… Man not told he would be deported if he pleaded guilty …
By Peter Hermann, The Baltimore Sun
8:14 PM EDT, October 30, 2011
A man with no country has a chance to stay in the United States a bit longer.
Maryland’s highest court has ruled that 36-year-old Mark Denisyuk, who has been in the United States illegally for more than two decades, deserves another trial on five-year-old assault charges because no one told him his guilty plea could lead to his deportation.
The ruling means Denisyuk can stay in the country — his lawyer says he’s been released from the custody of federal immigration officials — at least until his case is resolved in Harford County.
Prosecutors said they have not decided whether to retry him.
Denisyuk argued that had he known the consequences of pleading guilty to a crime in 2006, he would have challenged the charges in front of a jury, even though he would have risked serving more than the two years he accepted as part of a plea deal.
Complicating the case is that Denisyuk says he has no place to which he can be deported. The town he left in 1989 in what was then the Soviet Union is now part of Latvia, which became an independent country in 1991. According to his attorney, officials there have no record of his client’s birth.
“He is still a man without a country,” said defense lawyer Joseph Murtha.
The Court of Appeals, in a 4-3 decision, ruled last week that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”
The opinion by Judge Mary Ellen Barbera said that the defendant had the right to “run the risk of significant jail time, rather than the near certainty of deportation.”
Dissenting judges questioned whether the court was giving in to Denysuk’s request based solely on a statement he made after he pleaded guilty.
“The majority’s decision is that a self-serving declaration suffices to vacate a guilty plea,” they wrote. The minority cited Denysuk’s past convictions, including one for theft, and said he still could be targeted for deportation.
Harford County State’s Attorney Joseph I. Cassilly said the possibility of a new trial depends on the availability of witnesses and victims in what is now a five-year-old case.
Denisyuk has lived in Harford County for 22 years. He graduated from a local high school and learned to speak fluent English. Murtha, who has not spoken to his client in months, said Denisyuk is trying to put his life together as he waits in legal limbo. Denisyuk could not be reached for comment.
A spokeswoman with U.S. Immigration and Customs Enforcement said she was not able to talk about the specific case, but did say that the agency’s priorities for deportation are illegal immigrants convicted of crimes, people kicked out of the country who come back and people wanted on immigration warrants.
Denisyuk’s latest legal troubles stem from a case in which police say he was caught breaking into an apartment in Harford County five years ago. Court documents say he fought with the occupants, who threw him out. When police arrived, he was standing outside, drunk, his face bloodied.
He pleaded guilty to assault on Nov. 2, 2006. The Circuit Court judge noted at the time that Denisyuk “had no realistic defense,” and sentenced him to serve two years in prison and three years’ probation. Immigration agents promptly took him into custody.
The problem was that no one — not the trial judge, not the prosecutor, not his own lawyer — told him that because he was not a citizen, his guilty plea could get him deported. In fact, immigration agents took him into federal custody after his plea and began deportation proceedings.
Denisyuk appealed his conviction, arguing that had he known he faced deportation, he would not have accepted the plea deal. A Harford County Circuit Court judge agreed and ordered a new trial.
But Maryland’s second-highest court ruled unanimously that while Denisyuk deserved sympathy, there was no requirement that he be warned of possible deportation.
Judges on the Court of Special Appeals said the state’s case was so strong that “the guilty plea was the only smart choice to make” and that the Constitution “does not guarantee life-counseling advice.”
They said granting Denisyuk another trial after his conviction amounted to allowing “compassion to trump logic.”
But two days after the Special Appeals court issued that opinion, the U.S. Supreme Court ordered a new trial for a Honduran citizen convicted of drug distribution because his attorney had told him — incorrectly — that his guilty plea would not affect his immigration status.
Maryland’s Court of Appeals said that the Supreme Court ruling upended Maryland law and legal precedents, and must be applied to cases dating back to 1997, when Congress reformed immigration law.
Three judges dissented, including Lynne A. Battaglia, who wrote that instead of a new trial, Denisyuk should be granted a hearing “to determine whether an alien’s decision to reject a plea offer and proceed to trial would have been rational under the circumstances.”
Battaglia said the hearing could explore issues still unresolved in Denisyuk’s case, including his ties to the United States, whether he has family here and whether his past criminal offenses might also affect his immigration status.
Denisyuk has a string of arrests in Harford and Baltimore counties, mostly on misdemeanor drug, traffic and theft charges, dating back to the mid-1990s. He also has several convictions, including one for driving under the influence and theft that landed him an 18-month prison sentence in Baltimore County in 1996.
Copyright © 2011, The Baltimore Sun
… ‘Stupid is as stupid does’ in the MD Court of Appeals. The judiciary runs amuck, again. Obviously, four of them don’t get ‘illegal’ either. …