              REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND




                No. 2232

         September Term, 2011




      MIGUEZ A. GUARDADO

                    v.

       STATE OF MARYLAND




   Krauser, C.J.,
   Zarnoch,
   Kehoe,


                    JJ.


         Opinion by Kehoe, J.




        Filed: August 27, 2014
       Miguez A. Guardado1 appeals from a judgment of the Circuit Court for Anne Arundel

County denying his petition for a writ of error coram nobis. He presents three issues which

we have reworded slightly:

       1.       Whether the circuit court erred in holding that claims of ineffective
                assistance of counsel based on Strickland v. Washington, 466 U.S. 668
                (1984), were not cognizable claims in coram nobis proceedings?

       2.       Whether the circuit court failed to apply the correct prejudice standard
                to the appellant’s Strickland ineffective assistance of counsel claim?

       3.       Whether the circuit court erred in holding that the trial court’s
                collateral consequences advisements pursuant to Maryland Rule 4-
                242(e) could “cure” what would otherwise be ineffective assistance of
                counsel at a guilty plea proceeding?

       We are satisfied that the circuit court reached the correct result. Therefore, we will

affirm its judgment, although our reasoning differs from that of the court. See Offutt v.

Montgomery County Bd. of Educ., 285 Md. 557, 564 n.4 (1979) (“[A]n appellate court may

affirm a trial court’s decision on any ground adequately shown by the record.”).

                                         Background

       On May 7, 2008, in the Circuit Court for Anne Arundel County, Guardado pled guilty

to conspiracy to commit theft over $500. Guardado was represented by counsel during the

guilty plea proceeding. The court accepted his plea and sentenced Guardado to

imprisonment for one year with all but two days suspended, subject to one year of

supervised probation and Guardado’s payment of restitution to the victim.

       While receiving Guardado’s plea, in relevant part, the circuit court advised Guardado


      1
          In his brief, Mr. Guardado asserts that his first name is Miguel.
as follows:

       The Court:            I am not asking about your citizenship, but I am telling
                             you [that] if you are not a United States citizen[,] this
                             case may affect your status in this country. This case may
                             lead to other consequences such as deportation. If you
                             have concerns in that area you should speak to your
                             attorney before entering this guilty plea. Do you
                             understand that?

       [Guardado]:           Yes.

       After the court’s advisement, Guardado did not request an opportunity to confer with

his counsel before entering the guilty plea. Guardado neither filed a motion to withdraw the

plea pursuant to Maryland Rule 4-242(f)2 nor filed an application for leave to appeal

pursuant to Md. Code Ann. (2006) § 12-302(e) of the Courts and Judicial Proceedings

Article and Maryland Rule 8-204.

       Thereafter, the United States Department of Homeland Security (“DHS”) initiated

removal proceedings against Guardado, asserting that he was subject to removal pursuant




       2
           Maryland Rule 4-242(f) provides:

       At any time before sentencing, the court may permit a defendant to
       withdraw a plea of guilty . . . when the withdrawal serves the interest of
       justice. After the imposition of sentence, on motion of a defendant filed
       within ten days, the court may set aside the judgment and permit the
       defendant to withdraw a plea of guilty . . . if the defendant establishes that
       the provisions of section (c) or (e) of this Rule were not complied with or
       there was a violation of a plea agreement entered into pursuant to Rule 4-
       243. The court shall hold a hearing on any timely motion to withdraw a
       plea of guilty . . . .
                                              2
to 8 U.S.C. § 1182(a)(6)(i).3 On May 5, 2011, Guardado was detained by United States

Immigration and Customs Enforcement (“ICE”) as a result of his guilty plea.4

       On July 13, 2011, Guardado, represented by different counsel, filed a petition for a

writ of error coram nobis pursuant to Maryland Rule 15-1202. He asserted that his

conspiracy conviction caused him to be detained by ICE and barred him from filing a

petition for asylum. Additionally, he claimed that his guilty plea was entered in violation of

the Sixth Amendment of the United States Constitution because his then-attorney had failed

to advise him about the immigration consequences of the plea. Guardado asserted that, had

he known of these consequences, he would not have pled guilty to the charge. He asked the

circuit court to vacate his conviction for these reasons.

       On November 2, 2011, the circuit court held a hearing on the petition for writ of

coram nobis. There were no live witnesses. The evidence presented to the court consisted

of: (1) a transcript of the guilty plea proceeding; (2) a stipulation that, had he been called to



       3
       The statute provides that an “[a]n alien present in the United States without being
admitted or paroled, or who arrives in the United States at any time or place other than as
designated by the Attorney General, is inadmissible.”
       4
        Guardado’s conviction of conspiracy to commit theft over $500 constituted a
conviction of an “aggravated felony” under the Immigration and Nationality Act, see 8
U.S.C. § 1101(a)(43)(G) and (U) (providing, in concert, that a conspiracy to commit “a
theft offense . . . for which [there is] a term of imprisonment [of] at least one year”
constitutes an “aggravated felony”). Persons convicted of aggravated felonies are subject
to detention by ICE. See 8 U.S.C. § 1226(c)(1)(B) (providing that “[t]he Attorney
General shall take into custody any alien who . . . is deportable by reason of having
committed any offense covered in section 1227(a)(2)(A) . . . (iii) [pertaining to
aggravated felonies]”).
                                               3
testify, Guardado’s guilty plea lawyer would have testified that, although he “generally told

his non-citizen criminal clients that they could be deported if they accepted a criminal plea,”

he did not “specifically remember talking to [Guardado] about the immigration

consequences of the plea”; and (3) an affidavit signed by Guardado. The affidavit stated in

pertinent part:

          [My] attorney told me to plead guilty, because he said there was no way I
          could go free. I was not told by my attorney about the consequences of my
          guilty plea.

                  At the hearing I was not told by either the prosecutor or the judge about
          the immigration consequences of a guilty plea. I therefore followed my
          attorney’s advice and pled guilty to the charges. I was given one year
          probation and spent a weekend in jail. Had I been told, given the fact that I
          was innocent and I had done nothing wrong; I would definitely not have pled
          guilty.

          The circuit court denied the petition. In a written opinion, the court expressed some

doubt as to whether a claim for ineffective assistance of counsel was cognizable in the

context of a petition for writ of error coram nobis.5 Resolving that issue in Guardado’s favor

for purposes of analysis, the court found that he had demonstrated ineffective assistance by

his guilty-plea counsel, but that he suffered no prejudice as a result. Specifically, the court

stated:

          Although Guardado was harmed by the unfortunate outcome of his guilty
          plea, it cannot be stated that he was “prejudiced” by a failure to advise him of
          the collateral consequences of his guilty plea. In fact, as was explained to him

          5
        The question was resolved in Miller v. State, 435 Md. 174, 198 (2013), which
indicates that assertions of ineffective assistance of counsel, at least in the context of
guilty pleas, are cognizable in a claim for writ of error coram nobis.
                                                 4
       [by the circuit court], his guilty plea had the very consequence he was warned
       about. He stated he understood that and wanted to accept the offered plea.

               Under Maryland Rule 4-242(e) the court, alone, is permitted to advise
       Guardado of the possible consequences of the plea. The trial judge did so. The
       advice given to Guardado comports with the requirements of the rule.
       Guardado was advised and chose to gamble with the collateral consequences
       of the guilty plea. He cannot now claim to have been uninformed, making his
       agreement to plead guilty involuntary and unknowing. Words spoken by the
       court have meaning and legal significance. They are not idle chatter to be
       easily disregarded by criminal defendants.

                                          Analysis

       Although a multitude of contentions are presented by the parties, we conclude that

this case turns on the retroactive applicability of the holding of Padilla v. Kentucky, 559

U.S. 356 (2010), to guilty pleas—such as Guardado’s—made prior to March 31, 2010 (the

date of the Padilla decision).6 The State contends that Guardado did not bring a cognizable

claim for ineffective assistance of counsel pursuant to Padilla in the context of his petition

for writ of error coram nobis. We agree. Our conclusion is based upon Judge Battaglia’s

       6
         Among the other contentions is the State’s argument that Guardado waived his
right to file a coram nobis petition by failing to file an application for leave to appeal
from his 2008 guilty plea. Compare Holmes v. State, 401 Md. 429, 445–46 (2007) (The
failure to file an application for leave to appeal creates a presumption of waiver that can
be rebutted by a showing of “special circumstances” excusing the failure to file an
application for leave to appeal.) with Miller v. State, 435 Md. 174, 188 (2013) (A
defendant’s failure to anticipate the Padilla decision is not a “special circumstance” for
the purposes of Holmes.). Apparently in reaction to the Holmes decision, the General
Assembly enacted § 8-401of the Criminal Procedure Article, effective October 1, 2012.
Section 8-401 provides that “[t]he 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.” The
statute was not before the Court in Miller. In Graves v. State, 215 Md. App. 339, 352
(2013), cert. granted, 437 Md. 637 (2014), this Court concluded that CP § 8-401
operates retroactively. The Court of Appeals has granted certiorari on this issue.
                                              5
plurality opinion in Miller v. State, 435 Md. 174 (2013).

       Nearly two years after Guardado pled guilty, the United States Supreme Court

decided Padilla, in which the Court held that counsel’s failure to accurately advise a

defendant of the possible immigration law consequences of a guilty plea violated the

defendant’s right to effective assistance of counsel guaranteed by the Sixth Amendment. 559

U.S. at 368-69. The Court also held that a defendant could raise the issue in a post-

conviction relief proceeding. Id. at 374. The Padilla Court did not address the possible

retroactive application of its decision.

       The issue of retroactivity was addressed, but as it turned out not finally settled, in

Denisyuk v. State, 422 Md. 462 (2011). In that case, the Court of Appeals held that Padilla

applied retroactively to post-conviction proceedings challenging guilty pleas that occurred

after April 1, 1997—the effective date of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRAIRA”).7

       Summarizing a well-developed body of Maryland law exemplified by State v.

Daughtry, 419 Md. 35, 78 (2011), the Court stated 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


       7
        As noted by the Court in Padilla, the IIRAIRA effected sweeping changes in
immigration law by significantly widening the class of deportable criminal offenses and
by limiting, nearly to the vanishing point, the Attorney General’s once wide discretion
“to cancel removal for noncitizens convicted of particular classes of offenses.” 559 U.S.
at 364.
                                              6
question of prospective only application arises.” 422 Md. at 478 (citations and internal

quotation marks omitted). The Court also pointed to our decision in Warrick v. State, 108

Md. App. 108, 113, cert. granted but dismissed at request of party, 342 Md. 507 (1996), as

concisely summarizing the appropriate test: “‘The general rule of retroactivity vel non can

be stated simply—if the subject case merely applies settled precedents to new facts, the case

is given retroactive effect, for the case is viewed as not changing the law in any material

way.’” Id.

       Applying the Daughtry test to the Supreme Court’s reasoning in Padilla, and after

surveying decisions from other jurisdictions, the Court of Appeals concluded that Padilla

should be afforded retroactive effect because:

       Strickland set forth a general standard for application to a specific set of facts;
       that decisions applying the Strickland [v. Washington, 466 U.S. 668 (1984)]
       standard do not establish a rule of prospective application only; and that
       Padilla is an application of Strickland to a specific set of facts.

422 Md. at 481. In a footnote, the Court noted that the cases from other jurisdictions that it

found persuasive relied upon the retroactivity analysis set out in Teague v. Lane, 489 U.S.

288 (1989).8 The Court continued:

       8
           In Teague, the Court stated:

             In general, however, a case announces a new rule when it breaks
       new ground or imposes a new obligation on the States or the Federal
       Government. To put it differently, a case announces a new rule if the result
       was not dictated by precedent existing at the time the defendant’s
       conviction became final.

                                                                                  (continued...)
                                               7
       Maryland has not adopted Teague, nor must it. See Danforth v. Minnesota,
       552 U.S. 264, 282 (2008) (stating that Teague “does not in any way limit the
       authority of a state court, when reviewing its own state criminal convictions,
       to provide a remedy for a violation that is declared ‘nonretroactive’ under
       Teague.”). Thus, even if the Supreme Court ever were to hold that Padilla is
       not retroactive under Teague, that holding would have no adverse effect on
       our analysis here. Indeed, we cite and discuss these cases because we find
       persuasive, and subscribe to, the analysis these courts gave to the Padilla
       decision.

422 Md. at 480 n.8.

       The scenario posited by the Court of Appeals came to pass in Chaidez v. United

States, ___ U.S. ___, 133 S. Ct. 1103 (2013). In that case, the Supreme Court, applying the

principles articulated in Teague, concluded that Padilla did not have retroactive effect in

collateral proceedings. Writing for the majority, Justice Kagan noted that the Supreme Court

itself had expressly declined to address whether inadequate advice as to the effect of a guilty

plea upon a defendant’s immigration status violated the Sixth Amendment’s guarantee of

effective assistance of counsel in Hill v. Lockhart, 474 U.S. 52, 60 (1985). 133 S.Ct. at

1108. Justice Kagan surveyed decisions by federal and state appellate courts filed after Hill

and before Padilla, and concluded that the general rule was that advice as to possible

immigration law effects of a guilty plea was “collateral” to a guilty plea, and thus not within

the pale of the Sixth Amendment’s guarantee. Id. at 1109 n. 7, 8, and 9. She then stated:

              So when we decided Padilla, we answered a question about the Sixth
       Amendment’s reach that we had left open, in a way that altered the law of
       most jurisdictions . . . . Many courts, we acknowledged, had excluded advice

       8
       (...continued)
489 U.S. at 301 (citations omitted) (emphasis omitted).
                                              8
       about collateral matters from the Sixth Amendment’s ambit; and deportation,
        . . . could well be viewed as such a matter . . . . And however apt that
       distinction might be in other contexts, it should not exempt from Sixth
       Amendment scrutiny a lawyer’s advice (or non-advice) about a plea’s
       deportation risk. . . . . We thus resolved the threshold question before us by
       breaching the previously chink-free wall between direct and collateral
       consequences: Notwithstanding the then-dominant view, “Strickland applies
       to Padilla’s claim.”

              If that does not count as “break[ing] new ground” or “impos[ing] a new
       obligation,” we are hard pressed to know what would.

Id. at 1110 (citations omitted).

       This brings us to Miller v. State, 435 Md. 174 (2013), in which the Court of Appeals

sought to reconcile its holding in Denisyuk with Chaidez. Miller, like the case before us,

involved a coram nobis petition seeking to vacate a guilty plea that had adverse immigration

law consequences. Id. at 179-80.9

       Miller presents a threshold problem. There is no majority opinion. Judges Battaglia,

Harrell, and Adkins concluded that Chaidez limits Denisyuk’s ambit to cases in which the



       9
           Miller’s complex procedural history illustrates the uncertainties surrounding
Padilla’s possible retroactive application. In Miller v. State, 196 Md. App. 658, 679-80
(2010) (“Miller I”), this Court held that Padilla did not apply retroactively. This case
was decided prior to Denisyuk. The Court of Appeals vacated the decision and remanded
it to us for reconsideration in light of Denisyuk. 423 Md. 474 (2011) (“Miller II”). On
remand, we concluded that Padilla’s retrospective application did not affect the outcome
of Miller’s case because Miller did not base his petition on ineffective assistance counsel,
but rather on whether his plea was voluntary. 207 Md. App. 453, 460 (2012) (“Miller
III”). Additionally, we commented that “[w]hatever the future may hold, Maryland in the
past has regularly and invariably followed the Supreme Court’s guidance on the issue of
retroactivity/prospectivity and Maryland, for the present, continues to follow the
Supreme Court guidelines. Those Supreme Court guidelines are to be found in Teague
. . . .” Id. at 467.
                                             9
“claims of involuntariness or ineffective assistance of counsel resulting from [the

petitioner’s] failure to be advised of the adverse immigration consequences of his plea had

independent state bases in Maryland” at the time of the guilty plea proceeding. 435 Md. at

198. Writing separately but joining in the result, Judge McDonald stated that he found

“Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here.” 435

Md. at 200. Chief Judge Barbera, joined by Judge Greene and former Chief Judge Bell,

dissented. In their view, the Court’s “reasoning in Denisyuk was sound and this Court is not

required to depart from it, nor should it.” 435 Md. at 205.

       In Derr v. State, 434 Md. 88, 114 (2013), cert denied sub nom, Derr v. Maryland,

____ U.S. ____, 2014 WL 2560480 (2014), the Court of Appeals considered the

precedential effect of Williams v. Illinois, ___U.S. ___, 132 S. Ct. 2221 (2012), another case

without a majority opinion. The Court of Appeals stated that “‘[w]hen a fragmented Court

decides a case and no single rationale explaining the result enjoys the assent of five Justices,

the holding of the Court may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.’” Id. (quoting Marks v. United States,

430 U.S. 188, 193 (1977)). We will apply the same standard to Miller.

       Padilla held that the Sixth Amendment’s guarantee of adequate legal counsel is

violated when a lawyer fails to advise a noncitizen client of possible immigration law

consequences before the client enters a guilty plea. Chaidez, Denisyuk, and the various

opinions in Miller address the circumstances under which Padilla’s holding is to be applied



                                              10
in collateral challenges to convictions that became final before Padilla was filed. Judges

Battaglia, Harrell, and Adkins stated that Padilla should be given retroactive effect only

when state law provides an independent basis for a petitioner’s claim. Implicit in Judge

McDonald’s concurring opinion is the suggestion that Padilla should not be given

retroactive effect in collateral proceedings challenging criminal convictions. (This was the

conclusion reached by Justice Kagan in Chaidez, whose reasoning Judge McDonald found

to be persuasive.) In our view, the plurality opinion by Judge Battaglia represents the

narrower holding. We turn to it now.

       Judge Battaglia began the relevant portion of her analysis by noting that, in Danforth

v. Minnesota, 552 U.S. 264 (2008), the Supreme Court “traced the history of its own

retroactivity jurisprudence leading to Teague and concluded that its standards for

retroactivity were intended ‘to apply only to federal courts considering habeas corpus

petitions challenging state-court criminal convictions[.]’” 435 Md. at 194 (quoting Danforth,

552 U.S. at 279). As a result, “Teague ‘does not in any way limit the authority of a state

court, when reviewing its own state criminal convictions, to provide a remedy for a violation

that is deemed ‘nonretroactive’ under Teague.’” 435 Md. at 193 (footnote omitted) (quoting

Danforth, 552 U.S. at 282). Judge Battaglia then came to the nub of the issue:

               As we recognized in Denisyuk, we have never expressly adopted
       Teague, nor do we need to here. Certainly, were we to have adopted Teague
       as our standard, the resolution of this case would be facile and resolute. In the
       absence of the stewardship of Teague, though, retroactivity of Padilla really
       is not the issue, because, as a state court reviewing Miller’s state criminal
       conviction, we could provide a state remedy for the violations that Miller

                                              11
       asserts were one to have existed at that time. In so doing, however, we cannot
       create a federal remedy denied by the Supreme Court, but must explore
       whether there is a basis in state law to provide Miller a remedy, beyond that
       which would be afforded in federal court.

435 Md. at 194 (citation omitted; emphasis in original).10

       The plurality continued:

               The issue before us in the instant case, thus, becomes whether Miller’s
       claims of involuntariness or ineffective assistance of counsel resulting from
       his failure to be advised of the adverse immigration consequences of his plea
       had independent state bases in Maryland in 1999. When queried on this point
       at oral argument, Miller's counsel could not identify any such state bases for
       affording Miller relief, because there are none.

Id. at 198.

       In her analysis, Judge Battaglia identified only two possible grounds in Maryland law

to support retroactive application of Padilla: Article 21 of the Declaration of Rights11 and




       10
              In a footnote appended to this passage, Judge Battaglia explained:

              Were we to independently assert that Padilla was retroactive
       contrary to the Supreme Court in Chaidez, federal constitutional law prior
       to 2010 would have two distinctly different applications in Maryland.
       Essentially, a non-citizen who had not been advised of adverse immigration
       consequences during a plea colloquy could seek redress in a state court for
       a violation of the United States Constitution, but could not do so in the
       United States District Court for the District of Maryland on an identical
       basis. That cannot be the answer when the United States Supreme Court is
       the final arbiter of federal law.

Id. at 194 n.9.
       11
         Article 21 states in pertinent part: “That in all criminal prosecutions, every man
hath a right . . . to be allowed counsel . . . .”
                                             12
former Maryland Rule 4-242(e).12 Neither was sufficient for the task.

       Judge Battaglia pointed out that Maryland courts traditionally interpreted Article 21's

guarantee of effective assistance of counsel as in pari materia with the Sixth Amendment’s.

Id. at 197–98 (citing, among other cases, Perry v. State, 357 Md. 37, 78 (1999); and Wiggins

v. State, 352 Md. 580, 602–03 (1999)). Judge Battaglia continued:

       After Strickland was decided, moreover, we flatly stated that, “[t]here is no
       distinction between the right to counsel guaranteed by the Sixth Amendment
       and Art. 21 of the Maryland Declaration of Rights . . . .,” State v. Tichnell, 306
       Md. 428, 440 (1986), and had not wavered from that position prior to Miller's
       guilty plea. * * * We, clearly, then, prior to Miller’s guilty plea and conviction
       in 1999, had not articulated that Article 21 provided an independent state basis
       for finding counsel deficient based upon a failure to provide advice regarding
       adverse immigration consequences prior to or during guilty plea proceedings.

435 Md. at 199 (some citations omitted).

       As to Rule 4-242(e), “which mandated a trial court inform a defendant of the

possibility of adverse immigration consequences,” Judge Battaglia noted that the Rule

       12
         As previously discussed, Rule 4-242(e) has been transferred to 4-242(f). It reads
in pertinent part:

       (f) Collateral consequences of a plea of guilty, conditional plea of
       guilty, or plea of nolo contendere. 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, . . .
       and (3) that the defendant should consult with defense counsel if the
       defendant is represented and needs additional 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.
                                              13
further provided that “the failure to so advise a defendant did ‘not itself mandate that the

plea be declared invalid.’”Id. at 199. Therefore, concluded Judge Battaglia, “Miller’s claims,

in short, are not redressable.” Id. at 200.

       Miller’s guilty plea was entered in 1999; Guardado’s in 2008. But the applicable law

is unaltered. Article 21 is still read in pari materia with the Sixth Amendment. See, e.g.,

State v. Walker, 417 Md. 589, 604 n.8 (2011). Moreover, Guardado did not seek relief under

Article 21. His petition, arguably, can be read to suggest that the judge in the guilty plea

proceeding failed to comply with what is now Rule 2-242(f). But, as the transcript of that

hearing clearly indicates, the guilty plea court complied with the rule by advising Guardado

that “This case may lead to other consequences such as deportation. If you have concerns

in that area you should speak to your attorney before entering this guilty plea. Do you

understand that?” Guardado responded “Yes.” And, of course, a violation of the rule alone

is not a basis to set aside the plea. Miller, 435 Md. at 199.

       The circuit court did not err in denying Guardado’s petition for a writ of error coram

nobis because the linchpin of his contentions, namely, that Padilla applied retroactively to

his case, was incorrect.

                                     THE JUDGMENT OF THE CIRCUIT COURT
                                     FOR ANNE ARUNDEL COUNTY IS AFFIRMED.
                                     APPELLANT TO PAY COSTS.




                                              14
