Opinion
20-P-1337
07-30-2021
COMMONWEALTH v. Mohammed AL-MURAD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion for new trial, brought pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). He argues that he should have been permitted to withdraw his 2019 guilty pleas because his plea counsel was ineffective in failing to provide accurate advice regarding the immigration consequences of his pleas. We vacate the order denying the motion and remand the case for further proceedings.
The defendant also appeals from the denial of his motion to reconsider the denial of his initial motion. Because of our disposition, we do not separately consider or act on the denial of the motion to reconsider.
Background. The defendant, who was born in Iraq and has been a lawful permanent resident of the United States since 2015, was charged in 2019 with various offenses at two separate mosques. The charges were two counts of breaking into a depository and one count each of breaking and entering in the daytime with intent to commit a felony, larceny from a building, vandalism, disturbing the peace, and disorderly conduct. At the time of his October 1, 2019 guilty pleas, the defendant was already serving an eighteen-month committed sentence, based on a conviction after a jury trial of indecent assault and battery on a child under the age of fourteen (IAB on a child). An appeal from that conviction was pending.
The conviction was recently affirmed. See Commonwealth vs. Al-Murad, No. 20-P-1014 (May 21, 2021). An application for further appellate review was filed on July 2, 2021. See Commonwealth vs. Al-Murad, No. FAR-28316.
On October 1, 2019, the defendant offered to plead guilty to the breaking into a depository, breaking and entering, larceny, and vandalism charges. The Commonwealth proposed eighteen-month concurrent house of correction sentences to run from and after the IAB on a child sentence, plus payment of $1700 in restitution. The defendant proposed six-month concurrent house of correction sentences that would also run concurrently with the IAB on a child sentence, plus restitution. The judge informed the defendant that he would impose eighteen-month house of correction sentences, to run concurrently with each other and the IAB on a child sentence, with one year to serve, the balance suspended, and an order for restitution. Further, if the defendant paid the restitution within sixty days, the judge would entertain a motion to revise and revoke so as to reduce the sentences to one year committed, still to run concurrently with each other and the IAB on a child sentence, but without any further, suspended portion of the sentences. The disturbing the peace charge would be placed on file with the defendant's consent, and the vandalism and disorderly conduct charges would be dismissed.
After a full colloquy, including the immigration warning required by G. L. c. 278, § 29D, and a further warning about possible immigration consequences, the defendant agreed to accept the court's disposition. Subsequently, the defendant timely paid the required restitution, and his sentences were reduced to one year.
The judge stated, "The other thing I have to tell you, because of these convictions, if federal law requires it and if federal officials seek it, it is practically inevitable that you will be deported, denied naturalization or denied re-entry into the United States because of these convictions. Do you understand that?" The defendant replied, "Yes." The judge continued, "And your lawyer has discussed all of this with you?" The defendant again replied, "Yes."
In August of 2020, the defendant, represented by successor counsel, filed a motion for new trial, seeking to withdraw his guilty pleas, and arguing that plea counsel had been ineffective in failing to advise him about the pleas’ immigration consequences. Accompanying the motion was an affidavit from the defendant stating that (1) plea counsel had never advised him of such consequences; (2) the first time he had ever heard of them was during the plea colloquy with the judge; (3) he was still not sure whether the consequences would apply to him, since he had not spoken to plea counsel about them; and (4) had he known at the time that his pleas would result in convictions of "aggravated felonies" making his deportation "all but mandatory," he would not have pleaded guilty and instead would have gone to trial. Also accompanying the motion was an affidavit from successor counsel, detailing his conversations with and unsuccessful efforts to obtain an affidavit from plea counsel. According to successor counsel's affidavit, plea counsel neither expressly claimed to have advised the defendant about the pleas’ immigration consequences nor expressly denied having failed to do so.
The motion judge, who was also the plea judge, held a nonevidentiary hearing and then denied the motion without a written opinion. This appeal followed.
Discussion. "A postsentence motion to withdraw a plea is treated as a motion for a new trial." Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judge's decision denying such a motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We review an ineffective assistance of counsel claim under the two-prong analysis set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
1. Plea counsel's performance. Deportation (or removal) from the United States of a noncitizen who is convicted of an aggravated felony is "practically inevitable," Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 398 (2012), quoting Padilla, 559 U.S. at 364, or "presumptively mandatory." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 725 (2012), quoting Padilla, supra at 369. Accordingly, counsel "was obligated to provide to his client, in language that the client could comprehend, the information that presumptively mandatory deportation would have been the legal consequence of pleading guilty. Stated differently, counsel needed to convey that, if Federal authorities apprehended the defendant, deportation would be practically inevitable." Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014).
In places, Federal immigration law now uses the term "removal" instead of "deportation." See Padilla, 559 U.S. at 364 n.6.
Here, the defendant asserted that plea counsel had never done so, and successor counsel's affidavit could be read as supporting that position. Of course, a judge is not required to credit the defendant's affidavit or to hold a hearing on a motion for a new trial, even where nothing in the trial record directly contradicts the affidavit. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003) ; Commonwealth v. Rzepphiewski, 431 Mass. 48, 55-56 (2000). The judge here might have denied the motion for that reason. However, the record does not indicate that he did so, and we are unwilling to assume that this was the basis for his ruling. We therefore turn to the question whether, assuming plea counsel's performance was deficient, the defendant was prejudiced. If he was not, then the motion was properly denied.
At the motion hearing, the judge suggested that plea counsel, who had also represented the defendant on the charge of IAB on a child, might well have discussed with the defendant the immigration consequences of pleading guilty versus going to trial on that charge. But the judge stated that he was "not going to make any inference that there was such a conversation."
2. Prejudice. "[I]n order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ " Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). "At a minimum, this means that the defendant must aver that to be the case." Clarke, supra, citing Hill, supra at 60. "After establishing that a defendant has satisfied this baseline requirement, a judge should proceed in two steps." Commonwealth v. Lys, 481 Mass. 1, 7 (2018). First, the defendant "must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ " Clarke, supra at 47, quoting Padilla, 559 U.S. at 372. See Lys, supra at 7.
"To prove [rationality], the defendant bears the substantial burden of showing that (1) he had an ‘available, substantial ground of defence’ ... that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of ‘special circumstances’ that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (citations and footnote omitted).
Clarke, supra at 47-48. "If the defendant does establish at least one of the Clarke factors, then the judge must move to the second step and evaluate whether, under the totality of the circumstances, there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice." Lys, 481 Mass. at 7-8. See Commonwealth v. Lavrinenko, 473 Mass 42, 55, 59 (2015).
Here, the defendant's affidavit asserted that if he had been properly advised of the immigration consequences, he would not have pleaded guilty and instead would have gone to trial. The defendant argues that such a decision would have been rational based on the second and third Clarke factors, i.e., those relating to a different plea bargain and to special circumstances. We turn first to the special circumstances issue.
a. Special circumstances. The defendant's affidavit asserted that, when United States military forces invaded Iraq in 2003, his father and uncle agreed to help supply petroleum to a United States military base. Shortly thereafter, his uncle and the uncle's family were found murdered, and his parents were kidnapped; he had not heard from them since, and did not know what happened to them, but assumed they were dead. The defendant was sure that his uncle's murder and his parents’ kidnapping were a result of their cooperation with the United States military. In 2004, the defendant and his brother crossed into Syria, where they were accepted into a United Nations refugee program and spent five years there before traveling to Turkey. They came to the United States in 2014. The defendant is "scared to return to Iraq because it is not safe," he believes that if he is "sent back to Iraq [he] will be killed by the same people responsible for murdering [his] uncle and killing [his] parents," and he has "no contacts left in Iraq," having left there when he was nineteen years old.
At the motion hearing, the judge did not address or state whether he credited these allegations. If credited, they could support a finding that the defendant placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty. See Clarke, 460 Mass. at 47-48. "[T]he decision whether to plead guilty ... involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive (citation omitted)." Lys, 481 Mass. at 11, quoting Lee v. United States, 137 S. Ct. 1958, 1966 (2017).
Of course, "[t]he existence of special circumstances does not automatically result in prejudice.... [T]he ultimate question of prejudice [is] whether there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice." Lys, 481 Mass. at 10. This determination "rests on the totality of the circumstances, in which special circumstances regarding immigration consequences should be given substantial weight.’ " Id., quoting Lavrinenko, 473 Mass. at 59.
Among Lavrinenko’s "nonexhaustive list of potential factors," reaffirmed in Lys, is "the defendant's deportability on acquittal." Lys, 481 Mass. at 11. That factor would appear to be relevant here, where, at the time of the pleas, the defendant had already been convicted of IAB on a child, an "aggravated felony" under Federal immigration law, making him deportable. 8 U.S.C. §§ 1101(a)(43)(A) (2018), 1227(a)(2)(A)(iii) (2018). Although the defendant's direct appeal from that conviction was then pending, the chance of losing that appeal -- and thus the chance of being saddled with the immigration consequences of an aggravated felony conviction regardless of whether the defendant went to trial on the mosque-related charges at issue here and was acquitted -- would be relevant to whether a reasonable person would have " ‘roll[ed] the dice’ and opt[ed] for a trial," risking a longer prison sentence if convicted. Chleikh, 82 Mass. App. Ct. at 729. See Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 444 (2014). See also Lys, supra at 11 n.8 (referring to defendant's option as "a Hail Mary" pass). "A defendant who can eliminate the risk of deportation through an acquittal is more likely to insist on going to trial than a defendant who is deportable regardless of the outcome at trial." Lavrinenko, 473 Mass. at 59 n.20.
Indecent assault and battery is also a crime involving moral turpitude, see Maghsoudi v. Immigration & Naturalization Serv., 181 F.3d 8, 15 (1st Cir. 1999), rendering the defendant deportable under 8 U.S.C. § 1227(a)(2)(A)(i) (2018). As discussed infra, however, the immigration consequences of an aggravated felony conviction are more extensive than those flowing from a conviction of a crime involving moral turpitude.
As mentioned supra, the defendant did not prevail on his appeal from the IAB on a child conviction. What matters, however, are the circumstances "at the time of [the defendant's] plea." Clarke, 460 Mass. at 49.
We do not intend this observation as any suggestion of how the special circumstances inquiry might ultimately be resolved. We determine only that the defendant has raised a sufficient issue regarding special-circumstances prejudice such that, absent findings on plea counsel's performance, we are left unable to say with confidence that the defendant has not shown ineffective assistance of counsel. A remand for further findings is therefore necessary.
b. Different plea bargain. The defendant also contends that the claimed lack of advice about immigration consequences prejudiced him because, had he been properly advised, "there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time." Clarke, 460 Mass. at 47. As we understand his argument, the defendant does not claim that he could have negotiated a plea bargain that would have avoided making him deportable; it appears quite unlikely that he could have reached an agreement that would have allowed him to avoid pleading guilty to larceny, a crime involving moral turpitude that would render him deportable. See Commonwealth v. Valdez, 475 Mass. 178, 189 (2016) (immigration authorities are likely to consider larceny "a crime of moral turpitude"). See also note 6, supra. Rather, the defendant focuses on the possibility of an agreement that would avoid any conviction of an aggravated felony, because such a conviction would go beyond merely making him deportable, see 8 U.S.C. § 1227(a)(2)(A)(iii), and have the further consequence of depriving him of two opportunities to seek relief from deportation.
The defendant's argument first requires some understanding of what makes a felony an aggravated felony under immigration law. As most relevant here, "a theft offense ... or burglary offense for which the term of imprisonment [sic ] at least one year" is an aggravated felony. 8 U.S.C. § 1101(a)(43)(G) (2018). It is evident that a word or phrase is missing between the words "imprisonment" and "at." But all five Federal circuit courts of appeals to have faced the issue have agreed that "the phrase ‘term of imprisonment’ in § 1101(a)(43)(G) refers to the actual sentence imposed." United States v. Asencio-Perdomo, 674 F.3d 444, 446–447 (5th Cir. 2012) (citing decisions by Second, Third, Ninth, and Eleventh Circuits). And the identical phrase, "for which the term of imprisonment at least one year," as appearing in the preceding subclause, 8 U.S.C. § 1101(a)(43)(F), has been interpreted as referring to an offense "for which one is sentenced to at least one year of imprisonment" (emphasis added). Gordon, 82 Mass. App. Ct. at 397.
The defendant's argument next requires discussion of two additional consequences of an aggravated felony conviction. The defendant argues that his aggravated felony convictions bar him from applying for asylum, whereas, absent those convictions, he could still have applied for asylum at the time of the pleas, under a regulatory exception to the usual one-year filing deadline for asylum applications. See 8 U.S.C. § 1158(a)(2)(B) (2018) ; 8 U.S.C. § 1158(b)(2)(A)(ii) (2018) ; 8 U.S.C. § 1158(b)(2)(B)(i) (2018) ; 8 C.F.R. § 208.4(a)(5)(iv) (2018). Second, he argues that his aggravated felony convictions bar him from applying for "withholding of removal" under the United Nations Convention Against Torture (CAT), see 8 C.F.R. § 208.16(c)(1) (1999) ; 8 C.F.R. § 208.16(d)(2) (1999) ; 8 U.S.C. § 1231(b)(3)(B) (2018), leaving him only the possibility of obtaining less protective relief known as "deferral of removal." 8 C.F.R. § 208.17 (1999). The Commonwealth has not disputed these assertions, and we assume for the purposes of this appeal, without deciding, that they are correct.
The defendant originally asserted a third such consequence: that an aggravated felony conviction would render him ineligible for cancellation of removal. See Valdez, 475 Mass. at 189, citing 8 U.S.C. § 1229b(a) [(3)] (2000). The defendant now concedes that, because he had not resided continuously in this country for seven years, he was ineligible for such cancellation in any event. See 8 U.S.C. § 1229b(a)(2) (2000).
Nor has the Commonwealth seriously disputed that these consequences of an aggravated felony conviction are the sorts of "truly clear" immigration consequences about which competent counsel must advise their clients. See Padilla, 559 U.S. at 369 ; Clarke, 460 Mass. at 42. The defendant's position that they are finds support in Lavrinenko, 473 Mass. at 54, where the court concluded that counsel performed deficiently in failing to ascertain whether his client was a refugee and offer advice that took that status into account. The defendant did not argue that proper advice would have allowed him to avoid a plea that made him deportable. See id. at 62-63. Rather, he pointed to what the court agreed was a different, but "clear immigration consequence of [his] plea[:] ... the substantial risk that he would lose a viable opportunity for discretionary relief" in the form of a waiver of inadmissibility. Id. at 62. This "consequence [was] no less clear because it [was] a risk rather than a certainty." Id. at 63 n.25. The Commonwealth does not make any persuasive argument that the immigration consequences the defendant relies upon here -- relative to an asylum application and withholding or deferral of removal under the CAT -- are any less "truly clear" than the consequence at issue in Lavrinenko. We therefore assume for purposes of this appeal -- without intending to foreclose reexamination of the point on remand -- that, if plea counsel here failed to advise the defendant of those consequences, his performance would have been deficient.
Against this backdrop, the defendant argues that he could have negotiated an agreement to plead guilty to the same crimes, and to serve as much committed time as under the sentence actually imposed here (eighteen months, later reduced to one year), or even more committed time, without incurring a conviction for an aggravated felony. So long as he received no longer than a 364-day sentence on any one offense, the defendant argues, he could have agreed to serve consecutive sentences that would have totaled one year, or considerably more than one year, and still be protected from the consequences of an aggravated felony conviction.
This argument finds support in Gordon, 82 Mass. App. Ct. at 399-401, where the court held that counsel performed deficiently in failing to advise the defendant that a 364-day instead of a one-year sentence would have avoided an aggravated felony conviction with its more severe immigration consequences. "[A] plea bargain for a sentence of less than one year on [one of the charges], with different deportation consequences as a matter of law, may have been a reasonable probability given the overall sentence he received, and so it may have been rational for him to reject the one-year sentence on [that charge] .... The defendant has therefore raised a substantial issue as to prejudice" and "[o]n remand, he bears the burden of establishing prejudice." Id. at 401. Compare Chleikh, 82 Mass. App. Ct. at 728 (distinguishing this aspect of Gordon ).
To be sure, the judge here commented at the motion hearing that "even if [the parties had] agreed to [a 364-day sentence], there's no guarantee I would have done it given what had transpired on the prior case and given the egregious [nature] of these [breaking and entering charges]." The judge further noted:
"[There was a] very, very, very slim chance in any event that I would have crafted any disposition around immigration consequences be it a 364-day sentence or three seven-month sentences consecutive. And it's even less likely given the fact that he was in jail at the time when he did these pleas doing an [eighteen]- month sentence on that case."
The judge did not, however, definitively say that he would not have approved a plea agreement providing for the defendant to serve more time than the sentence the judge actually imposed. Nor did the judge comment upon what sentencing or other goal it would serve to decline to impose such a sentence, in favor of a shorter sentence that would have the additional consequence of subjecting the defendant to more severe immigration consequences. We therefore do not regard the judge as having finally resolved that the defendant could not have negotiated a plea agreement that would have avoided such consequences.
Because the case must be remanded in any event on the performance and special circumstances issues, the defendant may, on remand, also pursue his argument on the plea agreement issue. The defendant will, of course, retain the burden of establishing that he could have negotiated an agreement more favorable from an immigration standpoint. See Gordon, 82 Mass. App. Ct. at 401.
Conclusion. The order denying the defendant's motion for new trial is vacated, and the matter is remanded to the District Court for the judge to make further findings, and, in his discretion, to hold an evidentiary hearing, on the issues discussed herein in accordance with this memorandum and order.
So ordered.
vacated and remanded