Duncan v. State

Howard Duncan v. State of Maryland, No. 2519, September Term, 2016, Opinion by Thieme, J. CRIMINAL LAW – WRIT OF ERROR CORAM NOBIS – INEFFECTIVE ASSISTANCE OF COUNSEL – COUNSEL’S OBLIGATIONS UNDER PADILLA v. KENTUCKY, 559 U.S. 356 (2010), AND ITS PROGENY, REGARDING IMMIGRATION CONSEQUENCES OF CRIMINAL SENTENCES ORDERED DURING VIOLATION OF PROBATION PROCEEDINGS: Appellant claimed that he was denied his right to effective assistance of counsel in connection with his violation of probation proceedings when his lawyer failed to apprise the court of the immigration consequences that would result if the court were to sentence appellant to certain lengths of incarceration upon finding appellant in violation of his probation. Appellant failed to show deficient performance on the part of his attorney because appellant’s adverse immigration consequences arose when he was originally sentenced and there was nothing the violation of probation court could have done to ameliorate those consequences. Accordingly, appellant failed to show that he was denied his right to effective assistance of counsel. CRIMINAL LAW – VIOLATION OF PROBATION: When a court imposes a sentence and then suspends execution of all or part of that sentence in favor of probation, and later strikes the probation and directs execution of all or part of the previously suspended part of the sentence, the court does not, at that time re-impose all or any part of the sentence. The full sentence has already been imposed and does not need any re-imposition. The effect of the court’s action is simply to lift the previously ordered suspension and direct execution of the now unsuspended part. Moats v. Scott, 358 Md. 593, 596-97 (2000). Circuit Court for Montgomery County Criminal Case No. 110627-28 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2519 September Term, 2016 ______________________________________ HOWARD DUNCAN v. STATE OF MARYLAND ______________________________________ Eyler, Deborah S., Leahy, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Thieme, J. ______________________________________ Filed: April 4, 2018 This appeal arises from the denial of a petition for a writ of error coram nobis filed in the Circuit Court for Montgomery County by appellant, Howard Duncan, in which he claimed that his right to effective assistance of counsel was denied at a violation of probation (VOP) hearing. Appellant presents us with the following question: Did the court err in denying appellant’s petition for writ of error coram nobis? For the reasons that follow, we answer that question in the negative and affirm the judgment of the circuit court. BACKGROUND Guilty Plea. On October 22, 2008, pursuant to a binding agreement, appellant pleaded guilty, in the Circuit Court for Montgomery County, to two counts of robbery with a dangerous weapon.1 Under the plea agreement, the court bound itself to impose an overall sentence not exceeding twenty years’ imprisonment. Additionally, the court bound itself to impose a sentence of executed incarceration not to exceed eighteen months. On October 31, 2008, consistent with the plea agreement, the court imposed a 10-year term of imprisonment, with all but ...

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