Opinion
15-P-1372
04-06-2017
COMMONWEALTH v. Kerby BAEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kerby Baez, appeals from an order of the Superior Court denying his motion to revise and revoke and/or for postconviction relief. The motion advances claims of ineffective assistance of counsel and deprivation of due process. Specifically, the defendant claims that his plea counsel failed to advise him of the immigration consequences of his plea and that misconduct at the State drug laboratory deprived him of due process. We discern no abuse of discretion or error of law in the judge's decision. We affirm.
Background. On September 20, 2013, the defendant pleaded guilty to the charge of possession with the intent to distribute heroin and was sentenced to a period of incarceration. The defendant's motion to revise and revoke and/or for postconviction relief, filed in August of 2014, was denied by the same judge who took the defendant's plea.
In support of the motion, the defendant filed an affidavit representing that he was not advised by his plea attorney that he would be deported if he pleaded guilty, and that had he known that he would be deported he "would have most likely chosen to take the case to trial." The Commonwealth's opposition included an affidavit from the defendant's plea attorney, which states in part that "[t]he subject of the mandatory consequences of deportation that would result from a conviction of [the offense] was discussed with the defendant and his family." The defendant did not submit any evidence to support his argument that misconduct at the State drug laboratory deprived him of due process. He argued in his motion that the misconduct of a State chemist, Annie Dookhan, was newly discovered evidence that had not been provided by the Commonwealth prior to his guilty plea and as such his plea was not knowing and voluntary. The opposition included a copy of the laboratory analysis relating to the drug crime to which he pleaded guilty, which showed that Dookhan was not involved as a chemist in the analysis of the drugs. The judge denied the motion for the reasons presented in the Commonwealth's opposition.
Discussion. 1. Standard of review. We review the judge's order for abuse of discretion or error of law. See Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015).
2. Denial of motion. We agree with the Commonwealth that the defendant's ineffective assistance of counsel argument conflates Mass.R.Crim.P. 29, 378 Mass. 899 (1979), and Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and that his argument is more properly framed in a rule 30(b) context. The defendant essentially contends that the denial of his motion constituted abuse of discretion and error of law. In adopting the prosecution's arguments as grounds for the denial of the defendant's motion, the judge ruled that there was no credible evidence in the defendant's self-serving affidavit to support his motion.
A motion judge is not obligated to credit the allegations of the defendant's affidavit, even if they are undisputed. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002). We grant "substantial deference" to a decision on a new trial motion "when the judge passing on the motion is the same judge who heard the plea." Commonwealth v. Grant, 426 Mass. 667, 672 (1998), S.C C., 440 Mass. 1001 (2003).
Although a claim of ineffective assistance is a serious one, we cannot say here that the judge abused his discretion in light of the inadequacy of the defendant's showing. A defendant does not show his entitlement to a new trial simply by offering unsupported assertions in his affidavit. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007). While the defendant's affidavit claims his counsel did not properly advise him of immigration consequences, the judge had the right to reject as not credible the defendant's uncorroborated self-serving affidavit. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) ; Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 15 (2006). The defendant's evidentiary showing is also considerably weakened by the Commonwealth's submission of an affidavit from plea counsel stating he had provided the defendant with the proper information regarding immigration consequences. Where the only evidence that plea counsel provided constitutionally deficient advice is from the defendant himself, whose credibility is undermined by self-interest, see Commonwealth v. Torres, 469 Mass. 398, 403 (2014), we discern no abuse of discretion or error of law in the judge's conclusion that there was no credible evidence that the defendant relied on inadequate advice of counsel regarding immigration consequences.
Likewise, where the defendant presented no evidence of chemist misconduct material to his case, we find no abuse of discretion or error of law in the judge's denial of the defendant's motion on due process grounds.
Order denying motion to revise and revoke and/or for postconviction relief affirmed.