                                                          REPORTED


                                           IN THE COURT OF SPECIAL APPEALS

                                                        OF MARYLAND

                                                            No. 1078

                                                     September Term, 2014


                                           JUAN CARLOS SANMARTIN PRADO

                                                               v.

                                                  STATE OF MARYLAND



                                                 Wright,
                                                  Arthur,
                                                 *Zarnoch, Robert A.,
                                                   (Retired, Specially Assigned),

                                                               JJ.



                                                      Opinion by Wright, J.


                                                Filed: October 2, 2015




*Zarnoch, Robert A., J., participated in the conference of this case while an active
member of this Court; he participated in the adoption of this opinion as a retired,
specially assigned member of this Court.
       This appeal arises from a petition for writ of error coram nobis filed by appellant,

Juan Carlos Sanmartin Prado (“Sanmartin Prado”), in the Circuit Court for Baltimore

County on October 21, 2013. The petition asserted that Sanmartin Prado received

ineffective assistance of counsel during his January 6, 2011 trial. Sanmartin Prado was

charged with second-degree child abuse. On January 28, 2014, a coram nobis hearing

was held, and on June 12, 2014, the circuit court denied the petition. Sanmartin Prado

filed this timely appeal.

       On appeal, Sanmartin Prado asks this Court to determine whether the circuit court

erred in denying the coram nobis petition by finding that he waived his right to a coram

nobis complaint, and whether he received ineffective assistance of counsel. For the

reasons explained below, we reverse and remand the case to the circuit court.

                                          FACTS

       On January 6, 2011, Sanmartin Prado, an Ecuadorian citizen and a legal

permanent resident of the United States, pled not guilty on an agreed statement of facts to

a charge of second-degree child abuse. Sanmartin Prado was found guilty and sentenced

to five years in prison, with all but two years suspended, and a two-year probation period

upon his release. He did not appeal the verdict.

       Sanmartin Prado has now been subjected to deportation as a result of his

conviction for the second-degree child abuse conviction.1 He alleges that he was not


       1
        Sanmartin Prado’s conviction constitutes an “aggravated felony” which is
defined as “a crime of violence . . . for which the term of imprisonment [is] at least one
year.” 8 U.S.C. §1101(a)(43)(F).
informed by his trial counsel of the immigration consequences of his conviction.

Sanmartin Prado claims that he first learned he would be deported when officers from

U.S. Immigration and Customs Enforcement (“I.C.E.”) came to arrest him six months

following the end of his probationary period.

       During the circuit court proceeding for the second-degree child abuse charge,2

Sanmartin Prado’s trial attorney asked whether it was correct that the two “have had

discussions with respect to [his] immigration status,” to which Sanmartin Prado

responded, “Yes, sir.” During the coram nobis hearing, the trial attorney testified that the

“discussions” took place on December 30, 2010, while Sanmartin Prado was in the

“detention center.” Sanmartin Prado’s trial attorney further testified that he “explained to



        Noncitizen United States residents convicted of an “aggravated felony” are
deportable “at any time after admission.” 8 U.S.C. § 1227(a)(2). Removal for these
noncitizens is prioritized “unless they qualify for asylum or another form of relief under
our laws, or . . . there are compelling and exceptional factors that clearly indicate the
alien is not a threat to national security.” Memorandum from Jeh Charles Johnson,
Secretary of the Department of Homeland Security on Policies for the Apprehension,
Detention and Removal of Undocumented Immigrants 3 (Nov. 20, 2014).
       2
        Md. Code (2002, 2012 Repl. Vol.), Criminal Law Article § 3-601. Child abuse.
                                         * * *
       (d) Second-degree child abuse.—(1) (i) A parent or other person who has
       permanent or temporary care or custody or responsibility for the
       supervision of a minor may not cause abuse to the minor.

       (ii) A household member or family member may not cause abuse to a
       minor:

       (2) except as provided in subsection (c) of this section, a person who
       violates paragraph (1) of this subsection is guilty of the felony of child
       abuse in the second degree and on conviction is subject to imprisonment
       not exceeding 15 years.
                                             2
[Sanmartin Prado] that there could and probably would be immigration consequences as a

result of the plea . . . that it was a deportable or possibly deportable offense.” Sanmartin

Prado alleged in his petition that this advisement was insufficient as to the potential

consequence of deportation resulting from his conviction and amounts to error

reviewable upon petition of writ of error coram nobis.

       In a written opinion, the circuit court found as a fact that trial counsel met with

Sanmartin Prado “at the Baltimore County Detention Center before trial and explained

the immigration consequences of a guilty verdict, including that the charge was a

‘deportable offense’ and Petitioner ‘could be deported . . . if the government chose to

initiate deportation proceedings,’ and it was ‘possible’ that Petitioner ‘would be

deported.’” The court went on to state that “[t]he Petitioner testified that his counsel

never told him he ‘would be deported,’ but acknowledged that he did have a conversation

with trial counsel regarding his immigration status.” The circuit court went on to rule

that “[u]pon consideration of the evidence to this Court as well as the record of the plea

hearing, the Court finds that the Petitioner has not rebutted the presumption that he

‘intelligently and knowingly’ failed to raise the allegation on appeal and Petitioner has

made no showing that special circumstances exist for his failure to make the allegation of

error on appeal.” This timely appeal followed.

                                       DISCUSSION

       The common law writ of error coram nobis was expanded in Maryland by Skok v.

State, 361 Md. 52, 78 (2000), to serve as “a remedy for a convicted person who is not

incarcerated and not on parole or probation, who is suddenly faced with a significant

                                              3
collateral consequence of his or her conviction, and who can legitimately challenge the

conviction on constitutional or fundamental grounds.” A “presumption of regularity

attaches to the criminal case,” and therefore, the coram nobis petitioner bears the burden

of proof. Id. at 78. This Court will not “disturb the factual findings of the post-

conviction court unless they are clearly erroneous.” Arrington v. State, 411 Md. 524, 551

(2009) (citation omitted). While reviewing for clear error, we will make an “independent

determination of relevant law and its application to the facts.” Id. (citing State v. Adams,

406 Md. 240, 255 (2008)).

       I. Waiver is no longer an appropriate basis for denying a coram nobis
petition.

       Md. Code (2002, 2012 Repl. Vol.), § 8-401 of the Criminal Procedure Article

(“CP”) states: “The failure to seek an appeal in a criminal case may not be construed as a

waiver of the right to file a petition for writ of error coram nobis.”3 The circuit court did

not cite nor rely on this statute in ruling that Sanmartin Prado waived his coram nobis

claim.4 A year after the circuit court’s denial of Sanmartin Prado’s petition, the Court of

Appeals decided State v. Smith, __ Md. __, No. 47, September Term, 2014 (July 13,

2015). In Smith, the Court of Appeals applied CP § 8-401 to similar facts and held that


       3
           This statute took effect October 1, 2012.
       4
         The circuit court relied primarily on Miller v. State, 435 Md. 174 (2013), which
addressed a permanent resident’s writ of error coram nobis for a conviction based upon
his guilty plea that he alleged was involuntary because he was not informed of the
immigration consequences of his actions. The court refused to recognize the petitioner’s
coram nobis complaint, reasoning that he “could have raised the implications of his not
been informed of the adverse immigration consequence of his plea by the trial court and
his attorneys.”
                                               4
the petitioner did not waive her coram nobis claim by failing to appeal her conviction or

file a petition for post-conviction relief. Id., slip op. at 1. Smith explicitly contradicts the

circuit court’s waiver ruling in Sanmartin Prado’s case.

       The Court of Appeals in Smith reasoned that the petitioner was entitled to the

benefit of CP § 8-401 because “the statute is both procedural and remedial and does not

impair any ‘vested right’ of the State.” Id. at 13. The Court further noted that petitioner

Smith satisfies the standard for coram nobis and is entitled to pursue her claim because

she:

              [S]tands convicted of a deportable offense; is not incarcerated; is not
              on parole or probation; and, “suddenly faced with a significant
              collateral consequence of [ ] her conviction, . . . can legitimately
              challenge the conviction on constitutional or fundamental grounds.”

Id. at 35 (citation omitted).

       The Smith Court states that upholding a coram nobis denial on waiver grounds

would “undermine completely the procedural benefit the General Assembly bestowed

upon the convicted defendants by its enactment of CP § 8-401.” Id. Accordingly, we

disagree with the circuit court on this procedural issue, reverse, and move on to the merits

of Sanmartin Prado’s appeal.

     II. The circuit court must determine whether Sanmartin Prado met his
burden of proof as to his ineffective assistance of counsel claim.

       As noted, supra, Sanmartin Prado bears the burden of proof on his coram nobis

complaint. Skok, supra, 361 Md. at 78. Sanmartin Prado alleges that he received

ineffective assistance of counsel because his trial attorney never advised him of the risk

of deportation in the event he was found guilty after proceeding with his trial on an

                                               5
agreed statement of facts. The standard for reviewing ineffective assistance of counsel is

set out in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), in the form of a two-

pronged analysis: (1) counsel’s representation must fall “below an objective standard of

reasonableness,” and (2) there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

       Sanmartin Prado’s ineffective assistance of counsel claim is grounded in Padilla v.

Kentucky, 559 U.S. 356 (2010). Padilla, a native of Honduras, had been a lawful

permanent resident of the United States for more than forty years and had served in the

United States Armed Forces during the Vietnam War. Padilla faced deportation after

pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in

the Commonwealth of Kentucky. The Supreme Court held in Padilla that, under the

Sixth Amendment, an attorney representing a noncitizen, in order to provide

constitutionally effective representation, must inform the noncitizen client of the risk of

deportation that follows a criminal conviction.5 Id. at 371.



       5
         Padilla involves a petitioner who pled guilty to a charge, as do many cases
arising from Sixth Amendment ineffective assistance of counsel claims for subsequent
deportation proceedings following criminal convictions. E.g., Denisyuk v. State, 422 Md.
462 (2011); Guardado v. State, 218 Md. App. 640 (2014).

        Sanmartin Prado’s case involves a not guilty plea to an agreed statement of facts.
He relies on Padilla because he avers that he would have not proceeded with the trial on
an agreed statement of facts had he known the consequences of the conviction. We agree
that in this case Sanmartin Prado’s plea, by way of an agreed statement of facts, was
equivalent to a guilty plea. The proceedings were in no sense a trial and offered no
reasonable chance that there would be an acquittal. Sutton v. State, 289 Md. 359, 367
(1981).

                                              6
       After examining the critical changes in immigration law over recent decades,6 the

Padilla Court noted that “if a noncitizen has committed a removable offense after the

1996 effective decreed date of these amendments, his removal is practically inevitable.”

Padilla, 559 U.S. at 363-64. Subsequently, professional norms of the legal profession

changed to include “the deportation consequence” of a criminal conviction.7 Id. at 372.

Because the first prong of the Strickland analysis instructs that the “proper measure of

attorney performance remains simply reasonableness under prevailing professional

norms,” Strickland, 466 U.S. at 688, then a noncitizen criminal defendant’s Sixth

Amendment right to effective assistance of counsel requires advice on the risk of

deportation. Id. at 363-64; see also, e.g., Denisyuk v. State, 422 Md. 462 (2011)

(applying Padilla in Maryland).

       Courts have granted writs of error coram nobis and vacated a petitioner’s

conviction based on ineffective assistance of counsel claims where the attorney

misadvised or failed to advise petitioner on the potential immigration consequences of his

guilty plea. In United States v. Akinsade, 686 F.3d 248, 256 (4th Cir. 2012), the Fourth

Circuit found that petitioner Akinsade “suffered a fundamental error necessitating coram


       6
         Padilla recounted the following important recent changes in immigration law:
First, Congress eliminated the judicial recommendation against deportation (JRAD), a
form of judicial relief during sentencing for narcotics offenses. Padilla, 559 U.S. at 362
(referencing the Immigration Act of 1990). Second, in 1996, Congress removed “the
Attorney General’s authority to grant discretionary relief from deportation” to immigrants
convicted of aggravated felonies. Id. at 363.
       7
        The Supreme Court explained 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, 559 U.S. at 373 (citation omitted).
                                             7
nobis relief.” Akinsade had asked his attorney on multiple occasions “about the potential

immigration consequences of a guilty plea” and each time “his attorney misadvised him

that he could not be deported based on [his] offense,” giving him advice “contrary to the

law at that time.” Id. at 250. In Denisyuk, the Court of Appeals determined that counsel

for petitioner Denisyuk, a 31-year old Latvian citizen who immigrated to the United

States at the age of fourteen, performed deficiently by failing to advise Denisyuk of the

deportation consequences of his guilty plea. 422 Md. at 485; see also United States v.

Kayode, 777 F.3d 719, 723 (5th Cir. 2014) (explaining that defense counsel provided

deficient assistance by failing to inform defendant of deportation risk associated with

guilty plea); United States v. Rodriguez-Vega, __ F.3d __, No. 13-56415 (9th Cir. Aug.

14, 2015) (reasoning that “counsel’s statements made after [petitioner] had already pled

guilty, that she faced a “high likelihood” of removal, [do not] satisfy his duty to

accurately advise his client of the removal consequences of a plea before she enters into

it).

       The Padilla Court emphasizes that it is now “quintessentially the duty of counsel

to provide [a] client with available advice about an issue like deportation and the failure

to do so ‘clearly satisfies the first prong of the Strickland analysis.’” Padilla, 559 U.S. at

363-64 (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985)). Advising a client about

immigration consequences requires informing him that a conviction renders him

“deportable.” This is sufficient to explain that a conviction results in action by I.C.E. that

would place the individual into immigration proceedings. Statements that qualify

“deportable,” such as “possibly deportable” or “may be deportable,” are inadequate

                                              8
advice as to immigration consequences because they suggest the discretion of the federal

government in initiating immigration proceedings against a convicted noncitizen, which a

trial attorney is in no position to determine. The Padilla Court highlights that, under

current immigration law, “if a noncitizen has committed a removable offense . . . his

removal is practically inevitable.” Id. at 363-64. Thus, if the defendant committed a

deportable crime, 8 he is, at the moment of conviction, automatically deportable.9 At the

time a trial attorney is advising his client of the immigration consequences of his

conviction, any subsequent discretion the federal government may exercise in pursuing

immigration proceedings or any defenses the client may have against deportation are not

pertinent. The likelihood of deportation is relevant if and when deportation proceedings

begin.10 Therefore, in order to unequivocally inform his client of the immigration



       8
        8 U.S.C. § 1227(a)(2) defines the classes of “Deportable Aliens” for particular
criminal offenses. See also note 1, supra.
       9
         Deportation is “the compulsory removal of ‘aliens’ from the physical, juridical,
and social space of the state[.]” THE DEPORTATION REGIME: SOVEREIGNTY, SPACE, AND
THE FREEDOM OF MOVEMENT 1 (Nicholas De Genova & Nathalie Peutz eds., 2010). The
word “deportation” is a term of art that is used exclusively throughout the Immigration
and Naturalization Act, 8 U.S.C. §§ 1101-1537, to refer to the removal of a noncitizen
residing within the United States. Using the word “deportable,” therefore, is critical in
explaining immigration consequences to a noncitizen defendant.
       10
           Congress has allocated the authority and discretion to initiate deportation
proceedings against noncitizens convicted of aggravated felonies to the United States
Attorney General. It has dictated specifically that “the Attorney General shall provide for
the initiation and, to the extent possible, the completion of removal proceedings, and any
administrative appeals thereof, in the case of any alien convicted of an aggravated felony
before the alien's release from incarceration for the underlying aggravated felony.” 8
U.S.C. § 1228(a)(3)(A).

                                             9
consequences of his conviction, a trial attorney need only tell his client that he is

“deportable” without qualification. This is especially important when a defendant

accepts a plea bargain. As explained in Padilla:

       [I]nformed consideration of possible deportation can only benefit both the
       State and noncitizen defendants during the plea-bargaining process. By
       bringing deportation consequences into this process, the defense and
       prosecution may well be able to reach agreements that better satisfy the
       interests of both parties.

Hernandez-Cruz v. Holder, 651 F.3d 1094, 1111 (9th Cir. 2011), (citing Padilla, 559

U.S. at 373).

       During the coram nobis hearing, Sanmartin Prado’s trial attorney testified that he

had explained to Sanmartin Prado while he was detained that there “could and probably

would be immigration consequences” from the conviction, “but that . . . immigration is a

moving target[.]” The trial attorney testified further that he explained to Sanmartin Prado

that second-degree child abuse “was a deportable offense and he could be deported if the

federal government chooses to deport him” or that if the “federal government chooses to .

. . initiate deportation proceedings.” (Emphasis added).

       During the trial, the circuit court asked Sanmartin Prado’s attorney to “advise Mr.

Sanmartin Prado of the rights that he is waiving by proceeding” with an agreed statement



        Once deportation proceedings have been initiated and the noncitizen has been
“charged with any applicable ground . . . of deportability,” 8 U.S.C. § 1228(a)(3)(A), the
immigration judge “shall decide whether an alien is removable from the United States.
The determination of the immigration judge shall be based only on the evidence produced
at the hearing.” 8 U.S.C. § 1228(c)(1)(A).


                                              10
of facts. His trial attorney then asked Sanmartin Prado to confirm that the two had had

“discussions with respect to [his] immigration status,” to which Sanmartin Prado

responded, “Yes, sir.” The trial attorney further remarked that neither he nor the judge

was “making any promises about what the federal government could possibly do in the

future with respect to reviewing this conviction.” Sanmartin Prado confirmed this

statement as well.

       What the circuit court stated in its written opinion bears repeating:

       Petitioner’s trial counsel testified, and the Court finds as a fact that [trial
       counsel] met with Petitioner at the Baltimore County Detention Center
       before trial and explained the immigration consequences of a guilty verdict,
       including that the charge was a ‘deportable offense’ and Petitioner ‘could be
       deported . . . if the government chose to initiate deportation proceedings,’
       and it was ‘possible’ that Petitioner ‘would be deported.’ The Petitioner
       testified that his counsel never told him he ‘would be deported,’ but
       acknowledged that he did have a conversation with trial counsel regarding
       his immigration status.

       Upon consideration of the evidence to this Court as well as the record of the
       plea hearing, the Court finds that the Petitioner has not rebutted the
       presumption that he ‘intelligently and knowingly’ failed to raise the allegation
       on appeal and Petitioner has made no showing that special circumstances exist
       for his failure to make the allegation of error on appeal.

       Based on the circuit court’s brief recitation of its findings on the merits, it is

unclear whether the court came to a resolution of the disputed facts. The one paragraph

contains the thrust of each side and paraphrases the testimony before the circuit court and

at the original hearing. This may well have been because the court was not relying on a

finding on the merits to resolve the case.

       It appears that the circuit court denied the coram nobis petition, but declined to

address the merits of his claims. Before this Court, Sanmartin Prado raises the same

                                              11
issue that he raised in the circuit court; therefore, despite the circuit court’s avoidance of

that issue, it is properly before us. Stevenson v. State, 180 Md. App. 440, 447 (2008)

(citing Md. Rule 8-131(a) (generally, an appellate court will not decide issues not “raised

in or decided by the trial court”)).

       In light of the total evidence taken below, we can only conclude that trial counsel

qualified his statements to Sanmartin Prado as to whether a conviction would render him

deportable. The Padilla Court emphasizes that it is now “quintessentially the duty of

counsel to provide [a] client with available advice about an issue like deportation and the

failure to do so ‘clearly satisfies the first prong of the Strickland analysis.” Padilla, 559

U.S. at 363-64 (quoting Hill, 474 U.S. at 62).

       Here, Sanmartin Prado established that his trial counsel did not provide him with

the correct “available advice” about the deportation risk. Taken as a whole, the advice

was sometimes conflicting. In fact, at the end of the State’s cross-examination, trial

counsel agreed that he told Sanmartin Prado that deportation, as a result of this case, was

“possible.” Sanmartin Prado’s trial attorney’s conduct “[fell] below an objective standard

of reasonableness,” and did not meet the prevailing professional norms of most criminal

attorneys. Denisyuk, 422 Md. at 481 (citing Padilla).

       Because Sanmartin Prado has proven the first prong of the Strickland analysis, we

remand the case to the circuit court to reach the second prong, as to whether there is a

reasonable probability that, but for trial counsel’s unprofessional errors, the result of the

proceedings would have been different. Strickland, 466 U.S. at 694.



                                              12
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE COUNTY IS REVERSED AND
THE CASE IS REMANDED FOR
PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION. COSTS TO BE DIVIDED
EQUALLY BETWEEN THE PARTIES.




     13
