 356 , 130 S.Ct. 1473 , and this Court’s holding in Denisyuk, 422 Md. 462 , 30 A.3d 914 . According to the State, under Padilla and Denisyuk , a lawyer must advise his or her client of whether there is a “risk of deportation” and “that deportation is a likely consequence of [a] guilty plea.” (Citations omitted).

The State argues that trial counsel’s advice and representation to Sanmartín Prado “fully comported” with Padilla and Denisyuk because trial counsel advised Sanmartín Prado that second-degree child abuse was a deportable offense and that there could and probably would be immigration consequences if he were convicted of the offense. The State asserts that, unlike in Padilla or Denisyuk , trial counsel in this case neither failed altogether ⁶⁷⁸ to advise Sanmartín Prado concerning immigration consequences, nor misadvised Sanmartín Prado about the immigration consequences. The State maintains that the holding of the Court of Special Appeals sets a new standard, and is inconsistent with other jurisdictions’ holdings in the wake of Padilla , and with the standard set forth in Maryland Rule 4-242(f) (Collateral Consequences of a Plea of Guilty, Conditional Plea of Guilty, or Plea of Nolo Contendere). Sanmartín Prado responds that the Court of Special Appeals correctly held that trial counsel failed to properly advise him in open court of the immigration consequences of a conviction in accordance with Padilla and Denisyuk .

According to Sanmartín Prado, the Court of Special Appeals correctly concluded that proper advisement of immigration consequences consists of defense counsel advising a defendant that he or she is “deportable,” without any qualification, such as “if the federal government cho[o]se[s] to initiate deportation proceedings,” “possibly deportable,” or similar qualifiers. Sanmartín Prado argues that trial counsel’s advisement was deficient because trial counsel neither advised that deportation was mandatory and automatic nor advised “without equivocation” that Sanmartín Prado was deportable. Sanmartín Prado asserts that trial counsel misadvised him of the immigration consequences of a conviction by equivocating and stating that he “could be deportable or probably would be deportable and that immigration is a moving target[.]” Sanmartín Prado maintains that trial counsel’s advisements led him to believe that there was a possibility that there would be no immigration consequences for a conviction. Sanmartín Prado also contends that the advisements in this case violated Maryland Rule 4-242, which Sanmartín Prado argues requires that an advisement of immigration consequences of a guilty plea be made on the record in open court.

In so contending, Sanmartín Prado points out that, in this case, proceeding by way of a not guilty plea upon an agreed statement of facts was the functional equivalent of a guilty plea. In a reply brief, the State contends that Padilla did not require trial counsel to advise Sanmartín Prado in an unequiv ⁶⁷⁹ ocal statement that he would be deported if convicted. The State also takes the position that, unlike in Padilla and Denisyuk , Sanmartín Prado did not enter and was not convicted based upon a guilty plea. Stated otherwise, the State theorizes that the not guilty agreed statement of facts arrangement was not the functional equivalent of a guilty plea.

Standard of Review We review without deference a trial court’s resolution of questions of law. See, e.g., State v. Daughtry, 419 Md. 35, 46 , 18 A.3d 60, 66 (2011) (“It is well settled that where a case involves an interpretation and application of case law, [the appellate c]ourt must determine whether the [trial] court’s conclusions are legally correct under a non-deferential standard of review.” (Citations, brackets, ellipses, and internal quotation marks omitted)). As to a trial court’s determination concerning issues of effective assistance of counsel, in State v. Jones, 138 Md.App. 178, 209 , 771 A.2d 407, 425 (2001), aff'd, 379 Md. 704 , 843 A.2d 778 (2004), the Court of Special Appeals has stated: The standard of review of the [trial] court’s determinations regarding issues of effective assistance of counsel is a mixed question of law and fact. We will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.

But, a reviewing court must make an independent analysis to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed. In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any----[The appellate court] will evaluate anew the findings of the [trial] court as to the reasonableness of counsel’s conduct and the prejudice suffered. As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case. (Citations, ellipses, and internal quotation marks omitted).

See also Coleman v. State, 434 Md. 320, 331 , 75 A.3d 916 , 923 ⁶⁸⁰ (2013) (“[T]he ... components of the ineffectiveness inquiry are mixed questions of law and fact. Thus, in our independent examination of the case, we re-weigh the facts as accepted in order to determine the ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.” (Citations and internal quotation marks omitted)). Coram Nobis Relief Recently, in State v. Smith, 443 Md. 572, 623-24 , 117 A.3d 1093, 1123-24 (2015) (per curiam), we described coram nobis relief as follows: Coram nobis is extraordinary relief designed to relieve a petitioner of substantial collateral consequences outside of a sentence of incarceration or probation where no other remedy exists. “[T]he writ of error coram nobis is an ancient common law device traditionally utilized to correct errors of fact.” Rivera v. State, 409 Md. 176, 189-90 , 973 A.2d 218, 227 (2009) (citation omitted). “The purpose of the writ is to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.” Skok v. State, 361 Md. 52, 68 , 760 A.2d 647, 655 (2000) (citation omitted). In Skok, id. at 75, 78 , 760 A.2d at 659, 661 , we expanded the scope of coram nobis relief, holding that coram nobis applies to both errors of fact and errors of law “on constitutional or fundamental grounds.” We explained: “[TJhere should be 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.” Id. at 78 , 760 A.2d at 661 .

We added, however: (1) “the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional or fundamental character[,]” id. at 78 , 760 A.2d at 661 ; (2) “a presumption of regularity attaches to the criminal case, and the burden of proof is on the coram ⁶⁸¹ nobis petitioner[,]” id. at 78 , 760 A.2d at 661 ; (3) “the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction[,]” id. at 79 , 760 A.2d at 661 ; (4) the issue raised in a coram nobis action must not be waived or finally litigated, see id. at 79 , 760 A.2d at 661-62 ; and (5) there must not be another statutory or common law remedy available, see id. at 80 , 760 A.2d at 662 . Ineffective Assistance of Counsel As to effective assistance of counsel, in Taylor v. State, 428 Md. 386, 399-400 , 51 A.3d 655, 662 (2012), this Court explained that, in Maryland, we follow the test announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), stating: Under both the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, 5 a criminal defendant is entitled to the assistance of counsel, which means “the right to the effective assistance of counsel.” Duvall v. State, 399 Md. 210, 220-21 , 923 A.2d 81, 88 (2007) (quoting Strickland, 466 U.S. at 686 [ 104 S.Ct. 2052 ]) (quotation mark omitted). The defendant who claims that he or she received ineffective assistance of counsel, as a general rule under the test announced in Strickland and followed ever since, must make two showings: “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.” 466 ⁶⁸² U.S. at 687[ 104 S.Ct. 2052 .] In regard to the first, “performance” prong of Strickland , the defendant must demonstrate that counsel’s alleged acts or omissions, based on “the facts of the particular case, viewed as of the time of counsel’s conduct,” fell “outside the wide range of professionally competent assistance.” Id. at 690 [ 104 S.Ct. 2052 .] In regard to the second, “prejudice” prong, “[t]he 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 .] As to the second prong, we have explained that “the standard to be used is whether there is a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Coleman, 434 Md. at 331 , 75 A.3d at 923 (citations and internal quotation marks omitted). Maryland Rule 4-242(f) Maryland Rule 4 — 242(f), entitled “Collateral Consequences of a Plea of Guilty, Conditional Plea of Guilty, or Plea of Nolo Contendere,” provides that non-citizens be advised of immigration consequences of a plea as follows: Before the court accepts a plea of guilty, a conditional plea of guilty, or a plea of 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, (2) that by entering a plea to the offenses set out in Code, Criminal Procedure Article, § 11-701,[ 6 ] the defendant shall have to register with the defendant’s supervising authority as defined in Code, Criminal Procedure Article, § ll-701(p), and (3) that the defendant should consult with defense counsel if the defendant is represented and needs additional ⁶⁸³ information concerning the potential consequences of the plea. The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.[ 7 ] (Emphasis added). 8 U.S.C. § 1227 As of the January 6, 2011 proceeding in this case, 8 U.S.C. § 1227 , concerning “Deportable aliens,” provided, in relevant part, as it does now: (a) Classes of deportable aliens Any alien ... in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: (2) Criminal offenses (A) General crimes (iii) Aggravated felony Any alien who is convicted of an aggravated felony at any time after admission is deportable.[ 8 ] ⁶⁸⁴ (E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and (i) Domestic violence, stalking, and child abuse Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.

Padilla v. Kentucky In Padilla, 559 U.S. at 369, 360 , 130 S.Ct. 1473 the Supreme Court held that “Padilla ha[d] sufficiently alleged constitutional deficiency to satisfy the first prong of Strickland ” because “constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation.” Indeed, for the first time, the Supreme Court held that, pursuant to the Sixth Amendment right to counsel, “counsel must inform [his or] her client whether his [or her] plea carries a risk of deportation.” Id. at 374 , 130 S.Ct. 1473 . In Padilla, id. at 359, 130 S.Ct. 1473 Padilla, a native of Honduras who had been a legal permanent resident of the United States for more than forty years, pleaded guilty to transportation of a large amount of marijuana. Padilla later sought post-conviction relief, alleging that his counsel both failed to advise him of the immigration consequences of his plea and misadvised “him that he did not have to worry about his immigration status since he had been in the country so long.” Id. (citation and internal quotation marks omitted).

According to Padilla, he relied on his coun ⁶⁸⁵ sel’s erroneous advice when he pleaded guilty, and, had he received correct advice, “he would have insisted on going to trial[.]” Id. The Supreme Court of Kentucky concluded that Padilla was not entitled to post-conviction relief. See id. The Supreme Court then granted certiorari to determine “whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.” Id. at 360 , 130 S.Ct. 1473 .

The Supreme Court began by examining the evolution of federal immigration law over the past century, observing that, “[w]hile once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.” Id. According to the Supreme Court, under current immigration laws, deportation or removal “is now virtually inevitable for a vast number of noncitizens convicted of crimes.” Id. As a result, “[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Id. at 364 , 130 S.Ct. 1473 . The Supreme Court then determined that the Sixth Amendment right to counsel, and the Strickland test for effective assistance of counsel, were applicable to Padilla’s claim.

Id. at 366, 130 S.Ct. 1473 . As to the first prong of Strickland— whether “counsel’s representation fell below an objective standard of reasonableness” — the Supreme Court stated that “[t]he weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation.” Id. at 366-67 , 130 S.Ct. 1473 (citations and internal quotation marks omitted). Considering the circumstances of Padilla’s case, the Supreme Court explained: In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences for Padilla’s conviction. See 8 U.S.C. § 1227 (a)(2)(B)® (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or ⁶⁸⁶ attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less or marijuana, is deportable”).

Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. Padilla, 559 U.S. at 368-69 , 130 S.Ct. 1473 (ellipsis in original).

The Supreme Court nonetheless recognized that “[i]m-migration law can be complex,” and that there may be “situations in which the deportation consequences of a particular plea are unclear or uncertain.” Id. at 369 , 130 S.Ct. 1473 . Under those circumstances, “[w]hen the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. (footnote omitted). However, “when the deportation consequence is truly clear, as it was in [Padilla’s] case, the duty to give correct advice is equally clear.” Id.

(emphasis added). Thus, the Supreme Court concluded that Padilla had sufficiently alleged that his counsel provided constitutionally deficient representation, satisfying the first prong of Strickland , and that the Kentucky courts would need to determine “in the first instance” whether Padilla had satisfied the second prong of Strickland , concerning prejudice. Id. The Supreme Court also rejected the United States’s contention that “Strickland applies to Padilla’s claim only to the extent that he ha[d] alleged affirmative misadvice.” Id.

Ac ⁶⁸⁷ cording to the Supreme Court, such a holding would lead to “two absurd results”: First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement. When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available.

It is quintessentially the duty of counsel to provide [his or] her client with available advice about an issue like deportation and the failure to do so clearly satisfies the first prong of the Strickland analysis. Id. at 370-71, 130 S.Ct. 1473 (citations, footnote, and internal quotation marks omitted). The Supreme Court noted, though, that “[s]urmounting Strickland’s high bar is never an easy task.” Id. at 371 , 130 S.Ct. 1473 (citations omitted). The Supreme Court concluded as follows: It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel.

To satisfy this responsibility, we now hold that counsel must inform [his or] her client whether his [or her] plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. ⁶⁸⁸ Id. at 374-75 , 130 S.Ct. 1473 (emphasis added) (citations and internal quotation marks omitted).

Denisyuk v. State Over a year later, in Denisyuk, 422 Md. at 466 , 30 A.3d at 916 , this Court held, in relevant part, that “defense counsel’s failure to advise [the defendant] of the deportation consequence of his guilty plea was constitutionally deficient,]” and that, “based on the record developed at the postconviction hearing and the court’s express finding on the subject, [] counsel’s deficient performance prejudiced [the defendant].” 9 In other words, in Denisyuk, 422 Md. at 466, 489 , 30 A.3d at 916, 930 , applying Padilla , this Court determined that a defendant’s counsel rendered ineffective assistance where the defendant’s counsel failed to advise the defendant whatsoever of the immigration consequences of his guilty plea. In Denisyuk, 422 Md. at 466-67 , 30 A.3d at 916 , the defendant, a noncitizen, pleaded guilty to second-degree assault pursuant to a plea agreement. At the guilty plea proceeding, neither defense counsel, the State, nor the trial court advised the defendant of the immigration consequences of the plea. See id. at 467 , 30 A.3d at 917 .

Later, the defendant filed a petition for post-conviction relief, alleging that the guilty plea was involuntary because he was not advised of the potential immigration consequences of the plea and that defense counsel’s failure to advise him of the potential immigration conse ⁶⁸⁹ quences of the plea constituted ineffective assistance of counsel. See id. at 467 , 30 A.3d at 917 . In an affidavit submitted to the trial court, the defendant averred that, had he been advised of the immigration consequences of the plea, he would have rejected the plea offer and proceeded to trial. See id. at 467 , 30 A.3d at 917 .

The trial court granted the petition for post-conviction relief, and the State thereafter filed an application for leave to appeal, which was granted. See id. at 468 , 30 A.3d at 917-18 . The Court of Special Appeals reversed the grant of post-conviction relief. See id. at 468 , 30 A.3d at 918 .

This Court then granted certiorari. See id. at 469, 30 A.3d at 918 . After concluding that Padilla applied, this Court held that the defendant’s counsel “was obligated, but failed, to provide advice on the deportation consequences of [the defendant]^ plea, [and] that [the defendant’s trial counsel’s performance was constitutionally deficient.” Id. at 482 , 30 A.3d at 925 . We concluded that the first prong of Strickland was satisfied because, “by application of Padilla , [the defendant’s counsel’s performance was deficient because it fell below the standard of prevailing professional norms.” Id. at 485 , 30 A.3d at 927 .

As to the second prong of Strickland — whether the defendant was prejudiced by his counsel’s deficient performance — we determined that the defendant had satisfied that prong as well. See id. at 489, 30 A.3d at 930 . We explained that, because the defendant’s “sworn statement that he would have opted to go to trial if he had known of the likelihood of deportation, which was credited by the court, had he received the advice required by Padilla , he would have opted to go to trial[,]” the defendant had satisfied the second prong of Strickland, i.e., demonstrated that he was prejudiced by “his counsel’s deficient performance.” Id. at 489 , 30 A.3d at 930 . Accordingly, because the defendant had satisfied both prongs of Strickland and thus demonstrated that his counsel had provided ineffective assistance, we agreed with the trial court that the defendant should be granted a new trial.

See id. at 489, 30 A.3d at 930 . ⁶⁹⁰ Authority from Other Jurisdictions Similarly, courts in other jurisdictions have held that a defendant’s counsel’s performance was constitutionally deficient where the defendant’s counsel either failed to advise the defendant whatsoever of the immigration consequences of the defendant’s guilty plea, or affirmatively misadvised the defendant about the immigration consequences of the defendant’s guilty plea. For example, in United States v. Bonilla, 637 F.3d 980, 981 (9th Cir.2011), the Ninth Circuit held that the trial court abused its discretion in denying the defendant’s motion to withdraw his guilty plea where, after entering his guilty plea, the defendant “was for the first time informed that he would be deported on the basis of his plea[.]” In Bonilla, id., the defendant, a native of Mexico, was charged by indictment with possessing an unregistered firearm and being a felon in possession of a firearm. After the indictment, the defendant’s wife contacted an investigator with the Federal Public Defender’s Office to ask whether the defendant could possibly be deported as a result of the charges; the investigator told the defendant’s wife to contact the defendant’s counsel; the defendant’s wife then asked the defendant’s counsel whether the defendant could possibly be deported if he pleaded guilty, and the defendant’s counsel told the wife “that she would look into the matter but never did, and failed to provide any information about immigration consequences to [the defendant] or his wife prior to the plea hearing.” Id. at 981-82 . The defendant pleaded guilty to both charges.

See id. at 982 . Afterwards, the defendant’s wife again asked the defendant’s counsel about the immigration consequences of the guilty plea. See id. Several days later, the defendant’s counsel advised the defendant’s wife that, as a result of the guilty plea, the defendant would be deported after serving his sentence; the defendant’s counsel explained that she had mistakenly believed that the defendant was a United States citizen.

See id. The defendant later moved to withdraw his guilty plea; the trial court denied the motion; and the defendant appealed. See id. at 982-83 . ⁶⁹¹ The Ninth Circuit explained that it was undisputed that the defendant “received ‘inadequate legal advice’ about the immigration consequences of his plea” because, in actuality, the defendant “received no advice about immigration consequences before entering his plea, only learning afterward that pleading guilty would almost certainly result in deportation.” Id. at 984 (emphasis in original) (citations omitted). The Ninth Circuit stated that “[a] criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.” Id.

(emphasis in original) (citation omitted). And, under the circumstances of the case, the Ninth Circuit determined that, because the defendant’s wife had inquired of counsel the immigration consequences and had been provided no information prior to the defendant pleading guilty, the defendant could reasonably “have inferred that he likely would not be deported if he pled[.]” Id. Indeed, according to the Ninth Circuit, “a reasonable person in [the defendantj’s position could well have interpreted his lawyer’s silence to mean that pleading guilty would not place him in jeopardy of deportation[.]” Id. at 984-85 . The Ninth Circuit concluded that, although the defendant may have been aware prior to pleading guilty “about the possibility that there might be a reason not to plead to the indictment, because of his lawyer’s failure to answer his wife’s question he did not know whether that possibility was likely to have any real consequences.” Id. at 985 (emphasis in original).

Indeed, it was only after pleading guilty that the defendant learned “that the plea would in fact make his deportation virtually certain.” Id. Under those circumstances, the Ninth Circuit held that the trial court abused its discretion in denying the defendant’s motion to withdraw his plea. See id. at 986 . In a similar vein, in United States v. Akinsade, 686 F.3d 248, 250 (4th Cir.2012), the Fourth Circuit reversed the trial court’s denial of the defendant’s petition for writ of error coram nobis where the defendant’s counsel affirmatively misadvised the defendant that he would not be deported.

In ⁶⁹² Akinsade, id., the defendant, a native of Nigeria who became a lawful permanent resident, was charged with embezzlement by a bank employee. The defendant asked his counsel on at least two occasions about the potential immigration consequences of a guilty plea. See id. On each occasion, contrary to the law at that time, the defendant’s counsel “misadvised him that he could not be deported based on th[e] single offense” and “that he could only be deported if he had two felony convictions.” Id.

Relying on that misadvice, the defendant pleaded guilty pursuant to a plea agreement, which did not mention that deportation was mandatory or possible due to the offense. See id. During the plea proceeding, the trial court reviewed the consequences of the plea, including that, “if you are not a citizen, you could be deported.” Id. The defendant said that he understood and affirmatively stated that he still wished to plead guilty.

See id. Years later, while under the threat of deportation, the defendant filed a petition for writ of error coram nobis, alleging ineffective assistance of counsel based on his counsel’s misadvice. See id. at 251 . Although holding that the defendant’s counsel’s affirmative misadvice rendered his assistance constitutionally deficient, the trial court denied the petition, concluding that the defendant was not prejudiced.

See id. The defendant appealed. See id. The Fourth Circuit focused its analysis on “the merits of [the defendant]^ ineffective assistance of counsel claim to decide whether [the defendant] ha[d] been prejudiced.” Id. at 253 (citation omitted).

As to that point, the Fourth Circuit acknowledged that “[a] defendant may be unable to show prejudice if at the [plea] proceeding the [trial] court provides an admonishment that corrects the misadvice and the defendant expresses that he [or she] understands the admonishment.” Id. (citations omitted). The Fourth Circuit concluded that the trial court’s admonishment was insufficient to correct the defendant’s counsel’s misadvice that the crime was not a deportable offense because it was not “a careful explanation of the consequences of deportation” and instead simply “warned that [the defendant’s plea coidd lead to deportation.” Id. at ⁶⁹³ 254 (emphasis in original) (internal quotation marks omitted). The Fourth Circuit concluded “that counsel’s affirmative misrepresentations that the crime at issue was non-deportable prejudiced” the defendant because the record demonstrated that, but for the misadvice, the defendant would not have pleaded guilty.

Id. at 256 . Because the defendant had demonstrated prejudice, the Fourth Circuit concluded that he “also demonstrated that he ha[d] suffered a fundamental error necessitating coram nobis relief.” Id. In the wake of Padilla , courts in various other jurisdictions also have addressed the extent of Padilla’s holding and have grappled with whether counsel’s use of qualifying words when advising a defendant about immigration consequences — as opposed to counsel’s failing altogether to advise or affirmatively misadvising — renders that counsel’s performance constitutionally deficient under Strickland . For example, in United States v. Rodriguez-Vega, 797 F.3d 781, 784, 788 (9th Cir.2015), the Ninth Circuit held that the trial court “err[ed] in failing to hold that ... [the defendant’s counsel’s assistance was ineffective” where the defendant’s counsel “never informed [the defendant before she pleaded guilty] that she faced anything more than the mere ‘potential’ of removal.” In Rodriguez-Vega, id. at 784, the defendant, a native of Mexico who became a legal permanent resident of the United States, was charged with the felony of attempted transportation of illegal aliens and aiding and abetting.

The defendant’s counsel initially presented the defendant with a plea agreement requiring the defendant “to stipulate to removal following her criminal sentence”; the defendant rejected the plea agreement. Id. at 784-85 . The defendant’s counsel then presented a revised plea agreement that did not include the stipulation for removal, and instead included a provision entitled “Immigration Consequences,” which stated, in pertinent part: Defendant recognizes that pleading guilty may have consequences with respect to her immigration status if she is not a citizen of the United States____Defendant nevertheless affirms that she wants to plead guilty regardless of any immigration consequences that [her] plea may entail, even if ⁶⁹⁴ the consequence is [her] automatic removal from the United States. Id. at 785 (ellipsis in original).

The defendant thereafter pleaded guilty to the misdemeanor of attempted transportation of an illegal alien. See id. At the plea proceeding, the magistrate judge advised the defendant that “potentially [she] could be deported or removed, perhaps.” Id. (emphasis in original).

Later, at sentencing, the defendant’s counsel, while addressing the trial court, stated that “there is a high likelihood that [the defendant would] be deported. It’s still probably considered an aggravated felony for purposes of immigration law.” Id. (emphasis in original) (internal quotation marks omitted). The defendant later filed a petition to vacate her conviction “on the ground that her counsel provided ineffective assistance by failing to adequately advise her regarding the immigration consequences of her plea.” Id.

The defendant denied that her counsel had ever advised her that pleading guilty would cause her to be removed from the country. See id. The defendant’s counsel stated that he spoke with the defendant about the potential immigration consequences of pleading guilty, explained that there was the potential to be deported, and advised that “she had a better chance with Immigration with a misdemeanor than a felony.” Id. at 785-86 . The trial court denied the petition to vacate, and the defendant appealed.

See id. at 786 . On appeal, the Ninth Circuit held that the defendant’s “counsel was required to advise [the defendant] that her conviction rendered her removal virtually certain, or words to that effect[,]” explaining that, as in Padilla , “the immigration statute expressly identified the defendant’s conviction as a ground for removal[,]” and that her “conviction of a removable offense rendered the defendant’s] removal practically inevitable.” Rodriguez-Vega, 797 F.3d at 786 (citations and internal quotation marks omitted). The Ninth Circuit rejected various arguments in support of the contention that the defendant’s counsel’s performance was not constitutionally deficient. See id. at 786-87 .

For example, the Ninth Circuit stated that ⁶⁹⁵ the circumstance that the defendant may have “theoretically” been able to avoid removal under certain statutes, such as the family member exception for first-time offenders, by receiving withholding of removal, or by qualifying for relief under the Convention Against Torture, did “not alter [the] conclusion that on the record ... [the defendant’s] removal was virtually certain.” Id. (footnote omitted). The Ninth Circuit also determined that the defendant’s “counsel’s statements made after [the defendant] had already pled guilty, that she faced a ‘high likelihood’ of removal, [failed to] satisfy his duty to accurately advise his client of the removal consequences of a plea before she entered into it.” Id. at 787 (emphasis in original) (citations omitted). According to the Ninth Circuit, “had [the defendant] been properly and timely advised, [the defendant] could have instructed her counsel to attempt to negotiate a plea that would not result in her removal.” Id.

(citations omitted). The Ninth Circuit concluded that, “[b]e-cause the immigration consequences of [the defendant’s] plea were clear and her removal was virtually certain, ... counsel’s performance [was] constitutionally ineffective.” Id. at 788 (citation omitted). In State v. Favela, 311 P.3d 1213 , 1214 (N.M.Ct.App.2013), aff'd, 343 P.3d 178 (N.M.2015), the Court of Appeals of New Mexico held that the defendant’s counsel provided “deficient representation” where the defendant’s counsel stated at the plea proceeding that “more than likely [the defendant] will have a great consequence on his papers being taken away.” (Ellipsis omitted). In Favela, 311 P.3d at 1214, the defendant, a native of Mexico who became a legal permanent resident, pleaded guilty to four counts of aggravated battery with a deadly weapon and one count of driving under the influence.

At the plea proceeding, the trial court asked the defendant’s counsel whether there was “an immigration consequence” in the case. Id. The defendant’s counsel responded: “There will be. Defendant is here legal and everything, he has his paper documentation and everything, but more than likely he will have a great consequence on his papers being taken away.” Id.

(brackets and ellipsis omitted). Immediately thereafter, ⁶⁹⁶ the trial court addressed the defendant, stating: “I want to be sure you understand, as your attorney said, that a conviction will have an effect on your immigration status and that effect would be deportation, which is now called removal, exclusion from the United States and denial of naturalization under the laws of the United States. Do you understand[?]” Id. at 1214-15 (brackets omitted). In response, the defendant stated that he understood and that he still desired to plead guilty.

See id. at 1215. The trial court accepted the defendant’s guilty plea. See id. Later, the defendant filed a motion for relief or, alternatively, a petition for a writ of habeas corpus, which the trial court summarily denied.

See id. The defendant filed a motion for reconsideration, and the trial court conducted a hearing, after which the trial court denied the motion. See id. The defendant then appealed.

See id. On appeal, the Court of Appeals of New Mexico explained that, in a previous case, the Supreme Court of New Mexico had “clearly articulated what constitute^] effective assistance of counsel with respect to advising a criminal defendant of the immigration consequences of his or her plea.” Id. at 1218. Specifically, in Favela, id., the Court observed that, in State v. Paredez, 136 N.M. 533 , 101 P.3d 799, 805 (2004), the Supreme Court of New Mexico “held that ‘criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain.’ ” The Court further explained the holding of Paredez as follows: In so holding, our Supreme Court agreed with those jurisdictions that have held that an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is objectively unreasonable and went one step further in concluding that an attorney’s non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance.

According to our Supreme Court, advice that a defendant “could” or “might” be deported is also inadequate, as such advice is incomplete ⁶⁹⁷ and therefore inaccurate because stating that a person ‘may’ be subject to deportation implies there is some chance, potentially a good chance, that the person will not be deported. This Court has since interpreted Paredez as requiring a definite prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed in federal law for which a defendant can be deported. Favela, 311 P.3d at 1218 (citations, ellipsis, brackets, and some internal quotation marks omitted). The Court observed that, following Paredez , the Supreme Court decided Padilla and “similarly held that counsel must inform her client whether his plea carries a risk of deportation.” Favela, 311 P.3d at 1218 (citations and internal quotation marks omitted).

The Court noted, however, that the holding in Padilla , although “similar in nature to Paredez , was not as broad on the issue of what constitutes deficient representation.” Favela, 311 P.3d at 1218. Because Paredez was broader and contained no limitation, as in Padilla , distinguishing between where “the deportation consequence is truly clear” and where “the law is not succinct and straightforward[,]” the Court held that it was bound by Paredez. Favela, 311 P.3d at 1218 (citation omitted). The Court further held that, given the holding in Paredez , “a court’s warning or advisement to a defendant regarding possible immigration consequences of accepting a