Miller v. State, 1907

• Decision Date: 26 September 2012
• Docket Number: No. 1907,Sept. Term, 2009.,1907
• Citation: 207 Md.App. 453,53 A.3d 385
• Parties: Lincoln MILLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

207 Md.App. 453

53 A.3d 385

Lincoln MILLER

v.STATE of Maryland.

No. 1907, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Sept. 26, 2012.

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

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

Journeys in the Fourth Dimension

The key issue before us, as we reconsider on remand our earlier decision in this case, is that of how a recent opinion of the Supreme Court announcing constitutional law might retroactively apply to a Maryland conviction that had long since become final and is now before us only on collateral, rather than on direct, review. Our focus will be upon 1) the test that must be applied to determine whether the recent Supreme Court pronouncement is or is not “new law”; 2) the precise earlier Maryland event to which the newly announced federal law is arguably to be retroactively applied; and 3) the time as of which the “old versus new law” measurement is to be taken. Permeating all of these issues is the critical question of timing. When does something that once was “new law” become “old law” and, if it does thus ripen, what exactly are the maturing agents that bring about such change? How does H.G. Wells's Time Machine behave in the court room?

This Court filed its decision in Miller v. State, 196 Md.App. 658, 11 A.3d 340 (2010). On November 23, 2011, the Court of Appeals filed a Per Curiam Order vacating our judgment and remanding the case to us “for reconsideration in light of Denisyuk v. State [422 Md. 462, 30 A.3d 914] ... filed on October 25, 2011.”

Miller v. State: The Decision Reaffirmed

We have thoroughly reviewed and reconsidered our decision in Miller in light of Denisyuk and find nothing that directly and authoritatively requires us to change our earlier decision. We hereby reaffirm it. We do believe, however, that some comment is appropriate to explain why Denisyuk does not persuade us to alter our original holding.

The riddle of whether a judicial decision that breaks new ground should receive only prospective, partly retroactive, or fully retroactive application can be incredibly complex. The subtle interaction of the Supreme Court's opinion in Padilla v. Kentucky, the Court of Appeals's opinion in Denisyuk v. State, and this Court's opinion in Miller v. State implicates numerous sub-issues, some of which have never been raised before in a Maryland court. Accordingly, we deemed it advisable to enlist the assistance of counsel in plumbing some of the depths of the retroactivity/prospectivity question. We asked both partiesto submit supplemental memoranda addressing five questions:

1. What impact, if any, should Denisyuk v. State, 422 Md. 462 (2011) and Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), have on our decision in Miller v. State?

2. What exactly is the test for whether a newly announced Supreme Court decision is actually “new law” or is simply an application of an already well-established principle?

3. To what point in the past do we apply that test, to wit, was the arguably retroactive rule “new law” or an “established principle” as of precisely what date?

4. Does Padilla v. Kentucky's statement that the distinction between a direct consequence and a collateral consequence of a criminal conviction is “ill-suited” to evaluating non-advice about deportation, 130 S.Ct. at 1482, have any retroactive impact on earlier analyses?

5. As to retroactivity/prospectivity questions generally, should Maryland follow Teague v. Lane and, if not, what should be our alternative framework of analysis?

In addition to their legal memoranda, we also had the benefit of counsel's addressing those issues at reargument on September 12, 2012.

Denisyuk Does Not Control Miller

There is, to be sure, an obvious overlap in the core concerns of both Denisyuk and Miller. Both opinions focus on the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284, filed on March 31, 2010. Both opinions concern the applicability of Padilla to the respective situations under review in those two cases. Although the two cases share a general interest in Padilla, however, their ultimate situations with respect to Padilla's applicability are radically different in two significant regards.

A. Dissimilar Substantive Issues

A critical, indeed dispositive, difference is with respect to the type of legal issue that might or might not be impacted by the Padilla holding. What Denisyuk held is that the holding of Padilla will enjoy retroactive applicability in Maryland. It is necessary, therefore, to identify that precise holding of Padilla. The majority opinion of the Supreme Court held:

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not— is left to the “mercies of incompetent counsel.”Richardson, 397 U.S. at 771, 90 S.Ct. 1441, 25 L.Ed.2d 763. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below.

559 U.S. at ––––, 130 S.Ct. at 1486–87, 176 L.Ed.2d at 299 (emphasis supplied).

We must next identify precisely what Denisyuk held to be the Padilla holding that is now to be given retroactive applicability:

We conclude, for the reasons that follow, that the holding of Padilla, i.e., that the failure of defense counsel to advise his or her client of the potential immigration consequence of a guilty plea is deficient performance under Strickland, applies retroactively to all cases arising out of convictions based on guilty pleas that occurred after April 1, 1997, the effective date of the enactment of the IIRAIRA.

422 Md. at 479–79, 30 A.3d 914 (emphasis supplied).

From its introduction to its conclusion and at all points between, Denisyuk focused, as did Padilla before it, on the Sixth Amendment right to the effective assistance of counsel as measured by the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Denisyuk's analysis focused exclusively on the professional performance of defense counsel, as measured not by pre-existing caselaw but by emerging bar association standards of professional responsibility.

In Miller, by contrast, the issue before the lower court, the decision of the lower court, and the original opinion of this Court had absolutely nothing to do with the Sixth Amendment or with ineffective assistance of counsel. Our only concern in Miller was with the ultimate voluntariness of a guilty plea, as measured by the seminal Maryland cases of State v. Priet, 289 Md. 267, 424 A.2d 349 (1981), and State v. Daughtry, 419 Md. 35, 18 A.3d 60 (2011). The exclusive focus in Miller was on the mind of the defendant, not on the professional performance of the lawyer. The latter, of course, may have some influence on the former, but such influence is by no means automatic and the two issues are far from the same. To compare Denisyuk with Miller is to compare apples and oranges.

Even assuming a retroactive application of Padilla to cases on collateral review generally, the direct impact of Padilla on a claim of ineffective assistance, on the one hand, and its, at most, indirect and arguable influence on a claim of guilty plea involuntariness, on the other hand, are by no means the same. The first is directly dispositive, at least with respect to the performance prong of Strickland v. Washington. The latter would be, at most, indirect and the arguable influence would be extremely problematic.

Denisyuk stated that, as of April 1, 1997, the failure of defense counsel to advise a non-citizen defendant contemplatinga guilty plea that a conviction might result in ultimate deportation would amount to, ipso facto, the failure to satisfy the performance prong of Strickland v. Washington. As the Court of Appeals announced, 422 Md. at 478–79, 30 A.3d 914:

We conclude, for the reasons that follow, that the holding of Padilla, i.e., that the failure of defense counsel to advise his or her client of the potential immigrationconsequence of a guilty plea is deficient performance under Strickland,

applies retroactively to all cases arising out of convictions based on guilty pleas that occurred after April 1, 1997, the effective date of the enactment of the IIRAIRA.

(Emphasis supplied). That's all there is to it! The Sixth Amendment analysis is over and the case, if it is a Sixth Amendment case, is decided.

An assessment of the voluntariness of a guilty plea, by diametric contrast, is never so automatic or mechanistic an exercise. For the very different criteria that determine the voluntariness of a guilty plea, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). All pertinent factors will enter into the analysis and voluntariness will ultimately be assessed only after examining the totality of the circumstances. Judge Harrell described the voluntariness standard in State v. Daughtry, 419 Md. 35, 79–80, 18 A.3d 60 (2011):

Our decision in the present case in no way “overrules prior law and declares a new principle of law.” The law of this State with respect to the...