Rivera v. State

RAKER, Judge,

dissenting, joined by BELL, Chief Judge:

Petitioner was misled by the statements made by the Assistant State’s Attorney as to the collateral consequences of his guilty plea. The prosecutor’s unequivocal statements were reasonably relied upon by petitioner in entering his guilty plea. Accordingly, petitioner should be granted coram nobis relief and permitted to withdraw his plea of guilty on the grounds that his guilty plea was not freely and voluntarily offered. 1 He relied upon an unequivocal and unambiguous representation of the State that his plea of guilty would not make him eligible for deportation. Although no representative of the State of Maryland can bind the federal government as to immigration matters, petitioner was not unreasonable in relying upon the State’s Attorney’s representation. As an inducement to plead guilty, in the absence of the fulfillment of that inducement, petitioner should be permitted to withdraw his guilty plea.

The majority concludes that the record does not indicate that the Assistant State’s Attorney guaranteed that petitioner would not face immigration consequences. Maj. op at 195-96, 973 A.2d at 230. The majority misses the point. It is not that the State guaranteed that petitioner would not face immigration consequences or would not be deported. Immigration consequences were at the heart of petitioner’s plea considerations. The State knew that. The plea judge knew that as well, as evidenced by the colloquy between the court and *197 petitioner. 2 Petitioner had received the following letter from the representative of the State of Maryland:

“In previous conversations that we have had, there was a concern that a plea to this charge would make your client deportable. 1 have since had an opportunity to speak to Christine Carlson, Special Agent for the U.S. Department of Homeland Security, Immigration and Customs Enforcement, who has informed me that a Contributing charge does not make a defendant eligible for deportation proceedings. It is a charge that INS does not “look behind” as they ■would ‘with a second degree assault. Please feel free to contact Ms. Carlson at 410-962-7449.” (Emphasis added).

Petitioner reasonably relied upon the State’s representation and inducement to plead guilty, and when the State’s representation turned out to be inaccurate, petitioner should be permitted to withdraw his guilty plea.

While the State cannot implement its inducement, it nonetheless has an obligation to provide accurate information and, so long as petitioner had “reasonable grounds for assuming that the [plea] bargain would be consummated,” the prosecutor’s failure to deliver on her promise destroyed the voluntariness of petitioner’s plea and entitles petitioner to relief. See Smith v. State, 875 Md. 365 , 390, 825 A.2d 1055, 1070 (2003) (quoting United States v. Frontero, 452 F.2d 406, 411-12 (5th Cir.1971)). In circumstances analogous to the present case in that they involved a defendant’s reliance upon misleading information provided by the prosecutor to reach a plea agreement, the United States Court of Appeals for the Fifth Circuit noted as follows:

*198 “Inherent in the ‘plea bargaining’ process is the possibility of a misunderstanding on the part of the participants as to possible consequences of a guilty plea. The defendant is often told by his attorney that a ‘promise’ of a certain sentence has been made in exchange for his plea of guilty when, in fact, the ‘promise’ has come from one, such as the prosecutor, who is in no position to make promises concerning sentencing or has been made by the trial judge in terms of ‘probably’, ‘maybe’, or T am inclined toward’. These ‘promises’ are occasionally communicated to defendants as firm deals. When the defendant is induced to plead guilty on the basis of his misinterpretation of the ‘promise’, the plea may, in certain cases, be invalid because it was based on incomprehension or misinterpretation.

* * *

This scenario will sometimes end in a sentence which comports with the defendant’s expectations or in, what the defendant feels is, a ‘double-cross’, when the trial judge exercises his discretion and pronounces a sentence more severe than the prosecutor ‘promised’ or the judge supposedly had committed himself to. When this occurs, the defendant may (and we emphasize ‘may’) have a claim of an invalid plea based on incomprehension, misinterpretation, or inducement. The defendant, however, must have reasonable grounds for assuming that the bargain would be consummated. He cannot, in the ordinary case, rely on the promise of the prosecutor who has no authority to make sentencing promises, or on the inaccurate representations of an overzealous attorney. There must be some basis in the record for an appellate court to find that a ‘bargain’ has been made which acted as an inducement and destroyed voluntariness.”

Frontero, 452 F.2d at 411 (emphasis in first paragraph added).

In State v. Chace, 151 N.H. 310 , 856 A.2d 1 (2004), the prosecutor provided inaccurate information in a letter he wrote to the defendant. In the letter, the prosecutor set out the penalties for the criminal offense at issue, driving while *199 intoxicated. On appeal, the defendant argued the letter was misleading because it failed to provide some discretionary sentencing options. The State argued that it had no obligation to inform the defendant about the particular sentencing procedure and that nothing prevented the defendant from consulting an attorney. Finding the letter misleading, the New Hampshire Supreme Court stated as follows:

“Here, the State voluntarily undertook the task of informing the defendant concerning the consequences of a plea. In doing so, the State has a responsibility to describe fairly and accurately such consequences. In this instance, we agree with the trial court that the letter written by the State failed to meet this burden.”

Id. at 4. No less is expected of the State of Maryland.

In the instant case, petitioner’s reliance on the State’s promise was reasonable. His attorney was tenacious in pursuing the matter. Everyone knew deportation was an issue and of prime concern. Defense counsel received the information from the State in writing. The State led petitioner to believe that he would not face deportation if he pleaded guilty, based upon assurances of the United States Department of Homeland Security, Immigration and Customs Enforcement. Surely, under those circumstances, it was not unreasonable for petitioner to rely upon the word of the State. Although petitioner is not entitled to specific performance, he should be permitted to withdraw his guilty plea.

I would hold that because of the inducements offered by the State in this case, petitioner should be permitted to withdraw his plea. However, I would further hold that henceforth, attorneys are on notice that if a prosecutor makes representations about the ramifications of plea agreements on immigration matters, it should be clear that the State cannot bind the federal government and defendants cannot reasonably rely on such representations to enter into a plea agreement.

Chief Judge BELL has authorized me to state that he joins in the Hews expressed in this dissenting opinion.

. While immigration consequences resulting from disposition of a guilty plea or criminal charge are collateral consequences, the Maryland Rules require a judge to inform a defendant that a guilty plea may result in immigration consequences. See Md. Rule § 4-242(e). When the State voluntarily informs a defendant of the consequences of a plea, the State should be accurate and not misleading.

. The following colloquy transpired before the plea was accepted:

“The Court: If you are not a citizen of the United States, a finding of guilty could have immigration consequences for you. Have you had a chance to discuss that issue with your attorney, if you have any concerns about that?

Petitioner: Yes, I had the chance to discuss with my attorney.

The Court: And this plea has been negotiated in light of those immigration consequences, am I right?

Petitioner: Right, yes.”