Argued: June 1, 2016
Court for Baltimore County Case No. 03-K-10-003295
Barbera, C.J., Greene, Adkins, McDonald, Watts, Rodowsky,
Lawrence F. (Retired, Specially Assigned) Battaglia, Lynne A.
(Retired, Specially Assigned), JJ.
Padilla v. Kentucky, 559 U.S. 356, 374, 369 (2010),
the Supreme Court held for the first time that, pursuant to
the Sixth Amendment right to counsel, "counsel must
inform [his or] her client whether his [or her] plea carries
a risk of deportation[, ]" and that, "when the
deportation consequence is truly clear, . . . the duty to
give correct advice is equally clear." After
Padilla, in Denisyuk v. State, 422 Md. 462,
466, 30 A.3d 914, 916 (2011), this Court held, in relevant
part, that "defense counsel's failure to advise [the
defendant] of the deportation consequence of his guilty plea
was constitutionally deficient[, ]" and that,
"based on the record developed at the postconviction
hearing and the [postconviction] court's express finding
on the subject,  counsel's deficient performance
prejudiced [the defendant]." Additionally, in the wake
of Padilla, courts in other jurisdictions have held
that a defendant's counsel's performance was
constitutionally deficient where the defendant's counsel
either failed to advise the defendant whatsoever of the
immigration consequences of the defendant's guilty plea,
or affirmatively misadvised the defendant about the
immigration consequences of the defendant's guilty plea.
Murkier, however, are the waters where a defendant's
counsel advises that an offense is deportable and uses
"qualifying" words-such as "very likely be
deported, " Chacon v. State, 409 S.W.3d 529,
532 (Mo.Ct.App. 2013) (emphasis omitted), or "strong
chance" of being deported, State v. Shata, 868
N.W.2d 93, 96 (Wis. 2015)-when advising a defendant of the
immigration consequences attendant to a plea.
case, we must decide whether defense counsel's
advice-that there "could and probably would be
immigration consequences" for the defendant's
conviction for second-degree child abuse because it was a
"deportable" or "possibly deportable"
offense-was constitutionally deficient because defense
counsel "qualified" his advice, or was correct
advice that adequately informed the defendant of the risk of
deportation. We hold that, where the coram nobis court found
that defense counsel advised the defendant that "this
was a 'deportable offense' and [the defendant]
'could be deported . . . if the federal government chose
to initiate deportation proceedings, ' and it was
'possible' that the [defendant] would be deported[,
]" and where defense counsel testified that he also
advised the defendant that "there could and probably
would be immigration consequences" and "that it was
a deportable or a possibly deportable offense, " and the
advice was given before a plea of not guilty by way of an
agreed statement of facts proceeding, such advice was not
constitutionally deficient, but rather was "correct
advice" about the "risk of deportation, " as
required by Padilla, 559 U.S. at 369, 374.
8, 2010, Juan Carlos Sanmartin Prado ("Sanmartin
Prado"), Respondent, a citizen of Ecuador and a legal
permanent resident of the United States, was charged by
criminal information filed in the Circuit Court for Baltimore
County ("the circuit court") with first-degree
child abuse causing severe physical injury, second-degree
child abuse, and second-degree assault against his
three-year-old daughter. On January 6, 2011, Sanmartin Prado
pleaded not guilty by way of an agreed statement of facts to
Count 2, second-degree child abuse,  pursuant to an agreement
with the State. At that time, Sanmartin Prado's trial
counsel ("trial counsel") engaged in a waiver
colloquy with Sanmartin Prado; and the following exchange
occurred as to Sanmartin Prado's immigration status:
[TRIAL COUNSEL]: And understand what -- we have had
discussions with respect to your immigration status.
Is that correct?
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: You have a green card and you have been a
permanent resident of the United States for over twelve
years, is that correct?
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: You are not under an active deportation
[SANMARTIN PRADO]: No.
[TRIAL COUNSEL]: And there's no immigration detainer that
we are aware of.
Is that correct?
[SANMARTIN PRADO]: That's correct.
[TRIAL COUNSEL]: And you understand that I'm not making
any promises and the [circuit court] is not making any
promises about what the federal government could possibly do
in the future with respect to reviewing this conviction.
Is that correct?
[SANMARTIN PRADO]: Yes, sir.
[TRIAL COUNSEL]: And you still wish to proceed this morning?
[SANMARTIN PRADO]: Yes, sir.
the circuit court announced that "Sanmartin Prado ha[d]
waived his rights to a jury trial and to a Court trial in
this matter, and that he ha[d] done so voluntarily and
understanding the rights that he has."
State then read into the record the following agreed
statement of facts:
[O]n April 28th, 2010, the Crimes Against Children's Unit
of the Baltimore County Police Department received
information regarding a possible child abuse that occurred to
a three-year-old named B
The matter was assigned to Detective Lane to investigate.
Detective Lane's investigation revealed that on
4-18-2010, ten days earlier, the child was in her father, . .
. Sanmartin Prado's care and during that time she
sustained a serious burn to the left side of her face.
During that time the mother of the child, Gina Salinas became
aware of the burn.
Together  Salinas and  Sanmartin Prado made the decision
not to take the child to the hospital, however, the next day,
April 19th 2010, the child was taken to Johns Hopkins
Hospital. There the mother and [Sanmartin Prado] told the
hospital staff a story that consisted of this being an
accident. The child was in the bath tub, she turned the water
on and she burnt her face.
The police were not called at that time. Days later the
police were informed of this injury. The police did interview
 Salinas and she told the police that she had left her
child B[.] with [Sanmartin Prado] while she worked and when
she came home from work she found B[.] to have a serious burn
to the left side of her face.
[Sanmartin Prado] was subsequently interviewed by Detective
Lane on May 3rd of 2010. All of this happening well after the
child had received care and treatment for what was determined
to be second and third degree burns on the left side of her
By this point those burns had scabbed over. The injury was
just a discoloration to the child's face, however, on May
3rd, 2010, while speaking with Detective Lane, [Sanmartin
Prado] after being Mirandized did agree that on April 18th,
2010, while his wife worked, he cared for his children. At
some point B[.] woke up from her nap and she was
inconsolable. She was crying for her mother and, as he had
done in the past, he took the spray from the shower head and
as she sat in the bathroom on the toilet he sprayed the water
at her. [Sanmartin Prado] would say that most of the water
went on the floor, however, the child continued to cry, he
believed crying still for her mother.
He would say that he had no idea that the water was as hot as
The bath tub was examined and it was that the faucet was just
one faucet for both cold and hot water. The water temp --
well, [Sanmartin Prado] said that he sprayed his daughter in
the facial area and the body for approximately two minutes.
The water temp was tested and it was found that after one
minute that the water would reach a temperature of 128
Studies have shown that at 122 degrees the skin will burn
after one minute.
Again, if called to testify,  Salinas, the mother, would
attest she was not home when the burns occurred. Again
Detective Lane would attest that [Sanmartin Prado] admitted
that as a course of punishment he turned the water on his
child not meaning to burn her, is -- would be his words, but
that he did, in fact, spray her with the water and that did
in fact cause burns that were subsequently seen approximately
ten days after being treated.
All events occurred in Baltimore County, and that would be
the State's case.
circuit court found Sanmartin Prado guilty of second-degree
child abuse, and sentenced him to five years'
imprisonment with all but two years suspended, followed by
two years of supervised probation with the condition that
Sanmartin Prado complete a physical offender treatment
program and a parenting course offered by the Department of
Social Services. The charges for first-degree child abuse
causing severe physical injury and second-degree assault were
nol prossed. Sanmartin Prado did not appeal the conviction.
two years later, on October 21, 2013, Sanmartin Prado filed
in the circuit court a "Petition for Writ of Error Coram
Nobis" ("the petition"), contending that, as a
result of the conviction, he was facing a significant
collateral consequence, namely, "that he is
automatically deportable from the United States[.]"
Sanmartin Prado stated that, as of the time of the filing of
the petition, he was "in proceedings before the
Immigration Court with one of the allegations being the
conviction in the  case to substantiate or to support the
government's claim for deportation." Sanmartin Prado
alleged that his trial counsel had rendered ineffective
assistance of counsel at the January 6, 2011 plea hearing by
failing to advise him that he was subject to automatic
deportation as a result of the conviction, and by failing to
specify what immigration consequences he could face as a
result of conviction, including being subject to automatic
deportation. According to Sanmartin Prado, had he known that
he would be subject to automatic deportation as a result of
the conviction, he would not have pled not guilty on an
agreed statement of facts, and instead would have gone to
trial. On November 18, 2013, the State filed an answer and
motion to dismiss the petition without a hearing, contending,
in pertinent part, that trial counsel properly advised
Sanmartin Prado of the potential immigration consequences of
January 28, 2014, the circuit court conducted a hearing on
the petition. At the hearing, Sanmartin Prado called trial
counsel as a witness. Trial counsel testified that he visited
Sanmartin Prado in jail before the January 6, 2011
proceeding, and the following exchange occurred concerning
trial counsel's discussions with Sanmartin Prado about
the immigration consequences of a conviction:
[CORAM NOBIS COUNSEL]: Now, when you discussed these matters
with  Sanmartin [Prado], did you ask him if he was a
citizen of the United States?
[TRIAL COUNSEL]: I don't know if I exactly asked him if
he was a citizen, I asked him where he was born, he told me
he was from Ecuador, he came to the United States with his
mother when he was eighteen and he told me that he was a
permanent resident and had a green card and had, had so had
that green card since 1998. That's what my notes reflect.
[CORAM NOBIS COUNSEL]: But did you, you did not determine
whether or not, since 1998, he had become a citizen?
[TRIAL COUNSEL]: No, I knew he was not a naturalized U.S.
citizen, if that's your question.
[CORAM NOBIS COUNSEL]: Now, after having gotten that
information, what, if anything, did you explore to determine
if any problems he might have with immigration?
[TRIAL COUNSEL]: On December . . . 30th of 2010, I
met with [Sanmartin Prado] for the final time at the
Detention Center. I explained to him that the, there could
and probably would be immigration consequences as a result of
the plea but that the, the term of art that I usually use is
that immigration is a moving target and that it was, I recall
telling him that it was a deportable or a possibly deportable
offense, but the plea agreement that the State had offered,
he indicated to me that he was interested in taking that and
my notes, written on the inside of my file jacket, I can read
them verbatim if you'd like.
[CORAM NOBIS COUNSEL]: That's fine. If that refreshes
your recollection, that's fine.
[TRIAL COUNSEL]: It says, [Sanmartin Prado] wants deal,
prefer Alford plea, quote, cannot admit guilty, unquote,
spoke extensively re imm, I-M-M-period, consequences.
[CIRCUIT COURT]: I'm sorry, slow down, --
[TRIAL COUNSEL]: Which I would take to be immigration
[CORAM NOBIS COUNSEL]: Okay. What did you explain to him
about immigration consequences?
[TRIAL COUNSEL]: That it's a deportable offense and he
could be deported if the Federal government chooses to deport
[CORAM NOBIS COUNSEL]: Why is it a deportable offense?
[TRIAL COUNSEL]: Because it is an aggravated felony which
carries more than a year in jail.
[CORAM NOBIS COUNSEL]: And where did you get that information
[TRIAL COUNSEL]: My, I've always wanted to say this, my
training, knowledge and experience as a lawyer.
[CORAM NOBIS COUNSEL]: That's good. Nothing wrong with
that. And at the time that you advised my client --
[CIRCUIT COURT]: Can, can you go, hold on, [coram nobis
counsel]. [Trial counsel], you told, you testified that you
told [Sanmartin Prado], the question to you was, what
consequences did you advise him of and what you said to
[Sanmartin] Prado was that it was a deportable offense, he
could be deported and then what did you say, if the
[TRIAL COUNSEL]: If the Federal government chooses to
exercise their right to deport him.
[CIRCUIT COURT]: Okay.
[TRIAL COUNSEL]: Or. to, to initiate deportation proceedings.
[CORAM NOBIS COUNSEL]: Nowhere in that colloquy [during the
January 6, 2011 proceeding] do you ever tell  Sanmartin
Prado that he's automatically deportable as a result of
the conviction in this case, correct?
[TRIAL COUNSEL]: No.
[CORAM NOBIS COUNSEL]: [D]id you ever tell  Sanmartin Prado
that the conviction would make him automatically deportable
under all circumstances?
[TRIAL COUNSEL]: I don't know if I used the term
automatic but I certainly said it was a deportable offense,
counsel also testified that he met with Sanmartin Prado's
wife and that his "notes d[id] not reflect that we
discussed the possible immigration consequences[, ] but I
can't believe I would not have discussed those with
cross-examination, the prosecutor asked trial counsel what he
meant "by deportation is a moving target[, ]" to
which trial counsel responded:
Especially back in 2009, 2010 even, early into 2011, I found
that there was sort of some arbitrary enforcement of the
Federal immigration laws. Some people were getting deported,
other people were not. Some people were getting deportation
orders. So, you know, I guess, in hindsight, you know, I
shouldn't have used the term moving target but I think it
was clear to [Sanmartin Prado] and I think I made it pretty
clear on the record that this was deportable and he and I
discussed that and that that was a very real collateral
consequence to the plea.
asked by the prosecutor "at no time did you tell
[Sanmartin] Prado you will not be deported as a result of
this case[, ]" trial counsel emphatically testified:
"I absolutely, positively did not tell him you, because
if I, if that, if I were that certain, I would have not had
the discussion at all."
Prado testified on his own behalf through the assistance of a
Spanish-language interpreter. According to Sanmartin Prado,
he saw trial counsel at the jail twice without the assistance
of an interpreter. Coram nobis counsel asked about Sanmartin
Prado's discussions ...