State v. Denisyuk, No. 1819, September Term, 2008 (Md. App. 3/29/2010)

Decision Date29 March 2010
Docket NumberNo. 1819, September Term, 2008.,1819, September Term, 2008.
CourtCourt of Special Appeals of Maryland

Opinion by Moylan, J.

In a nutshell, the appellee, Mark Denisyuk, entered a plea of guilty but, in the cold light of dawn, was unhappy about having done so. In such a fell clutch of circumstance, two possibilities have potential for turning back the clock. One is to establish that the plea was involuntary. The other, distinct albeit closely intertwined, is to establish that the lawyerly advice, or lack thereof, that precipitated the plea was constitutionally ineffective. The appellee had a go at both possibilities and, to the State's chagrin, prevailed on one of them.

Procedural Background

The appellee is a native and a citizen of Latvia. On November 2, 2006, he entered a guilty plea in the Circuit Court for Harford County to the charge of second-degree assault. He was found guilty and received a sentence of ten years imprisonment with all but two years suspended followed by three years of supervised probation "upon release."

A year later, on October 15, 2007, however, the appellee petitioned for post-conviction relief. He claimed that prior to entering the plea of guilty, he had not been advised that, as a possible collateral consequence of a conviction, he might be subject to deportation from the United States. He contended that as a result of that failure to advise, 1) his guilty plea was involuntary and 2) he had been denied his Sixth Amendment right to the effective assistance of counsel. A hearing was held on that petition on May 16, 2008.

The hearing judge, in a Memorandum Opinion and Order filed on August 29, 2008, ruled against the appellee with respect to the voluntariness of the guilty plea. The State, as appellant, has not challenged that ruling. We accept, as established fact, that the appellee's plea of guilty was voluntary. Any discussion of the judge's ruling on that issue is unnecessary, except to the extent that it may have some bearing on the related question of effective assistance of counsel.

On the companion argument, however, the hearing judge agreed with the appellee that, under the Sixth Amendment, the appellee had been denied the effective assistance of counsel. The hearing judge ordered a new trial, and the State took this timely appeal.

A Sixth Amendment Claim

As our analysis begins, it is important to make sure that we are in the right doctrinal ballpark. In his post-conviction petition and in appellate brief before us, the appellee has raised, expressly and exclusively, a claim of ineffective assistance of counsel pursuant to the Sixth Amendment of the United States Constitution, which provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.

In pursuing his argument, moreover, the appellee relies totally on the two Supreme Court cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The only Maryland decision even mentioned by the appellee is Yoswick v. State, 347 Md. 228, 700 A.2d 251 (1997), an opinion which, in turn, analyzes the claim before it exclusively in terms of the Sixth Amendment right to counsel and which relies specifically on the Supreme Court decisions of Strickland v. Washington and Hill v. Lockhart.

We deliberately identify this exclusive doctrinal context in order to fend off the appellee's almost desperate and unadorned mention, low in Footnote 5 of appellate brief, of Article 21 of the Maryland Declaration of Rights. The passing mention is nothing but a Parthian dart and has nothing to do with this case. We are not about, sua sponte, to manufacture some unique Maryland obtrusion on well-settled and smoothly functioning national law.

An Act, At Most, of Sub-Constitutional Omission

The failure to advise of which the appellee complains was, at most, an act of nonfeasance and not one of misfeasance, an error of omission and not of commission. Since 1999, Maryland Rule of Procedure 4-242(e) has provided:

(e) Collateral Consequences of a Plea of Guilty or Nolo Contendere. Before the court accepts a plea of guilty or nolo contendere, the court, the State's Attorney, the attorney for the defendant, or any combination thereof shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship .... The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.

(Emphasis supplied).

In this case there was a total omission by everybody to say anything. This distinction between omission and commission may take on importance as we examine the national caselaw. Whereas some of the analyses have recognized the possibility that the affirmative giving of erroneous advice on the collateral consequence of deportation may amount to the ineffectiveness of counsel pursuant to the Sixth Amendment, see, e.g., United States v. Couto, 311 F.3d 179 (2d Cir. 2002), none has considered the mere omission to say anything at all to be so dire a constitutional breach.

Round Up the Usual Suspects

As the appellee entered his guilty plea on November 2, 2006, no such advice, as we have said, was given by anyone. The subject of deportation or, indeed, of the appellee's non-citizenship never arose. Rule 4-242(e) was ostensibly ignored. Who, if anyone, dropped the ball? One can picture the trial judge, the prosecuting attorney, and the defense attorney standing in an embarrassed circle, each pointing an accusing finger at one or both of the others. In such a situation, however, it is the defense attorney who unfortunately draws the short straw. The Sixth Amendment, after all, does not guarantee to a criminally accused a right to the effective assistance of the trial judge or a right to the effective assistance of the prosecuting attorney. The sweeping command to all hands by Rule 4-242(e) notwithstanding, the Sixth Amendment puts the defense attorney, all by himself, on the constitutional hot seat.

The Two-Pronged Test of Strickland

The acid test for assessing the effective assistance of defense counsel was articulated by the Supreme Court in 1984 in Strickland v. Washington. It is a two-pronged test that appraises, in either order, 1) performance and 2) prejudice. Justice O'Connor's opinion for the Court discussed the double-barreled thrust of the test.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687 (emphasis supplied).

Strickland's Performance Prong

It is the first of the two prongs — the performance prong — that will command our almost exclusive attention in this case. Strickland went as far as it is reasonably feasible to go, 466 U.S. at 687-88, in constructing a workable standard of lawyerly effectiveness.

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated in McMann v. Richardson that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not "a reasonably competent attorney" and the advice was not "within the range of competence demanded of attorneys in criminal cases." When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

(Emphasis supplied).

Strickland wisely admonished, 466 U.S. at 688-89, that there are no objective absolutes or mathematical formulae for measuring performance.

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. ... No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.

(Emphasis supplied).

The Supreme Court did, however, emphatically stress that the effective assistance of counsel is not something to be second-guessed in hindsight on the basis of what worked and what did not.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that...

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