Barbera, C.J. Harrell Battaglia Greene Adkins McDonald [*] Bell, JJ.
Lincoln Miller, Petitioner, a native of Belize, had lived as a permanent resident in the United States since 1981. On June 1, 1999, Miller pled guilty in the Circuit Court for Prince George's County to possession of cocaine with intent to distribute, in violation of Section 286(f)(1)(ii) of Article 27 of the Maryland Code (1957, 1996 Repl. Vol.) and was sentenced to five years' incarceration. During sentencing, Miller was informed of his right to file an application for leave to appeal his conviction to the Court of Special Appeals, but he did not pursue that path. Miller finished serving his mandatory five-year sentence and while incarcerated also did not file any petition for post-conviction relief.
United States Department of Immigration and Customs Enforcement (ICE) initiated deportation proceedings against Miller, because of his 1999 conviction, after he traveled to his native country in 2008 and was detained upon reentry into the United States. In order to forestall his being deported, Miller filed a Petition for a Writ of Error Coram Nobis, pursuant to Maryland Rule 15-1202. In that Petition, Miller asserted "that his guilty plea was not entered knowingly and intelligently, due to the failure to advise him on the record of the possible immigration consequences attendant to his plea."
On August 21, 2009, Judge Maureen M. Lamasney of the Circuit Court for Prince George's County conducted a hearing on Miller's Petition, during which she accepted the transcript of his guilty plea proceeding, which had been made an attachment to Miller's Petition and showed Miller was not advised on the record of the possibility of adverse immigration consequences. Miller testified during the hearing that he was not aware nor was he advised of the possibility of deportation by his attorney, even though his attorney was aware that he was not a citizen. Judge Lamasney denied the Petition, ruling that a trial court needed only inform a defendant of the "direct" consequences of a plea, which did not include the possibility of deportation: "[i]t is clear from the record that the plea Court did not inform [Miller] of . . . possible immigration consequences . . . . However, 'consequences of the plea' has been interpreted to mean 'direct' consequences."
Miller appealed to the Court of Special Appeals; while his appeal was pending, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, __, 130 S.Ct. 1473, 1478, 176 L.Ed.2d 284, 290 (2010), in which the Court held that "constitutionally competent counsel" was required to inform Padilla "that his conviction for drug distribution made him subject to automatic deportation." In so holding, the Court analyzed the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Strickland in the context of guilty pleas), by which courts would determine initially whether an attorney's representation fell below an objective standard of reasonableness considering prevailing professional norms and, if so, whether there is a reasonable probability the result of the proceeding would have been different, but for the errors. Padilla, 559 U.S. at __, 130 S.Ct. at 1484, 176 L.Ed.2d at 294. The Court explained that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland" and that the collateral versus direct distinction was "ill-suited to evaluating a Strickland claim concerning the specific risk of deportation" due to its "close connection to the criminal process." Id. at __, 130 S.Ct. at 1481-82, 176 L.Ed.2d at 293-94. The Court concluded, therefore, "that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel [and, therefore] Strickland applie[d] to Padilla's claim." Id. at __, 130 S.Ct. at 1482, 176 L.Ed.2d at 294 The Court held that constitutionally competent counsel is required to "provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland analysis'" Id. at __, 130 S.Ct. at 1484, 176 L.Ed.2d at 297, quoting Hill, 474 U.S. at 62, 106 S.Ct. 366, 88 L.Ed.2d 203 (White, J, concurring in judgment). The Court then remanded the case for consideration of whether Padilla suffered prejudice because of his counsel's deficient performance. Id. at __, 130 S.Ct. at 1487, 176 L.Ed.2d at 299.
In light of the Supreme Court's holding, the Court of Special Appeals considered Miller's claim to be controlled by the determination of whether Padilla applied "to invalidate [Miller's] guilty plea entered on June 1, 1999[.]" Miller v. State, 196 Md.App. 658, 660, 11 A.3d 340, 341 (2010). In determining that Padilla did not retroactively apply, prior to 2010, to vacate Miller's conviction, the intermediate appellate court determined that "Padilla v. Kentucky announced new law" inapplicable to Miller's conviction. Id. at 679-80, 11 A.3d at 352. In so doing, the court applied the retroactivity test set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in which the Supreme Court had determined that a "new rule, " defined as a rule that "breaks new ground or imposes a new obligation on the States" or a rule where "the result was not dictated by precedent existing at the time the defendant's conviction became final, " would not apply retroactively. Miller, 196 Md.App. at 666, 11 A.3d at 344 (emphasis omitted), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.
Miller, thereafter, filed a Petition for Writ of Certiorari in this Court presenting the sole question of whether Padilla's holding "that failure to advise a non-citizen client about deportation as a possible consequence of a guilty plea constitutes ineffective representation, [should] be applied retroactively" to cases finalized before Padilla. 423 Md. 453, 31 A.3d 921 (2011). This question, however, previously had been queued up in the case of Denisyuk v. State in which we already had granted certiorari to answer whether Padilla applied to Denisyuk's challenge to his 2006 conviction, which, he averred, should have been vacated because his counsel had been ineffective for having failed to advise him of potential adverse immigration consequences prior to pleading guilty. 415 Md. 38, 997 A.2d 789 (2010). In Denisyuk v. State, 422 Md. 462, 466, 473, 30 A.3d 914, 916, 920 (2011), we subsequently determined that Padilla should be applied retroactively to Sixth Amendment claims arising after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, after which deportation for certain crimes became practically inevitable for non-citizens: "[W]e hold that Padilla applies to postconviction claims arising from guilty pleas obtained after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (effective April 1, 1997) . . . ."
The retroactivity test relied upon in Denisyuk was derived from State v. Daughtry, 419 Md. 35, 18 A.3d 60 (2011), which required a determination "of whether a particular judicial decision . . . overrules prior law and declares a new principle of law. If a decision does not . . . the decision applies retroactively in the same manner as most court decisions." Id. at 78, 18 A.3d at 86, quoting Houghton v. County Com'rs of Kent Co., 307 Md. 216, 220, 513 A.2d 291, 293 (1986). We also noted, "'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 from the past ... ' that the question of prospective only application arises." Denisyuk, 422 Md. at 478, 30 A.3d at 923, quoting Potts v. State, 300 Md. 567, 577, 479 A.2d 1335, 1341 (1984), quoting in turn United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).
Utilizing this test, we determined Padilla did not overrule prior law and declare a new principle of law, but rather applied settled precedent—Strickland—to a new and different factual situation, and, therefore, Padilla applied retroactively. Denisyuk, 422 Md. at 481-82, 30 A.3d at 925, citing Daughtry, 419 Md. at 78, 18 A.3d at 86; Potts, 300 Md. at 577, 479 A.2d at 1341. In so doing, we noted that a number of courts had previously addressed the retroactivity of Padilla and although "the decisions [were] not uniform in holding that Padilla applie[d] retroactively, we [were] persuaded that those" cases that held Padilla applied retroactively "represent[ed] the better reasoned view, " Denisyuk, 422 Md. at 479, 30 A.3d at 923-24, but also recognized that "all of these courts used the retroactivity test set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)." Id. at 480 n.8, 30 A.3d at 924 n.8. We suggested, nevertheless, that were the Supreme Court to determine Padilla did not apply retroactively under Teague, our opinion regarding retroactivity would remain valid because "Maryland has not adopted Teague, nor must it. 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. " Id. at 480 n.8, 30 A.3d at 924-25 n.8, citing Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).
We, then, granted Miller's petition for certiorari, 423 Md. 453, 31 A.3d 921 (2011), and remanded the case to the Court of Special Appeals for reconsideration in light of Denisyuk. 423 Md. 474, 32 A.3d 1 (2011). Prior to the Court of Special Appeals' decision on remand, however, the Supreme Court granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), to consider whether Padilla had retroactive effect. 566 U.S., 132 S.Ct. 2101, 182 L.Ed.2d 867. Thereafter, the Court of Special Appeals once again affirmed the denial of Miller's Petition for a Writ of Error Coram Nobis, holding that Miller had raised the issue of the voluntariness of his plea in his Petition but not ineffective assistance of counsel, so that Padilla and Denisyuk were not applicable to his case:
[O]ur Miller v. State[, 196 Md.App. 658, 11 A.3d 340 (2010)] deals only with the voluntariness of a guilty plea. Padilla v. Kentucky, for its part, does not deal with and has absolutely nothing to say about the voluntariness of a guilty plea. The Court of Appeals's opinion in Denisyuk v. State also does not deal with and has absolutely nothing to say about the voluntariness of a guilty plea. Conversely, the retroactive Sixth Amendment relief sanctioned by Denisyuk was never requested by Miller. . . . The petition for coram nobis relief never so much as mentioned the Sixth Amendment, and the subject was not raised at the subsequent hearing. Our opinion in Miller v. State was not predicated on the Sixth Amendment in any way. . . . This is our primary reason for concluding, on reconsideration, that Denisyuk v. State neither compels nor persuades us to reach a different result in Miller v. State. The two cases deal with totally different subjects.
Miller v. State, 207 Md.App. 453, 464-65, 53 A.3d 385, 392 (2012).
In the midst of this whirlwind of judicial activity, we granted certiorari, 429 Md. 528, 53 A.3d 385 (2012),  and prior to oral argument before us, the Supreme Court decided Chaidez v. United States, __U.S.__, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), in which the Court held that Padilla did not apply retroactively under Teague because Padilla had announced a "new rule" of constitutional criminal procedure. The Court acknowledged that "garden variety" applications of the test in Strickland "do not produce new rules" but concluded that "Padilla did something more":
Before deciding if failing to provide [advice regarding the possibility of adverse immigration consequences] "fell below an objective standard of reasonableness, " Padilla considered a threshold question: Was advice about deportation "categorically removed" from the scope of the Sixth Amendment right to counsel because it involved only a "collateral consequence" of a conviction, rather than a component of the criminal sentence? In other words, prior to asking how the Strickland test applied ("Did the attorney act unreasonably?"), Padilla asked whether the Strickland test applied ("Should we even evaluate if this attorney acted unreasonably?"). . . . [T]hat preliminary question about Strickland's ambit came to the Padilla Court unsettled — so that the Court's answer ("Yes, Strickland governs here") required a new rule.
Chaidez, __U.S. at__, 133 S.Ct. at 1107-08, 185 L.Ed.2d at 156-57. The Court further noted that prior to Padilla, ten federal appellate courts and thirty state appellate courts to which the issue was presented determined that the Sixth Amendment did not require defense counsel to inform a client that a guilty plea would have adverse immigration consequences, and "if [holding contrary to this weight of authority] does not count as 'break[ing] new ground' or 'impos[ing] a new obligation, ' we are hard pressed to know what would." Id. at __, 133 S.Ct. at 1109-10, 185 L.Ed.2d at 159, quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.
The somewhat circuitous path, thus, brings us to the present dilemma: whether Padilla applies to Miller's 1999 plea colloquy and subsequent conviction given that the Supreme Court held Padilla would not have retroactive effect. We granted certiorari in this case to answer that question, but the State presents us with the preliminary question of whether we can even consider if Miller is entitled to relief because, by failing to file an application for leave to appeal from his guilty plea, Miller waived the right to file his coram nobis petition. Miller, however, contends that waiver does not bar consideration of his arguments before the trial court and on appeal, because, at the time of his guilty plea in 1999 he could not have anticipated that the Supreme Court would decide Padilla.
"[T]he waiver standards embodied in the Post Conviction [Procedure] Act" apply to coram nobis proceedings, "[t]herefore, the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction Procedure Act . . . [is] applicable to a coram nobis proceeding challenging a criminal conviction." Holmes v. State, 401 Md. 429, 442, 454-55, 932 A.2d 698, 706, 714 (2007). The issue of waiver in the Post Conviction Procedure Act is governed by Section 7-106(b) of the Criminal Procedure Article, Maryland Code (2001, 2008 Repl. Vol., 2012 Supp.), which provides:
(b) Waiver of allegation of error. — (1)(i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:
2. at trial;
3. on direct appeal; whether or not the petitioner took an appeal,
4.in an application for leave to appeal a conviction based ...