Opinion
16-P-634
04-20-2017
COMMONWEALTH v. James CRIBB.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James Cribb, was born in Haiti and came to the United States at the age of ten. He became a legal resident, but not a citizen of the United States. On June 25, 2007, the defendant admitted to sufficient facts to support a charge of possession with intent to distribute cocaine. The case was continued without a finding until December 24, 2008, at which time the charge was dismissed. Approximately seven years later, the defendant filed a motion to withdraw his plea, claiming that his lawyer provided him with ineffective assistance by failing to inquire into his immigration status and by giving him incorrect advice regarding the immigration consequences of his plea. In his affidavit submitted in support of his motion, the defendant averred that he did not know that the disposition of his case, i.e., an admission to sufficient facts, would render him "deportable" and "inadmissible." In the absence of proper advice, the defendant claims, he could not have tendered a knowing and voluntary plea. Following a nonevidentiary hearing, at which the defendant was not present because he had been deported, the plea judge denied the motion in an endorsement order. This appeal ensued.
The defendant also submitted an affidavit from trial counsel, who had no memory of the defendant's case.
The defendant's affidavit also states that almost all of his family lives in the United States and that at the time of the plea he "would have done virtually anything to avoid deportation to Haiti."
A defendant seeking to withdraw his plea on the basis of ineffective assistance of counsel has the burden of demonstrating that there was "serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Britto, 433 Mass. 596, 601 (2001), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant also must show that "the consequence of counsel's serious incompetency [was] prejudicial." Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011). Where, as here, the ineffective assistance of counsel claim is based on an allegation that counsel provided inaccurate advice regarding the immigration consequences of a plea, the prejudice prong requires the defendant to "establish[ ] 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.’ " Id. at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
We agree with the Commonwealth that the defendant has not met his burden. To begin with, the record belies the defendant's claim that he was unaware of potential adverse immigration consequences. In several places the docket sheet reflects that the defendant received "deportation" warnings. First, the second page of the docket sheet is stamped: "Deportation Warning Given." Next, the docket reflects that the defendant's admission to sufficient facts was "accepted after colloquy and 278 § 29D warning." Third, the clerk's handwritten docket entry states that the case was continued from April 13, 2007, to June 25, 2007, to allow the "defendant to speak with immigration." In addition, the "green sheet" contains the plea judge's certification that he provided an immigration warning. Trial counsel and the defendant also attest, by way of signature on the green sheet, that the statutory alien warnings as required under G. L. c. 278, § 29D, were given.
In these circumstances, the judge was entitled to reject the defendant's self-serving affidavit, see Commonwealth v. Grant, 426 Mass. 667, 673 (1998), S.C., 440 Mass. 1001 (2003), and conclude that the defendant had received accurate advice from counsel and had been advised of the consequences. For the same reasons, the judge did not abuse his discretion in determining that the defendant's decision to accept the disposition was knowing and voluntary. Accordingly, the order denying the defendant's motion to withdraw his guilty plea is affirmed.
Given our conclusion that the defendant did not meet his burden of showing that counsel's representation fell measurably below that which might be expected from an ordinary fallible lawyer, we need not address the question whether the defendant was prejudiced. We note, however, that even if we were to conclude that counsel had been incompetent, the defendant has not met his burden of proving that it would have been a rational decision on his part to reject the plea bargain and proceed to trial. He has not shown that he had any available defenses to the Commonwealth's case against him or that he could have negotiated a different plea bargain. See Commonwealth v. Clarke, supra at 47-48. Additionally, although the defendant's affidavit supports his connection to the United States, it is not apparent that those connections "warrant a rational willingness to 'roll the dice' and opt for a trial, rather than to accept a plea bargain." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 729 (2012).
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So ordered.
Affirmed.