Opinion
16-P-320
07-26-2017
COMMONWEALTH v. Odailton A. CORDEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order allowing the defendant's motion to vacate an admission to sufficient facts on a charge of possessing a class B drug. The judge, who was not the plea judge, allowed the motion in a margin endorsement without an evidentiary hearing. For the reasons that follow, we agree that the motion was allowed in error.
Background. In April, 2008, a criminal complaint issued in the District Court charging the defendant with (1) possession with intent to distribute a class B drug, and (2) conspiracy to violate the drug laws. On October 28, 2008, following a colloquy, a judge accepted the defendant's admission to facts sufficient to warrant a finding of guilt on a lesser included offense of possessing a class B drug. The conspiracy charge was dismissed at the Commonwealth's request, and the defendant signed a tender of plea form in which he acknowledged that his plea may have the consequence of denial of naturalization if he is not a United States citizen. Plea counsel and the judge also certified that they had advised the defendant of the potential immigration consequences of his plea. The case was continued without a finding for six months and the possession charge was then dismissed.
In 2012, the defendant married an American citizen. Three years later, he discovered that he cannot adjust his status to that of a lawful permanent resident because of his 2008 admission. On June 8, 2015, the defendant moved pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), to vacate his admission to sufficient facts. He claimed that he was not advised of the immigration consequences of the plea, and that "[t]here has been a significant unforeseen change of circumstances by his admission to sufficient facts." The motion was supported by affidavits from the defendant and from plea counsel. Plea counsel states that he advised the defendant of potential immigration consequences of his plea; however, he "failed to provide [the defendant] with a specific warning as to the potential of the plea causing him not to be able to adjust his status" because, "[a]t the time," the defendant was a "young man" who "had no likelihood of marrying and starting a family." In his affidavit, the defendant avers that plea counsel advised him "that even pleading to the lesser charge could have an impact regarding [his] ability to obtain legal status in the United States." However, he "was not aware that [adjusting his status following] a marriage to a United States citizen would be absolutely and forever precluded by such a plea."
The defendant was eighteen years old in 2008.
After hearing oral arguments, the motion judge, who, as we have said, was not the plea judge, allowed the defendant's motion in a margin endorsement. He made no findings except that the motion was allowed "in the interest of justice." The Commonwealth's motion to reconsider was denied without findings, again in a margin endorsement.
The plea judge had retired.
Discussion. A defendant contending that he has been deprived of the effective assistance of counsel must demonstrate that "there has been serious incompetency, inefficiency, or inattention of counsel" which "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, "a claim of ineffective assistance is directed to counsel's representation incident to a guilty plea, the second prong of the Saferian test requires a defendant to show ‘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. Pike, 53 Mass. App. Ct. 757, 762 (2002), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). In applying this test, we now consider "whether the defendant was prejudiced by the ‘denial of the entire judicial proceeding ... to which he had a right.’ " Lee v. UnitedStates, No. 16-327, slip op. at 6 (U.S. June 23, 2017) (Lee ), quoting from Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000).
Applying our familiar standard of review, see Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), we conclude that, on this record, the motion judge abused his discretion in ruling that the defendant satisfied his burden of showing prejudice. Unlike in Lee, where it was clear from the transcript of the colloquy that the defendant was concerned about deportation, this defendant has presented no "contemporaneous evidence to substantiate [his now-]expressed preference[ ]" of being able to adjust his status. Lee, supra at 10. Instead, it is clear from the affidavits here that denial of naturalization was not "the ‘determinative issue’ for [the defendant] in plea discussions." Id. at 12. The defendant does not state that he would have gone to trial but for plea counsel's advice, he "has not addressed why he would have benefited from going to trial, and he has made no claim of innocence." Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581 (2001).
We also conclude that the defendant did not satisfy his burden of showing ineffective assistance of counsel, see Commonwealth v. Vargas, 475 Mass. 338, 358 (2016), where the affidavits submitted in support of the motion to vacate "merely reflect counsel's purported failures and do not establish that ‘better work might have accomplished something material for the defense.’ " Commonwealth v. Marinho, 464 Mass. 115, 129 (2013), quoting from Commonwealth v. Dargon, 457 Mass. 387, 403 (2010).
There is no transcript of the defendant's plea hearing, and he has not reconstructed the record pursuant to Mass.R.A.P.8(c), as amended, 378 Mass. 932 (1979). "When a motion for a new trial is based on facts that are not apparent from the face of the record, the defendant has the burden of proving such facts."Commonwealth v. Lys, 91 Mass. App. Ct. 718, 721 (2017).
"At a minimum, ... the defendant must aver that to be the case." Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). See Commonwealth v. DeJesus, 468 Mass. at 183.
Seven years after entering into a plea that enjoys a "presumption of regularity," Commonwealth v. Valdez, 475 Mass. 178, 183 (2016), the defendant bore the burden of "provid[ing] sufficient credible and reliable factual evidence in support of" his motion to vacate that plea. Commonwealth v. Lopez, 426 Mass. 657, 663 (1998). On this record he has not done so, and the judge's ruling to the contrary was error. Contrast Commonwealth v. Sylvain, 473 Mass. 832, 839 (2016) (no error in relying on affidavits in granting new trial motion where affidavits "provide a sufficient factual basis to support the ruling"). The order allowing the motion to vacate the defendant's admission to sufficient facts is vacated, and a new order shall enter denying the motion.
The defendant's motion here was made pursuant to Mass.R.Crim.P. 30(b), rather than G.L.c. 278, § 29D.
We note that nothing precludes the defendant from filing subsequent motions to vacate the plea.
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So ordered.
Vacated; new order entered.