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Court considers effect of Padilla ruling on alien defendant’s guilty plea

ANNAPOLIS — With his client facing potential deportation, a public defender urged Maryland’s top court Thursday to throw out the guilty plea that brought Mark Denisyuk, a Latvian national, to the attention of U.S. immigration officials.

Brian L. Zavin blamed Denisyuk’s current plight on his trial defense counsel, who failed to tell him that pleading guilty to the aggravated felony of second-degree assault could give the federal government grounds to remove him from the United States.

Denisyuk, a lawful permanent U.S. resident, would not have pleaded guilty four years ago in Harford County Circuit Court had he been told the possible consequence, Zavin told the Court of Appeals.

In his argument, Zavin relied heavily on the Supreme Court’s March 31 ruling that defense counsel must advise their non-U.S. citizen clients of the potential deportation consequences of pleading guilty. The Supreme Court, in Padilla v. Kentucky, said this obligation on attorneys is rooted in the Constitution’s Sixth Amendment guarantee of effective assistance of counsel.

The Supreme Court issued its decision just two days after Maryland’s intermediate Court of Special Appeals ruled Denisyuk could not undo his plea agreement.

Zavin, in urging Maryland’s top court to reverse that ruling, said Padilla serves as a warning to defense attorneys that they must ask their clients about their citizenship status before advising them to accept a plea bargain.

“I think it would be reckless of an attorney not to ask, ‘Are you a U.S. citizen?’” Zavin told the high court. “It’s something that needs to be asked before the plea is accepted.”

But Judge Glenn T. Harrell Jr. voiced skepticism. He noted the complexity of federal laws governing deportation, including which criminal violations can result in removal from the United States.

“Will criminal defense lawyers also have to become immigration lawyers?” Harrell asked.

No, Zavin responded. But criminal attorneys should tell their clients that “there may be adverse immigration consequences. You may want to consult with someone” who specializes in that area of the law, said Zavin, an assistant Maryland public defender.

Assistant Maryland Attorney General Mary Ann Ince, in urging the high court to uphold the plea deal, distinguished the actions of Jose Padilla’s plea attorney, which violated the Sixth Amendment, from those of Denisyuk’s, which she said did not.

In Padilla’s case, the attorney’s ineffectiveness was based on having told him he faced no risk of deportation because he had resided lawfully in the United States for many years. Denisyuk’s attorney, by contrast, did not address the deportation issue at all, Ince said.

Defense counsel is generally not obliged to address potential “collateral” risks of pleading guilty, such as the possibility of the federal government taking action, Ince added.

“There was no misadvice” in Denisyuk’s case, she said.

But Judge Mary Ellen Barbera appeared unconvinced. She said the Supreme Court made no distinction between attorneys who provide incorrect advice and those who fail to advise.

Ince responded that even if his attorney was ineffective, Denisyuk’s request to undo his plea should still be denied.

She argued that Denisyuk, contrary to his claim, would have accepted the plea even if he had been told of the potential risk because of the state’s “overwhelming” evidence that he was guilty not only of assault but also of burglary.

This evidence included his bloody shirt and eyewitnesses to his assault on Stephen and Robert Myrick as he burglarized the brothers’ Harford County home on April 23, 2006, Ince said.

The burglary charge was dropped under the Nov. 2, 2006, plea deal and Denisyuk was sentenced to 10 years in prison with all but two years suspended. This sentence was much lighter than it would have been had he gone to trial and been convicted of the multiple offenses, Ince said.

The longer prison term Denisyuk faced “undercuts … significantly” his argument that he would not have pleaded guilty had he known the U.S. government would press for his removal.

While he was in prison, the U.S. Immigration and Customs Enforcement agency moved forward with deportation proceedings against Denisyuk, 35, effectively placing him in federal custody. The proceedings are still pending against Denisyuk, who has been a lawful U.S. resident since he entered the country with his family as a young teenager, Zavin said.

Denisyuk filed a petition on Oct. 15, 2007, in Harford County Circuit Court seeking to have his plea agreement thrown out. He argued he had received ineffective assistance because his lawyer had not warned him of the possibility of deportation.

The circuit court agreed, finding he had received ineffective assistance and had suffered “prejudice” as a result, namely that he would not have pleaded guilty had his attorney warned him of the potential consequences.

But the intermediate Court of Special Appeals reinstated the plea agreement. The court said counsel had no obligation to warn the client of collateral risks, such as deportation.

Denisyuk then sought review by the Court of Appeals.

The high court did not indicate when it will render a decision in the case, Denisyuk v. Maryland, No. 45, September Term 2010.