Duncan v. State, 2519, Sept. Term, 2016

Decision Date04 April 2018
Docket NumberNo. 2519, Sept. Term, 2016,2519, Sept. Term, 2016
Citation236 Md.App. 510,182 A.3d 268
Parties Howard DUNCAN v. STATE of Maryland
CourtCourt of Special Appeals of Maryland

Argued by: Claudia A. Cortese (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant

Argued by: Brian S. Kleinbord (Brian E. Frosh, Attorney General, on the brief) Baltimore, MD, for Appellee

Panel: Eyler, Deborah S., Leahy, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Thieme, J.

This appeal arises from the denial of a petition for a writ of error coram nobis filed in the Circuit Court for Montgomery County by appellant, Howard Duncan, in which he claimed that his right to effective assistance of counsel was denied at a violation of probation (VOP) hearing. Appellant presents us with the following question:

Did the court err in denying appellant's petition for writ of error coram nobis?

For the reasons that follow, we answer that question in the negative and affirm the judgment of the circuit court.

BACKGROUND
Guilty Plea.

On October 22, 2008, pursuant to a binding agreement, appellant pleaded guilty, in the Circuit Court for Montgomery County, to two counts of robbery with a dangerous weapon.1 Under the plea agreement, the court bound itself to impose an overall sentence not exceeding twenty years' imprisonment. Additionally, the court bound itself to impose a sentence of executed incarceration not to exceed eighteen months. On October 31, 2008, consistent with the plea agreement, the court imposed a 10–year term of imprisonment, with all but 18 months suspended, for one robbery conviction, and a concurrent 364–day term of imprisonment for the other robbery conviction. The court also imposed two years of supervised probation.

Violation of Probation.

On August 11, 2009, appellant was released from incarceration and began his probation. On November 23, 2010, appellant was found to have been in violation of the terms of his probation after he admitted that he been convicted of a number of other crimes that occurred while he was serving his probation, including, theft, possession of a firearm by a minor, and making a false statement to police. Thereafter, the court directed the execution of six years of the eight and one-half year term of imprisonment it had previously suspended.

Petition for a Writ of Error Coram Nobis.

In 2016, appellant, relying on Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)2 and its progeny, filed a petition for a writ of error coram nobis contending that he was deprived of his right to effective assistance of counsel during his violation of probation proceeding when his counsel (1) failed to inform him of the immigration consequences of admitting that he had violated his probation, and (2) failed to present mitigation evidence to the court related to the immigration consequences of appellant's violation of his probation.

Appellant claimed that, had he known of the immigration consequences of admitting he was in violation of his probation, he would not have admitted violating his probation.3 In addition, he claimed that, had the trial court been aware of the immigration consequences of the execution of the previously suspended sentence, there was a significant possibility that the VOP court might have chosen to sentence appellant to a lesser period of incarceration which would have "preserved his eligibility for immigration relief[.]" According to appellant, if the VOP court had ordered the execution of less than five years of the previously suspended sentence, that would have made appellant's adverse immigration consequences less severe, and, if the VOP court had ordered the execution of less than one year of the previously suspended sentence, that would have potentially eliminated any adverse immigration consequences.

Appellant's argument is premised on certain portions of federal immigration law which reveal that the duration of appellant's sentence(s) for robbery was relevant to, if not determinative of, appellant's removability from this country. The relevant portions of the Immigration and Nationality Act (INA) provide that the Attorney General of the United States has the power to remove an alien from the United States who has been convicted of an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii) ; 8 U.S.C. § 1231. The term "aggravated felony" is defined4 to include "a crime of violence ... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). A "crime of violence" is defined by 18 U.S.C § 16 as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."5 The phrase "term of imprisonment" "is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part." 8 U.S.C. § 1101(a)(48)(B).

In addition, under 8 U.S.C. § 1231(b)(3)(A), if the Attorney General determines that the alien's "life or freedom would be threatened [by being deported to] that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion," then the Attorney General may withhold deportation. However, the Attorney General lacks the authority to withhold deportation if the alien is convicted of a "particularly serious crime." A "particularly serious crime" is defined as an "aggravated felony" for which an alien has a term of imprisonment of at least 5 years. 8 U.S.C. § 1231(b)(3)(B)(iv).

Thus, an alien who is convicted of robbery and receives a sentence in excess of one year's imprisonment, like appellant, is subject to removal from this country regardless of how much of that sentence is suspended. Moreover, if an alien is sentenced to more than five years' imprisonment for robbery (regardless of how much of that sentence is suspended), like appellant, then the Attorney General lacks the authority to withhold deportation under 8 U.S.C. § 1231(b)(3)(A).

Appellant argued that, based on the foregoing, the VOP court had two options at its disposal which could have ameliorated appellant's negative immigration consequences. The VOP court could have either sentenced appellant to less than one year's imprisonment, which would have had the effect of removing the "aggravated felony" status of appellant's robbery conviction, or sentenced appellant to less than five years' imprisonment, which would have had the effect of removing the "particularly serious crime" status of appellant's robbery conviction, which would have, in turn permitted the Attorney General to withhold deportation.

Appellant claims that his attorney's failure to address these immigration related concerns before, or during, the VOP hearing amounted to a deprivation of his right to effective assistance of counsel. According to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order for a defendant to prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) that his counsel made a serious attorney error, and (2) that the error caused prejudice. Id. at 694, 104 S.Ct. 2052.

The Hearing on the Petition for a Writ of Error Coram Nobis.

On December 8, 2016, the court held a hearing on appellant's petition.6 During that hearing, the court said that, with respect to appellant's ineffective assistance of counsel claims, "the only conceivable prejudice is[,] had arguments been presented to me about the impact of a sentence of over five years as opposed to under five years, would that have affected the sentence that I would have imposed[.]" The court then said that "there is ... at least a significant possibility that I might have been swayed" to impose a sentence under five years. The court also said that it would not have considered a sentence of under one year for the violation of probation. The court then reserved on the issue of whether, under the circumstances of this case, counsel was required to inform appellant and/or the court of the immigration consequences of the sentencing on the VOP, and concomitantly, whether VOP counsel made a serious attorney error in failing to advise appellant and/or the court of such consequences.

The Order Denying the Petition for a Writ of Error Coram Nobis.

On January 25, 2017, after receiving supplemental briefing from the parties, the court issued an Opinion and Order denying appellant's petition. The court focused its analysis on whether the original ten-year sentence with all but 18 months suspended, or the six-year VOP sentence, was the operative sentence for immigration consequence purposes. The court found that the federal government, when considering appellant's removability, would consider appellant as having received a ten-year sentence because that was the sentence imposed in 2008. The court ruled, in pertinent part, that:

The [c]ourt shall focus on the question of whether the 6 year sentence imposed for the violation [of probation] is the operative sentence for purposes of the INS because the resolution of that issue is dispositive of [appellant's] request.
Citing to In re: Song , 23 I. & N. Dec., 173 (2001) and In re: Cota–Vargas , 23 I. & N. Dec., 849 (2005), [appellant] argues that the sentence of 6 years imposed for the violation of probation is the controlling sentence for immigration purposes. The original sentence imposed is a nullity for immigration purposes. As the State points out in their Reply, neither of these cases support that proposition. In both cases, the original sentences were struck on reconsideration and new sentences were imposed nunc pro tunc .
Under those circumstances, the INS considered the new sentences only and treated the original sentences as
...

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