Opinion
No. 15–P–690.
07-12-2016
COMMONWEALTH v. Miguel ACOSTA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty to possession of heroin with intent to distribute, possession of marijuana with intent to distribute, and unlawful possession of a firearm. He appeals from the denial of his second “motion to vacate judgment,” in which he sought to withdraw his guilty pleas. The defendant claims ineffective assistance of counsel on the ground that plea counsel failed to inform him of the immigration consequences of his guilty pleas. We affirm.
The judge denied the first motion, without a hearing, and a panel of this court affirmed. Commonwealth v. Acosta, 85 Mass.App.Ct. 1127 (2014).
At the evidentiary hearing on the motion, plea counsel testified that he knew the defendant was not a citizen; rather, he was a legal permanent resident. In addition, plea counsel specifically advised the defendant that he “did not believe [the defendant] would be successful at trial,” and deportation was forthcoming either after “two years” in jail pursuant to a plea agreement, or after “ten years” if a plea agreement was not reached. Plea counsel testified that he made it clear that his conversation with the defendant, his girl friend, and mother, “centered around whether [the defendant would] do a short time in jail and then get deported or a very long time in jail and then get deported.”
Counsel testified that he advised the defendant: “[t]he plea would result in his deportation, removal from the government, ... [the defendant would] have to deal with what's at hand criminally, and then there will be a removal process and that will be done by the Immigration Department.”
The motion judge credited the testimony offered by counsel that he informed the defendant “that he definitely would be deported if he plead guilty to the reduced drug charge.” The motion judge concluded that the defendant's attorney “provided more than adequate representation to the defendant.” The defendant rightly acknowledges the motion judge is the final arbiter of witness credibility. See, e.g., Commonwealth v. Bresnahan, 462 Mass. 761, 775 (2012).
The motion judge also was the plea judge but he candidly admitted that he did not recall these particular pleas.
The defendant argues that his plea counsel's testimony at the evidentiary hearing was hypothetical because counsel, years after-the-fact, could not remember the exact words he said, and was “uncertain” and “indecisive.” It was for the motion judge to weigh the testimony as a whole and make his finding. That finding is well-supported by the record. Counsel's additional testimony as to his regular practice also supports the finding. Compare Commonwealth v. Quinones, 414 Mass. 423, 432, (1993) (“no impropriety ... in relying on a judge's customary practice in taking guilty pleas to reconstruct the record”). We discern no error.
To the extent that we do not address the defendant's other contentions, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Order denying second motion to vacate judgment affirmed.