Opinion
15-P-866
04-28-2016
COMMONWEALTH v. PEDRO F. AYALA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order allowing the defendant's motion to withdraw his admission to facts sufficient for a finding of guilt and for a new trial on the charge of possession with intent to distribute heroin based on ineffective assistance of counsel. We affirm.
Background. On July 2, 2007, the defendant was charged with trafficking in heroin and three motor vehicle violations. On October 9, 2008, the defendant admitted to facts sufficient for a finding of guilty on a reduced charge of possession of heroin with intent to distribute. The judge continued the case without a finding for three years and imposed conditions of probation. The drug charge was dismissed on October 11, 2011.
The judge entered a finding of responsible for one of the motor vehicle violations, and a finding of not responsible for the two remaining violations.
On May 8, 2014, the defendant moved to withdraw his plea and for a new trial. The defendant claimed that his attorney failed to advise him of the mandatory immigration consequences that would result from his admission to sufficient facts on the drug charge. According to the defendant, had he known that his plea would prevent him from becoming a lawful permanent resident of the United States, he would have negotiated a different disposition or proceeded to trial. After a nonevidentiary hearing on February 6, 2015, the motion judge allowed the defendant's motion. The Commonwealth's appeal followed.
Discussion. "A motion to withdraw a guilty plea is treated as a motion for a new trial," Commonwealth v. Furr, 454 Mass. 101, 106 (2009), and is "committed to the sound discretion of the judge." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). On review, we "determine whether the judge committed an abuse of . . . discretion or a significant error of law." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014).
"To prevail [on his motion to withdraw his plea], the defendant bears the burden of showing that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice because of his attorney's unprofessional errors." Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting from Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). The Commonwealth has conceded that defense counsel was ineffective for failing to advise the defendant that "presumptively mandatory deportation would have been the legal consequence of [admitting]" to sufficient facts on the drug charge. Commonwealth v. DeJesus, supra at 181. However, the Commonwealth argues that the judge failed to determine whether the defendant was prejudiced by counsel's deficient performance. We disagree.
"In the context of a guilty plea, in 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.'" Commonwealth v. Clarke, supra at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must "convince the court that [his] decision to reject the plea bargain would have been rational under the circumstances." Commonwealth v. Clarke, supra, quoting from Padilla v. Kentucky, 559 U.S. 356, 372 (2010). To satisfy this requirement,
"[T]he 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."Commonwealth v. Clarke, supra at 47-48 (citations omitted).
While the judge did not make explicit findings regarding prejudice, the record reflects that he considered "special circumstances" in the defendant's case that would have caused the defendant to place particular emphasis on the immigration consequences of his plea. See Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 600 (2012). Specifically here the judge credited the affidavits of the defendant and plea counsel, which averred that at the time of the defendant's plea he had resided in the United States for nine years, was in a long-term relationship with his girl friend, now wife, and was the provider for his minor son, a citizen of the United States, now diagnosed with autism. The judge was also made aware that the continuance without a finding on the drug charge rendered him inadmissible to the United States. The judge observed that "[w]hen you've lived in the United States for a number of years, you've had a family here, you have a wife, you have a child, they're going to stay here, and you have to go back to wherever it is you came from; that tugs at the human heart strings." The judge also heard and considered the Commonwealth's counter arguments regarding the strength of the evidence against the defendant and the lenient plea agreement. After balancing these considerations, he allowed the motion, implicitly concluding that the defendant's special circumstances would have caused him to pursue a different resolution or proceed to trial if he had been adequately advised. We cannot conclude, on the record before us, that this was an abuse of discretion. See Commonwealth v. Lavrinenko, 473 Mass. at 59 ("The prejudice determination rests on the totality of the circumstances, in which special circumstances regarding immigration consequences should be given substantial weight").
Order allowing motion to withdraw admission to sufficient facts and for new trial affirmed.
By the Court (Wolohojian, Kinder & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 28, 2016.