Opinion
No. 12–P–755.
2013-02-27
COMMONWEALTH v. Adilson M. BARBOSA.
“The defendant has not shown that it would have been a more rational decision to go to trial, where he was facing a likely conviction, far more committed time, and the same deportation consequences that he now faces.” Commonwealth v. Chleikh, 82 Mass.App.Ct. at 729. 3
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Adilson M. Barbosa, claims that he received ineffective assistance of counsel when pleading guilty to a reduced charge of possession of a class B substance (cocaine). He was sentenced to a term of probation for one year to be served concurrently with another probation sentence he was serving.
The defendant was originally charged with possession of a class B substance with intent to distribute, and a drug violation in a school zone.
The burden of demonstrating ineffective assistance of counsel is on the defendant, who must show (1) “[that] counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense.” Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
This scenario was refined for cases like this in Commonwealth v.. Clarke, 460 Mass. 30 (2011), which we later addressed in Commonwealth v. Chleikh, 82 Mass.App.Ct. 718, 725–726 (2012):
The present case was briefed pursuant to Commonwealth v. Clarke, which held that Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applied to convictions obtained after April 1, 1997. Clarke, supra at 34–45. While the defendant's appeal was under review, the United States Supreme Court issued its decision in Chaidez vs. United States, No. 11–820 (U.S. Feb. 20, 2013), holding that Padilla announces a new rule, and thus does not apply where, as here, the defendant's conviction became final prior to Padilla. Whether considered under the Chaidez standard or the more generous Padilla/Clarke standard, the result we reach is the same.
“ Clarke ... held that in order for a defendant to demonstrate that he was prejudiced by counsel's ineffective representation, the defendant would have to prove that it would have been a rational decision on his part to reject the government's plea bargain and proceed to trial.... Specifically, the court held that a defendant has the ‘substantial burden’ of proving (1) that he had a substantial defense available to him; (2) that there was a reasonable probability that he could have negotiated a different plea bargain; or (3) that the presence of special circumstances support the conclusion that he would have placed additional emphasis on immigration consequences in deciding whether to plead guilty.”
Here, the defendant, who apparently had a somewhat lengthy record, received an extremely favorable result in a case that was exceedingly strong for the Commonwealth. He both signed the “green sheet” and was advised of his alien rights orally by the judge. The judge who conducted the plea hearing also heard the motion to vacate, and, having the guidance of Clarke, discounted, as was his right, the evidence placed before him.
Given the strength of the case against the defendant, it is difficult to ascertain what more could have been done by counsel. Indeed, he achieved an outstanding result for his client. It is also difficult to ascertain any other course of action other than what was done here. As in Clarke, supra at 48:
“The record in this case suggests that the driving factor in the defendant's decision to plead guilty was the avoidance of the mandatory minimum jail (or prison) sentences that would have attached to the ... school zone charge [ ] that [was] subsequently dismissed as part of the plea bargain.”
“The defendant has not shown that it would have been a more rational decision to go to trial, where he was facing a likely conviction, far more committed time, and the same deportation consequences that he now faces.” Commonwealth v. Chleikh, 82 Mass.App.Ct. at 729.
We likewise find no merit in the defendant's second claim that the judge abused his discretion in not conducting an evidentiary hearing, see Commonwealth v. Lopez, 426 Mass. 657, 663 (1998), especially since it was not pressed at the hearing.
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Order denying renewed motion to withdraw guilty plea affirmed.