Miller v. State

• Decision Date: 29 December 2010
• Docket Number: No. 1907, Sept. Term, 2009.,1907, Sept. Term, 2009.
• Citation: 11 A.3d 340,196 Md.App. 658
• Parties: Lincoln MILLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

11 A.3d 340

196 Md.App. 658

Lincoln MILLER

v.STATE of Maryland.

No. 1907, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Dec. 29, 2010.

Flynn M. Owens (Rubin & Owens, PA, on the brief), Baltimore, MD, for Appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: MEREDITH, WRIGHT and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

When an appellate court applies a legal principle in a new way, the retroactivity of such an application almost invariably depends on whether the new application represents simply thedecanting of old wine in new bottles or the uncorking of a new wine. The Supreme Court announced its decision in Padilla v. Kentucky, 559 U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 on March 31, 2010. The holding was that if a defense attorney fails to advise a non-citizen client about deportation as a possible consequence of a guilty plea, such failure could represent ineffective assistance of counsel and could invalidate the guilty plea. The taste test now before us asks us to assess the vintage of that holding. Will it or will it not date back to invalidate a guilty plea entered on June 1, 1999?

The Guilty Plea

In the Circuit Court for Prince George's County on June 1, 1999, the appellant, Lincoln Miller, tendered a plea of guilty to the charge of possessing 448 grams of cocaine with the intent to distribute. At no time during the offering of the plea was the appellant advised on the record by the court or by counsel about any possibly adverse immigration consequences that might result from that plea. Accepting the plea, which was otherwise voluntary and knowledgeable in every respect, Judge Richard H. Sothoron, Jr. sentenced the appellant to five years of imprisonment without the possibility of parole. The appellant did not appeal that sentence, which the appellant finished serving on June 1, 2004.

Subsequent Events

Following his release from prison in Maryland, the appellant, who is now 58 years of age, returned to New York State and resumed residence with his wife of 24 years. The appellant is a native of Belize. He had been accorded Lawful Permanent Resident status in the United States in 1981. For all intents and purposes, the appellant's travails in Maryland were ancient history when, in the spring of 2008, he paid a visit to his native Belize. Upon his return to the United States on May 27, 2008, however, he was detained by Immigration and Customs Enforcement agents at the Miami International Airport. On September 29, 2008, deportation proceedings against him were begun, based on the 1999 convictionin Prince George's County. The removal proceedings are being held in abeyance, pending the resolution of this appeal.

Coram Nobis

On June 18, 2009, the appellant filed a Petition for a Writ of Error Coram Nobis in the Circuit Court for Prince George's County. He alleged that "his guilty plea had not been tendered knowingly, voluntarily, and intelligently, in light of the facts that: (1) he was not advised of the immigration consequences attendant to his plea, and (2) he was not advised, prior to acceptance of his plea, that by pleading guilty he was foregoing his right to direct appeal, and was thus limited to filing an application for leave to appeal, on four limited grounds."

On August 21, 2009, a hearing was held on the coram nobis petition before Judge Maureen Lamasney. The appellant was the only witness to testify. On October 5, 2009, Judge Lamasney filed an Opinion and Order denying the coram nobis petition. The critical part of Judge Lamasney's opinion reads as follows:

It is clear from the record that the Plea Court did not inform the petitioner of either possible immigration consequences or the right to a direct automatic appeal to the Court of Special Appeals if convicted after a trial. However, "consequences of the plea" has been interpreted to mean "direct" consequences. A consequence is considered direct only if "the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment", Cuthrell v. Director of Patuxent 475 F.2d 1364 (4th Cir.1973).

(Emphasis supplied).

Padilla v. Kentucky

The appellant now appeals from that denial, claiming that Padilla v. Kentucky has, nunc pro tunc, rendered Judge Lamasney's rationale untenable. Judge Lamasney's decision was based upon the well-settled Maryland (and, indeed, national) law that a guilty plea may not be attacked on theground that the defendant had not been advised with respect to the collateral consequences (as opposed to direct consequences) of the conviction to which he was pleading guilty. Cuthrell v. Director of Patuxent, 475 F.2d 1364 (1973), the decision of the United States Court of Appeals for the Fourth Circuit on which Judge Lamasney relied, well reflected the prevailing national law.

The law is clear that a valid plea of guilty requires that the defendant be made aware of all "the direct consequences of his plea." By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all "possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty."

475 F.2d at 1365-66 (emphasis supplied). There is no question but that deportation is a collateral consequence of a conviction.

The appellant is correct that automatically rejecting a defendant's claim on the basis of the collateral consequence—direct consequence distinction is no longer proper. In that regard, the Supreme Court majority opinion was clear.

The collateral [consequence] versus direct [consequence] distinction is ... ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim.

--- U.S. at ----, 130 S.Ct. at 1482, 176 L.Ed.2d at 294 (emphasis supplied).¹

The dispositive question for us, however, is whether that Supreme Court decision of March 21, 2010, has any applicability to the appellant's guilty plea of June 1, 1999.

Retroactivity Versus Prospectivity

The most articulate local statement on retroactive versus prospective application of an arguably new legal ruling is that by Judge Harrell (now on the Court of Appeals) for this Court in Warrick v. State, 108 Md.App. 108, 113, 671 A.2d 51, cert. denied, 342 Md. 507, 677 A.2d 583 (1996):

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. On the other hand, if the subject case creates a new rule that is a "clear break" with the past, retrospective application is inappropriate. The Supreme Court has said that a "clear break" exists where the new rule "explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overruled a longstanding practice that lower courts had uniformly approved."

(Emphasis supplied).

The limited extent to which even a "new" legal ruling will be given a partially retroactive effect is that even a "new" ruling will apply to all other cases that are not yet final, in the sense that they are still on direct appeal. In Teague v. Lane, 489 U.S. 288, 304-05, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Justice O'Connor stated that even "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final."

In Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), Justice Blackmun wrote for the Supreme Court:

[A]fter we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that ruleto all similar cases pending on direct review. Justice Harlan observed:

"If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all.... In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation." Mackey v. United States, 401 U.S. [667], at 679, 91 S.Ct. 1160, 23 [28] L.Ed.2d 404 [ (1971) ] (opinion concurring in judgments).

As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final.

(Emphasis supplied). See also Potts v. State, 300 Md. 567, 581, 479 A.2d 1335 (1984) ("As a general rule, a change in law will be given effect while a case is on direct review.") (Emphasis supplied).

This Case Was Not On Direct Review

This variety of quasi-retroactivity would clearly not apply to the appellant's June 1, 1999 guilty plea. The case was final and beyond any possibility for direct review as of July 1, 1999, the end of the 30-day window within which an appeal or application for leave to appeal from the June 1, 1999 judgment of guilty might have been filed.² When Padilla v. Kentucky was decided, almost eleven years later, the appellant's case was indisputably not on direct review.

[11 A.3d 344, 196 Md.App. 665]

For cases which are no longer on direct review but only on collateral review, such as this one and such as our recently decided case of State v. Denisyuk, 191 Md.App. 408, 991 A.2d 1275, cert. granted, 415 Md. 38, 997 A.2d 789 (2010),³ newly announced legal principles would not apply. In Teague v. Lane, ...