State v. Denisyuk- Immigration Consequences of Guilty Pleas

The Maryland Court of Appeals is Not Pleased with certain Guilty Pleas!

On November 2, 2006, in the Circuit Court for Harford County, Mark Denisyuk pled guilty to second degree assault. Denisyuk was a Latvian citizen who immigrated to the United States in 1989, at the age of 14.

As a result of his conviction, Denisyuk faced deportation.

At the time that he pled guilty, the Circuit Court, the State’s Attorney and his defense attorney, did not discuss with Mr. Denisyuk whether his guilty plea would affect his status in the United States.

On October 25, 2011, the Maryland Court of Appeals, in a landmark decision, vacated Mr. Denisyuk’s conviction, see .

In doing so, the Court of Appeals analyzed a recent Supreme Court case of Padilla v. Kentucky, 130 S. Ct 1473 (2010).  In that case, the Supreme Court ruled that a Defendant must be told of deportation consequences when he pled guilty.

The real question in Denisyuk is whether the Padilla case could now be applied to a conviction in 2006.  The Court of Appeals ruled that their decision would apply to all guilty pleas entered since April 1, 1997, the effective date of the Illegal Immigration and Immigrant Responsibility Act of 1996.

This is an astonishing decision.  Courts generally do not like to apply their decisions retroactively because it could force a review of potentially thousands of cases.  After this decision, defendants, faced with deportation for a conviction, can claim ineffective assistance of counsel and revisit their convictions.  A defendant, who entered a plea in 1998 and who now is facing deportation, can attempt to have the conviction vacated and, if successful, will be entitled to a new trial.  Most criminal defense attorneys have been aware of the need to address a defendant’s citizen status since September, 2001, when the Department of Homeland Security and the Justice Department became much more aggressive in pursuing deportations.  However, this was not an issue that was drawing a lot of attention, even among criminal defense attorneys in 1997, 1998, 1999 and 2000.

The Supreme Court in Padilla held that deportation is not “merely a collateral consequence of a guilty plea,” 130 S. Ct at p. 1487.  Therefore, the Supreme Court found long after Padilla’s conviction, that the issue of immigration was the basis to vacate the conviction.

Now that Maryland Court of Appeals has weighed in and strengthened a defendant’s rights, the question is how far this issue can be taken.  Suppose the defense attorney mentioned the dangers of deportation, but the interpreter forgot to translate this portion of the guilty plea?  Or, suppose the interpreter merely mentioned the possibility of deportation, but did not explain how this applied to the Defendant’s circumstances.  Would this lead to vacating the conviction?

Going forward, there is a simple solution to preventing the issues raised by the Denisyuk case- a universal written form in all Maryland Courts advising defendants of the rights they give up by proceeding with a guilty plea or the alternative, used more often in Maryland, a “Not Guilty- Agreed Statement of Facts” (this is similar to a plea of “No Contest” in other states- the Defendant is pleading Not Guilty, but is admitting to the Statement of Charges or a set of facts that will likely lead to a finding of guilt by the Court.)

Some courts in Maryland have these forms available- it depends on the Judge.

However, there should be a form that defendants sign and submit before entering their pleas.  There should be a standard form in all Maryland District and Circuit Courts in English, Spanish, Korean and any other language that Defendants frequently speak.

Judges should like these forms because it would make their job easier- they do not have to go through the litany of questions to be sure that the Defendants are making informed and voluntary waivers of their constitutional rights.  This will also reduce overturned convictions in their Courts.  Similarly, defense attorneys should find these forms helpful in educating their clients, protecting their clients’ rights and avoiding claims of “ineffective counsel.”  Defense attorneys could meet with their clients prior to court, in their offices, and review the form with them.  They could have their clients sign the form before stepping into the courtroom, so that the attorneys could have a copy of the signed waiver of rights in their file for future proof, in case a client claims later that he was not properly advised.  Wouldn’t this make a defense attorney’s life easier?  Wouldn’t this assist the defense attorneys in educating their clients if they reviewed these rights in their office, without the stresses on the day of trial?

In an effort to initiate this discussion, I (with the assistance of my bilingual Legal Assistant and former Court interpreter, Lucy Pardo) have created a “Not Guilty Agreed Statement of Facts Waiver of Rights” form in English and Spanish and I have posted it to my blog-

The form needs some modifications, I am sure.  But, it is a start to try and prevent the kind of constitutional breakdown that occurred in the Denisyuk case.

If you are a client, whatever your native language, feel free to look at this form so that you understand your rights.  If you are a Defendant, whether represented by me or not, you should know the rights you are waiving before you go to Court.  If you are an attorney with a Maryland criminal case, feel free to use the form for any assistance it can provide.

Call me or email me if you have any questions about your criminal rights, constitutional rights or if you just want to enter into a discussion about it.