If you are a noncitizen immigrant, you should be aware that there may be adverse immigration consequences, such as deportation, for pleading guilty or being convicted of a crime in Maryland and other states. In a recent appellate case, a native of Belize who was a permanent resident in the United States pled guilty to cocaine possession with intent to distribute. He was sentenced to five years in prison.
During his sentencing, the defendant was informed that he had the right to appeal his conviction. He did not appeal, nor did he file a petition for post-conviction relief, and served out his five-year sentence.
Afterward, he traveled to Belize and was detained when he tried to reenter the United States. The United States Department of Immigration and Customs Enforcement (ICE) started a deportation proceeding against him. To delay deportation, he filed a Petition for a Writ of Error Coram Nobis. He claimed in the petition that his guilty plea was not knowing and voluntary because his attorney had not advised him of possible immigration consequences of his plea.
The judge hearing the petition accepted the transcript of the guilty plea proceeding, which showed the defendant hadn’t been informed of the potential immigration consequences. The defendant testified as to the same. The judge denied the petition, however, explaining that only the “direct” consequences of the plea had to be told to the defendant. “Indirect” consequences like deportation did not.
The defendant appealed. While the appeal was pending, the United States Supreme Court held in another case that a competent attorney would inform his client that a drug distribution conviction would subject him to automatic deportation. A criminal defense attorney’s failure to inform the client of this would fall below the standard of reasonableness as a professional, though the question of whether it prejudiced the client was a separate issue.
The Court of Special Appeals in this case determined that the Supreme Court case didn’t retroactively apply. It found that it was a new rule that broke new ground. The defendant asked the Court of Appeals to review the question of whether the Supreme Court decision should be applied retroactively to cases that were finalized before the decision.
The Court of Appeals explained that it had already decided the Supreme Court’s decision did not overrule prior law and create a new law. Rather, it applied settled precedent to a new set of facts. Accordingly, it had ruled the Supreme Court’s decision was to be applied retroactively. However, a number of other courts had ruled differently.
The Court of Appeals granted the defendant’s petition for certiorari and asked the Court of Special Appeals to reconsider. However, the Court of Special Appeals once again affirmed the denial of the defendant’s petition on the grounds that he raised the issue of voluntary plea, but not the ineffective assistance of counsel argument.
The United States Supreme Court next heard a case specifically on point, which answered the question of whether the case had effect retroactively. Again the Maryland Court of Appeals agreed to review.
The State argued that by failing to file an application for leave to appeal from a guilty plea, the defendant waived the right to file a coram nobis petition.
The appellate court explained that the Maryland Rules of Court that were in effect at the time of the defendant’s sentencing required a defense attorney to advise a noncitizen defendant entering a guilty plea of the possibility of deportation. However, failing to advise of collateral consequences didn’t automatically invalidate a guilty plea at that time. The appellate court concluded there was no redress for the defendant in this case.
If you are arrested or charged with a crime, you should call a knowledgeable Maryland criminal defense attorney. Because our office has experience in family and immigration law, too, we can incorporate counsel regarding collateral consequences into a strategy to defend your criminal case. Contact us at 301-519-2801 or via our online form.
The Impact of a Defendant’s Signed Statement in Maryland, Maryland Criminal Lawyer Blog, October 12, 2013
Reasonable Grounds for Requiring a Blood Test in Maryland, Maryland Criminal Lawyer Blog, September 25, 2013