Man faces deportation after pleading guilty to assault

Four years ago, Mark Denisyuk broke into an apartment in Harford County. He fought with the occupants who threw him out and, when police arrived, he was standing outside, drunk, with slurred speech, his shirt and face bloodied. A judge later noted, "He had no realistic defense."

Denisyuk pleaded guilty to assault. He was sentenced to serve two years in prison.

But no one — not the trial judge, not the prosecutor, not his own lawyer — advised him that if he was not a U.S. citizen, and if he was found guilty of a crime, he could be deported.

Denisyuk, 34, has lived in Harford County since the age of 14, graduated from a local high school and speaks fluent and colloquial English. He is not a U.S. citizen.

And so when authorities grabbed him from his Harford County prison cell to put him in federal detention to face a deportation hearing, Denisyuk appealed his conviction, arguing his plea was not voluntary and that his lawyer had failed to advise him of the consequences.

Had he known he could be deported, he argued, he would have taken his chances at trial.

A Harford County Circuit Court judge ruled in his favor, saying that his plea was voluntary but his lawyer was ineffective, and ordered a new trial. The state appealed, and the Maryland Court of Special Appeals ruled on Monday that Denisyuk, while worthy of sympathy, must suffer the full consequence of his guilty plea. There will be no new trial, and federal immigration officials are free to hold a hearing and throw him out.

But throw him where?

The Maryland Court of Special Appeals says he is a citizen of Latvia. But Denisyuk was born in 1975 when Latvia was part of the Soviet Union. He came to the United States in 1989, two years before Latvia gained its independence. One of his attorneys, Joseph Murtha, said the independent Latvia can't find his client's birth certificate from the occupied Latvia. Murtha said there might be no proof he's from Latvia.

"He might be a man without a country," the lawyer said.

Murtha said Denisyuk plans to ask Maryland's highest court to hear an appeal, basing his argument on a ruling the U.S. Supreme Court made Wednesday. In that case, the nation's highest court ordered a new trial for a Honduran citizen because his lawyer had wrongly told him his guilty plea would not affect his immigration status.

Anyone who has participated in a trial knows it is difficult to plead guilty to a crime. Judges and lawyers pepper defendants with questions about whether they know all the rights they are giving up, and the prosecutor reads details of the case into the record. If the defendant disagrees with any word, the judge can reject the plea. It is standard, but according to former Judge Charles E. Moylan Jr. of the Court of Special Appeals, not necessarily required, to warn defendants they could be deported if they're not U.S. citizens.

Maryland case law says that "the omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid."

Moylan, who works in retirement, wrote for a unanimous court that "in this case, there was a total omission by everybody to say anything" and he blamed the defense lawyer for the break-down. But he also ruled that the likelihood of conviction must be considered, and he said Denisyuk had no chance at winning at trial.

"The guilty plea was the only smart choice to make," Moylan wrote. The strength of the state's case trumped the error.

Moylan, after writing 49 pages of legal theory peppered with amusing turns of phrase — such as the Constitution "does not guarantee life-counseling advice" — ended his ruling with a lengthy passage that is both an apology and an explanation. He titled it, "Uprooted": "Banishment is a cruel fate. ... The prospect of being forever exiled to a world but dimly remembered was, indeed, a grim specter. It was a specter, however, that if it were to have had any helpful influence on the appellee's choices, needed to be confronted before he committed the crime, not later as he sat at the trial table. At the trial table, he no longer had any realistic options left. His appreciation of the wages of sin was already hopelessly too late.

"To try, in hindsight, to transfer his moment of meaningful choice from the crime scene forward to the trial table is simply to allow compassion to trump logic in an effort to give a forlorn defendant an essentially lawless break," Moylan concluded. "The head cannot permit what the heart would like to do."

Denisyuk's attorneys are hoping the law will, in fact, follow the heart.

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