Published on 3/14/2024, 4:31:00 PM

Maryland's Immigration Friendly New Probation Before Judgment

Welcome to FrizWoods LLC, where understanding meets action in the heart of Maryland's legal landscape. With the latest legislative session bringing pivotal changes, especially for our legal permanent resident and non-citizen community, it's time to shine a light on Maryland's progressive steps towards a more inclusive legal process.

The new section C under the Probation Before Judgment (PBJ) law heralds a significant shift, specifically designed to ease the immigration consequences often associated with convictions.

Navigating New Waters: The Essence of PBJ (C)

At its core, PBJ (C) is a groundbreaking provision within Maryland's criminal procedure landscape, offering a lifeline to individuals facing criminal charges without the harsh tag of a conviction for immigration purposes.

What Does PBJ (C) Entail?

Md. Code, Crim. Proc. Section 6-220, as amended, introduces a nuanced approach towards the probation before judgment process, allowing for a probationary period without entering a conviction. This is crucial for immigration purposes, as convictions can often lead to deportation, visa denial, or ineligibility for naturalization.

Key Highlights:

• Immigration-Friendly: Specifically designed not to be considered a conviction for immigration purposes.
• Eligibility Criteria: Defendants must plead not guilty but agree to probation terms, waiving their rights to a trial and potential appeal on the probation agreement.
• Consent Requirement: All parties must consent to the entry of the agreement, this means the defendant, the Judge and the State must consent to proceed under this section.
• Violation Consequences: If terms are violated, the court may enter a finding of guilt and impose sentences up to the maximum penalty.

Understanding the Impact on Immigration

For non-citizens, the distinction between a conviction and a probation before judgment had little effect on staying in the U.S. and facing possible removal. Here's how PBJ (C) changes the game:

Avoiding Convictions:

By avoiding a formal conviction, non-citizens sidestep the potential automatic triggers that could lead to immigration review and possible deportation. This is in contrast to a traditional probation before judgement, which would have normally caused immigration consequences down the line.

Employment and Citizenship Paths:

A clean slate means fewer hurdles in employment, visa renewals, and naturalization applications, preserving opportunities to build a future in the U.S.

Frequently Asked Questions

Q: Does a PBJ(c) guarentee that I won't be removed?
A: This law is new in Maryland, and its likely that legal challenges to the new diposition will occur over the next few years. At this point it remains undecided if Federal Immigration Courts will wholly ignore PBJ(c) agreements.

Q: Who is eligible for PBJ (C)?
A: Individuals facing certain criminal charges who plead not guilty can be considered, provided the State and Judge also consent to proceed under this subsection.

Q: Does PBJ (C) mean I won't have a criminal record?
A: While PBJ (C) is not considered a conviction for immigration purposes and other specific scenarios under state law, it may still appear on criminal background checks.

Q: Can I still be deported if I receive a PBJ (C)?
A: Every immigration case is unique. While PBJ (C) is designed to mitigate the risk of deportation due to a conviction, it does not guarantee that there won't be other grounds for deportation.

Q: How does PBJ (C) affect my future in the U.S.?
A: It opens doors by not closing them. Avoiding a conviction keeps paths to employment, citizenship, and residency less complicated. For those who are legal permanent residents, it may not cause a reset in the waiting time before applying for citizenship.

PBJ(c) Colloquy for Defendant

Below is a sample of a PBJ(c) agreement colloqy.

Judge: "I understand that DEFENDANT wishes to proceed under Md. Crim. Proc. 6-220(c), which we call a PBJ(c), meaning that he will waive his right to a trial and agree to be placed on probation in exchange for the Court's agreement to withhold a finding or judgment of guilt. Specifically, the parties have agreed to [review any specific agreements regarding sentence]. Is that your understanding of the agreement?"

Judge: "How does the Defendant plead to the charge(s) of CHARGE?"

Note: Defendant must enter plea of Not Guilty.

Judge: "When you enter into a PBJ(c) agreement, you give up certain rights. I [or your attorney] need to ask you some questions to ensure that you are giving up those rights knowingly and voluntarily:

• What is your name?

• How old are you?

• How far did you go in school?

• Can you read, write, and understand the English language?

  • Alternatively: Can you read, write, and understand [language of interpretation]?

• Are you currently under the influence of any drugs, alcohol, or medication that make it difficult for you to understand what is going on here today?

• Are you having any physical or mental health problems that make it difficult for you to understand what is going on?

• You have the right to a trial.

  • If applicable: You have the right to a jury trial. A jury consists of 12 individuals. You and your attorney would help to select those 12 people from a larger group drawn from the motor and voter rolls. The jurors would listen to the evidence in your case and could only find you guilty if all 12 of them were convinced of your guilt beyond a reasonable doubt. If all 12 agreed that the State had not proven your guilt beyond a reasonable doubt, they would find you not guilty, and if they could not agree, the State could continue to try the case over again before different juries, until a unanimous decision was reached one way or the other. Do you understand this right?
  • You have the right to a bench trial. In a bench trial, the judge would listen to the facts of your case and determine your guilt or innocence based upon the same standard of beyond a reasonable doubt. Do you understand this right?
  • Regardless of whether you chose a bench trial or a jury trial:
    • The State would have the burden of proving your guilt beyond a reasonable doubt. That means the State must put on witnesses and produce evidence to prove your guilt, or else the judge/jury could not find you guilty.
    • Through your attorney, you would have the right to confront or cross-examine the State's witnesses.
    • You could put on your own witnesses/evidence, but you would not have the burden of proving your innocence.
    • If you wanted to call a witness who was reluctant to come to court, you could use subpoena power to have the Sheriff bring them to court.
    • In addition to calling other witnesses, you would have the absolute right to take the stand and testify under oath in your own defense. You would also have the absolute right NOT to testify, and if you chose to remain silent your silence could not be used against you in any way. In a bench trial, the judge would be aware that s/he is prohibited from drawing any conclusions from your silence and cannot even consider your decision not to testify.
    • If applicable: In a jury trial, the judge would instruct the jury that they absolutely cannot draw any conclusions from your silence or even consider the fact that you decided not to testify.
      Do you understand and give up all those rights that go along with a trial?

• Do you understand that if you violate the terms of your probation before judgment agreement, the court could then enter a guilty finding in this case and sentence you to [the maximum penalty]/[the maximum allowed under the agreement]?

• If you proceeded to trial in this case, you would have the right to challenge any defects in the charging document, and to challenge the manner in which the State gathered evidence against you. Do you understand that by entering into this PBJ(c) agreement, you are giving up the opportunity to make those legal arguments?

• If you went to trial in this case and you were found guilty, you would have the automatic right to appeal that judgment, which is to have a higher court review it for any legal errors. If you enter the PBJ(c) agreement, there will be no judgment of guilt, so you will not be able to appeal the probation agreement.

• You understand that, if you were on probation or parole at the time of the alleged incident in this case, and if you later violate probation and the Court enters a judgment of guilt in this case, that judgment of guilt could violate your probation or parole?

• You understand that if you are not a citizen of the US, and if you later violate your probation and the court enters a judgment of guilt in this case, that judgment of guilt could have immigration consequences up to and including deportation?

• Do you agree to accept probation in this case [outline agreed upon terms] in exchange for the Court withholding any finding or judgment of guilt?

• I have been handed a form entitled Agreement Between Court and Defendant to Probation Before Judgment Disposition Under Md. Crim. Proc. Section 6-220(c). Have you reviewed this document with your attorney? Is that your signature at the bottom?

• Has anyone threatened you in any way, or made you any promises other than the promises described in the agreement, to get you to enter this agreement?

• Are you entering this agreement freely and voluntarily?

State, please proffer the facts in support of the agreement. State must proffer facts that would, if found, be sufficient to establish jurisdiction and make out elements of the agreed upon offense(s).

I understand that the Defendant does not admit to those facts, but consents to being placed on probation before judgment pursuant to Md. Crim. Proc. 6-220(c). I find that these facts would be sufficient to make a finding of guilt beyond a reasonable doubt, but I do not make such a finding at this time. I find that a PBJ(c) disposition in this matter serves the interests of the Defendant and the public welfare, and therefore I will withhold any finding or judgment of guilt and

I will place the defendant on [unsupervised/supervised] probation for a period of _______ months, with the following special conditions:

[If the offense that is the subject of this agreement is a violation of Transportation Article 21-902, or of 2-503, 2-504, 2-505, 2-506, or 3-211 of the Criminal Law Article, or Title 5 of the Criminal Law Article the Court must either (1) order the Defendant to participate in an alcohol or drug treatment or education program approved by MDH as a condition of probation, or (2) find as follows: I further find that the interests of the defendant and the public do not require me to make it a condition of probation that Defendant attend an alcohol or drug treatment/education program approved by MDH.]

If you are discharged from probation with no violations, then no guilty finding or judgment will ever be entered in this case and you may ask to have certain cases expunged from your record. If you violate probation, then the Court may make a finding of guilt and impose judgment of guilt and sentence you appropriately at that time.

I'm going to give you a copy of two documents, the first is a probation order which you will review with your attorney and sign. The second is an Order setting out my findings of fact and imposing the PBJ(c) disposition. I will give you signed copies of each which you should retain for your records. You must report to probation [immediately/within X time].

Contact us Today About Your Case!

As the landscape of law continues to evolve, so too does the pathway to justice and fairness for all individuals, regardless of their immigration status. At FrizWoods LLC, we're not just watching the horizon; we're paving the way to it. For more information on how we can assist you or your loved ones navigate through the complexities of PBJ (C) and its implications for immigration, visit our sitemap or contact us directly.

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