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State v. Prado

Court of Appeals of Maryland

July 11, 2016


          Argued: June 1, 2016

         Circuit 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.


          WATTS, J.

         In 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.

         In this 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.


         On June 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, [1] pursuant to an agreement with the State.[2] 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?
[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?
[TRIAL COUNSEL]: You are not under an active deportation order?
[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?
[TRIAL COUNSEL]: And you still wish to proceed this morning?

         Thereafter, 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."

         The 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[3]
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 face.
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 it was.
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 degrees.
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.

         The 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.

         Over 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 a conviction.

         On 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 consequences.
[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 him.
[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 from?
[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 immigration officials?
[TRIAL COUNSEL]: If the Federal government chooses to exercise their right to deport him.
[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?
[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, so.

         Trial 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 her[.]"

         On 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.

         When 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."

         Sanmartin 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 ...

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