In an impressively well-reasoned decision, the Maryland Court of Appeals, the state’s highest court, held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions entered after April 1, 1997. Denisyuk v. State, No. 45, slip op. (Md. Oct. 25, 2011) (Bell, Harrell, Barbera, Greene, JJ.). Justice Barbera wrote the majority’s opinion. Justice Battaglia wrote a dissenting opinion joined by Justice Murphy. Justice Adkins wrote separately in dissent.
This case involved a noncitizen who pleaded guilty to second degree assault on November 2, 2006. Denisyuk, No. 45, slip op. at 2. He did not appeal. Denisyuk, No. 45, slip op. at 2. Instead, over a year after he was convicted he filed a post-conviction relief (PCR) petition seeking to vacate the conviction and requesting a new trial on the bases that “(1) the plea was rendered involuntary by the omission of advice concerning the potential immigration consequences of the plea; and (2) the failure of defense counsel to advise him of those potential consequences of his conviction constituted ineffective assistance of counsel in violation of the Sixth Amendment.” Denisyuk, No. 45, slip op. at 2-3.
Though he initially won (at the post-conviction court) on the Sixth Amendment ineffective assistance of counsel argument, that court “ruled against Petitioner on his claim that the guilty plea was unknowing and involuntary.” Denisyuk, No. 45, slip op. at 4 n.4. On the state’s appeal to the state intermediate court, that court dismissed the PCR petition entirely two days before Padilla was issued. Denisyuk, No. 45, slip op. at 5.
Before the Court of Appeals the state argued that Padilla “announced a new rule of criminal procedure,” therefore it is “inapplicable to cases…on collateral review of a final judgment,” like Denisyuk’s. Denisyuk, No. 45, slip op. at 7.
The Court of Appeals disagreed.
The majority had little trouble determining that Padilla did not announce a new rule of criminal procedure. Relying on its earlier cases, the majority explained that “‘where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively,’ and it is only ‘where a new rule…constitutes a clear break with the past…’ that the question of prospective only application arises.” Denisyuk, No. 45, slip op. at 15 (quoting Potts v. State, 479 A.2d 1335, 1340 (Md. 1984)).
It then turned to the reasoning provided by other courts that have found Padilla to apply retroactively, notably United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), and Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011), both of which have been discussed on this blog (here and here). Padilla, the Maryland justices in the majority determined, simply applies the Supreme Court’s twenty-five year old ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), to a new set of facts. Denisyuk, No. 45, slip op. at 18.
Despite that the Padilla holding abrogated decisions of many state and federal courts, this, the Maryland court explained, is not sufficient to conclude that Padilla broke new ground. Rather, the Supreme Court in Padilla merely corrected a widespread error. “In essence, the Padilla Court’s decision is a recognition and correction of an error on the part of many courts that for many years had prevented them from applying the Strickland analysis to factual situations like those presented in Padilla’s, and Petitioner’s, cases.” Denisyuk, No. 45, slip op. at 21.
Accordingly, the Maryland court explained, “We agree with our sister courts in the Third Circuit, Massachusetts, Illinois, Minnesota, and Texas that Strickland set forth a general standard for application to a specific set of facts; that decisions applying the Strickland standard do not establish a rule of prospective application only; and that Padilla is an application of Strickland to a specific set of facts.” Denisyuk, No. 45, slip op. at 18.
Interestingly, as if to insulate its ruling from any future anti-retroactivity holding by the U.S. Supreme Court, the Maryland court explained that Maryland has never adopted the Supreme Court’s retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989). Denisyuk, No. 45, slip op. at 17 n.8. “Thus, even if the Supreme Court were to hold that Padilla is not retroactive under Teague, that holding would have no adverse effect on our analysis here.” Denisyuk, No. 45, slip op. at 17 n.8.
Though the court concluded that Padilla applies retroactively, it did impose a limitation on how far back retroactivity reaches. “We conclude…that the holding in Padilla…applies retroactively to all cases arising out of convictions based on guilty pleas that occurred after April 1, 1997, the effective date of the enactment of the IIRAIRA.” Denisyuk, No. 45, slip op. at 15.
The court explained that it chose this date based on the Padilla Court’s explanation that “[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.” Padilla, 130 S. Ct. at 1485. In the Maryland court’s view, “That 15-year span approximately matches the time period following the 1996 amendments to federal immigration law that made deportation ‘practically inevitable’ for noncitizens convicted of removable offenses.” Denisyuk, No. 45, slip op. at 18.
While I find this conclusion reasonable based on Padilla’s language, it strikes me that the Padilla Court placed much emphasis on the repeal of former INA § 212(c) and judicial recommendations against deportation (JRAD). Padilla, 130 S. Ct. at 1480. While § 212(c) was repealed in 1996, its demise started in 1990. Moreover, JRADs were repealed in 1990. It would, I think, be possible to extend Padilla’s reference to “at least the past 15 years” to 1990 given how much the Court emphasizes the repeal of § 212(c) and JRADs in its discussion of the increasing interconnectedness of criminal and immigration proceedings that have made deportation “practically inevitable” for many people convicted of crimes.
Having concluded that Padilla applies retroactively to Denisyuk’s conviction, it then turned to Strickland’s two-pronged test for ineffective assistance of counsel: whether his attorney was deficient and, if so, whether that deficient performance actually prejudiced Denisyuk.
It had no difficulty determining that Denisyuk’s attorney was deficient. “Because, under Padilla, Petitioner’s trial counsel was obligated, but failed, to provide advice on the deportation consequences of Petitioner’s plea, we hold that Petitioner’s trial counsel’s performance was constitutionally deficient.” Denisyuk, No. 45, slip op. at 19.
All that was left was to determine whether Denisyuk’s attorney’s deficient performance prejudiced Denisyuk. “To show prejudice, Strickland requires that a defendant demonstrate ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Denisyuk, No. 45, slip op. at 23 (quoting Strickland, 466 U.S. at 694).
“This Court has interpreted the ‘reasonable probability’ language of Strickland to mean a ‘substantial possibility’ that the result of the trial would have been different.” Denisyuk, No. 45, slip op. at 23 (quoting Williams v. State, 605 A.2d 103, 107 (Md. 1992)).
Rejecting the state’s argument that “the trial would have been different” requirement means Denisyuk must have shown that he would have received a shorter prison term or been charged with the same or fewer offenses had he gone to trial, the court explained that what matters is whether Denisyuk would have taken his chances at trial rather than enter a plea.
“The appropriate determination is not whether Petitioner ultimately would have been convicted following a trial, but rather whether there ‘is a reasonable probability that, but for counsel’s errors, [Petitioner] would not have pleaded guilty and would have insisted on going to trial.’” Denisyuk, No. 45, slip op. at 27 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
In concluding that Denisyuk would have turned down the plea and elected to go to trial, the court emphasized that “the post conviction court expressly credited Petitioner’s uncontroverted, sworn averment that, had defense counsel advised him of the plea consequence of deportation, he would not have entered into the plea.” Denisyuk, No. 45, slip op. at 25.
Taking his chances at trial, the court added, would be reasonable for someone whose principal goal is to avoid deportation. “We are not alone in understanding that many noncitizens might reasonably choose the possibility of avoiding deportation combined with the risk of a greater sentence over assured deportation combined with a lesser sentence.” Denisyuk, No. 45, slip op. at 26. Accordingly, the Maryland court determined that Denisyuk was prejudiced by his attorney’s deficient performance. Denisyuk, No. 45, slip op. at 27.
The dissenting opinion by Justice Battaglia took issue with the majority’s reliance on Denisyuk’s affidavit to conclude that he was prejudiced. Battagalia would instead require the trial court “to conduct an evidentiary hearing, beyond the admission of an affidavit, to determine whether an alien’s decision to reject a plea offer and proceed to trial ‘would have been rational under the circumstances.’” Denisyuk, No. 45, slip op. at 1 (Battaglia, J., dissenting) (quoting Padilla, 130 S. Ct. at 1485).
Among the circumstances that Battaglia would require the trial court to consider in determining whether Denisyuk’s decision to go to trial would have been rational are prior criminal history, “[w]hether an individual is documented,” whether “conviction at trial was very probable,” “[w]hether the benefit obtained from the guilty plea was substantial,” whether “[c]urative judicial admonishments” were given,” as well as “other objective indicia” that would favor the noncitizen. Denisyuk, No. 45, slip op. at 1-4 (Battaglia, J., dissenting).
Justice Adkins’ dissenting opinion disagreed more fundamentally with the majority, as well as with the Battaglia dissent. In Adkins’ view, Padilla “created a new rule, not applicable retroactively.” Denisyuk, No. 45, slip op. at 2 (Adkins, J., dissenting).