Opinion
12-P-1315
03-07-2017
COMMONWEALTH v. Ines Y. BISONO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Ines Y. Bisono, pleaded guilty to possession with intent to distribute cocaine on December 20, 1996. On May 10, 2012, the defendant filed a motion for new trial, seeking to withdraw her plea. The motion was denied without evidentiary hearing after careful consideration by the motion judge, who was not the plea judge. The defendant filed an amended motion for new trial on March 20, 2014, which was denied without hearing by the same judge. The original and amended motions contained nearly identical claims, each arguing that the plea judge failed to adequately notify the defendant of the immigration consequences of her plea, pursuant to G. L. c. 278, § 29D, and that plea counsel provided ineffective assistance in failing to advise her of the immigration consequences of the plea.
We note that the motion judge is now a justice of this court.
We consolidated the appeals from the orders denying the two motions, and affirmed the orders in an unpublished decision. See Commonwealth v. Bisono , 88 Mass. App. Ct. 1103 (2015). The defendant sought further appellate review. On October 3, 2016, the Supreme Judicial Court denied the defendant's application for further review without prejudice, remanding the case to this court for reconsideration "in light of Commonwealth v. Mercado , 474 Mass. 80 (2016)." After reconsideration, we vacate the orders denying the defendant's motions for new trial, and remand for further findings.
In our initial review of this case, we determined that the defendant's claim of ineffective assistance of counsel, which relied primarily on Commonwealth v. Sylvain , 466 Mass. 422 (2013), was unavailing, as that avenue of collateral attack was available only to defendants "whose State law convictions were final after April 1, 1997." Id . at 424. Subsequently, the Supreme Judicial Court announced its decision in Mercado , extending the retroactivity of Sylvain to April 24, 1996. Mercado , supra at 81-82. Because this encompasses the date of the defendant's plea, the defendant is now entitled to substantive review of her ineffective assistance claim.
In order to make out her claim of ineffective assistance of counsel, the defendant bears the burden of demonstrating that her attorney's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer" and that this conduct "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). In the context of a plea, in order to demonstrate prejudice, the defendant must establish both that "there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial" and that "a decision to reject the plea bargain would have been rational under the circumstances." Sylvain , supra at 438, quoting from Commonwealth v. Clarke , 460 Mass 30, 47 (2011). In order to prove the latter proposition, a defendant must show: (1) that she had an " ‘available, substantial ground of defence’ ... that would have been pursued if [s]he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain"; (2) that "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 [s]he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke , supra at 47-48, quoting from Hill v. Lockhart , 474 U.S. 52, 60 (1985).
As to the performance prong of Saferian , the defendant provided affidavits from plea counsel as well as her own affidavits in support of her motions for new trial. In relevant part, plea counsel averred that he "[did] not believe that [he] inquired about [the defendant's] immigration status" and "[did] not believe that [he] discussed the possible immigration consequences with [the defendant] outside of advising her that when she entered her plea the judge would read her the statutorily required warning regarding possible immigration consequences." The defendant averred that she had "no memory" of plea counsel asking her about her immigration status or advising her of her immigration rights.
Unfortunately, in considering that claim below, the motion judge did not have the benefit of Mercado , and so was not aware of the need to make specific findings related to the adequacy of counsel's performance. "Such fact finding is necessary to resolve the performance prong of the Saferian analysis." Commonwealth v. Henry , 88 Mass. App. Ct. 446, 454 (2015).
As to prejudice, the defendant rests her claim solely on the so-called "special circumstances" prong of Clarke . The defendant averred in her affidavit that she has lived in the United States since 1984, and has had no other criminal cases. She stated that her parents "were here on green cards and have become naturalized citizens," and that she presently has two children. She stated that if she were aware of the immigration consequences of the plea, she "would not have [pleaded] guilty to possession with intent to distribute, but would have gone to trial or asked [her attorney] to negotiate a disposition that would not have resulted in such [immigration consequences]."
There is no indication that the defendant had children at the time of the plea.
The defendant did not proffer any evidence that a lesser disposition would have been available by agreement and did not so argue in her motions or on appeal.
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The motion judge found that the defendant had failed to demonstrate that it would have been rational to proceed to trial "in light of the strength of the evidence against her and the lenient plea agreement negotiated on her behalf"; however, in order to resolve the question of prejudice, we further require "findings of fact that address the defendant's specific contentions, particularly regarding special family circumstances." Henry , supra at 457.
We accordingly vacate the orders denying the defendant's motion for new trial and amended motion for new trial, and remand the matter to the Superior Court for further consideration and findings as to counsel's performance and any prejudice arising therefrom. The judge may, in his discretion, hold an evidentiary hearing on the defendant's motions for such purposes.
So ordered .
Vacated and remanded.