A criminal arrest is a serious matter. Whether the underlying alleged crime is a felony or a misdemeanor, the consequences of a conviction can negatively affect a person’s life in many ways, including potential jail time and a lasting criminal record. There are many defenses one may be able to assert, depending on the circumstances surrounding the arrest. Keep in mind that citizens are entitled to the protections of the Constitution, including the right to be free from an illegal search and seizure, and the right to the effective assistance of counsel. Anyone arrested or charged with a crime is encouraged to consult with an experienced Maryland criminal defense attorney as soon as possible.
A recent Maryland case addressed one man’s right to the effective assistance of counsel in a second-degree child abuse case. Here, the defendant was an Ecuadorian citizen and a legal, permanent resident of the United States. The trial court found him guilty of the charges and sentenced him to five years in prison. He did not appeal the court’s verdict. Six months after the end of his probationary period, the U.S. Immigration and Customs Enforcement came to arrest the defendant. He was deemed to be subject to deportation as a result of his conviction for second-degree child abuse.
The defendant filed a petition for writ of error coram nobis, a remedy invoked by a person who has been convicted, who is not incarcerated and not on probation or parole, who is faced with a significant collateral consequence of the conviction, and who is able to legitimately challenge that conviction on fundamental or constitutional grounds. As the basis for this petition, the defendant claimed that he received ineffective assistance of counsel, alleging that his attorney did not inform him that second-degree child abuse was a “deportable offense.” The circuit court denied the petition. The defendant appealed.
The court of special appeals looked at the following criteria for determining whether a defendant received ineffective assistance of counsel: 1) counsel’s representation must fall below an objective standard of reasonableness; and 2) there must be a reasonable probability that, without counsel’s unprofessional errors, the proceeding would have turned out differently. Under applicable case law, the court pointed out that a noncitizen criminal defendant’s Sixth Amendment right to effective assistance of counsel requires advice on the risk of deportation.
The court here found that, based on the law in Maryland, in order for the trial attorney to have unequivocally informed the defendant of the immigration consequences of his conviction, the attorney needed to tell him that he is “deportable” without qualification. Here, the trial attorney testified that he told his client that there “could and probably would be immigration consequences” from the conviction. Essentially, counsel told his client that second-degree child abuse was possibly a deportable offense, and he could be deported if the government took those steps.
The court of special appeals reversed the circuit court’s decision, concluding that under the applicable case law, the defendant’s attorney did not provide the correct advice about his deportation risk, and therefore his conduct fell below an objective standard of reasonableness. The decision in this case exemplifies the strong need to consult with an experienced and seasoned criminal defense attorney in any criminal case. Anthony A. Fatemi has extensive experience handling criminal defense cases throughout Maryland. Our office can work diligently to develop a strong strategy to defend your case. Contact us at 301-519-2801 or via our online form.
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