Opinion
22-P-197
10-03-2022
COMMONWEALTH v. HECTOR MATOS CRUZ.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 1998, the defendant, Hector Cruz, pleaded guilty to distribution of a controlled substance in violation of G. L. c. 94C, § 32A (a). Over twenty years later, in 2020, he filed his third motion for a new trial seeking to withdraw his guilty plea, which is the motion currently before us on appeal. He claimed (1) that plea counsel was ineffective in failing to warn him of the immigration consequences of his plea, and (2) that there was insufficient evidence that the plea judge provided the immigration warnings required under G. L. c. 278, § 29D. The motion was denied, and the defendant appeals. We affirm.
Background.
In September of 1998, Billerica police officers received an anonymous phone tip that someone named "Bob" was selling illegal narcotics. An undercover officer contacted a pager number that the tipster provided, received a call back from "Bobby," and arranged to purchase $200 worth of cocaine. The officer went to the location at which he and Bobby arranged to meet, after which the defendant arrived, identified himself as Bobby, and sold the officer two bags of cocaine. The officer also observed an additional six bags of what appeared to be cocaine in the defendant's vehicle. Two months later, the defendant pleaded guilty to distribution of a controlled substance in violation of G. L. c. 94C, § 32A (a).
Nearly sixteen years later, in May of 2014, the Department of Homeland Security detained the defendant upon his re-entry to the United States from the Dominican Republic. The defendant was placed into removal proceedings because of his 1998 guilty plea. Over the next six years, the defendant filed three motions for a new trial seeking to vacate his plea. Although only the third is before us, we summarize the others to aid our discussion.
In his first motion for a new trial, heard in November of 2017, the defendant sought to vacate his guilty plea on the basis that his plea counsel was ineffective for failing to advise him of his plea's immigration consequences. The motion judge, who was not the plea judge, denied the motion after a nonevidentiary hearing, concluding that the defendant had not shown that he was prejudiced by any purported ineffectiveness of plea counsel, as required under Commonwealth v. Clarke, 460 Mass. 30 (2011).
The defendant's second motion for a new trial, filed in December of 2018, asserted the same grounds as his first. [This time, however, the defendant attempted to show prejudice by focusing on the third prong identified in Clarke -- that is, that the defendant's purported strong ties to the United States amounted to "special circumstances," such that he would have rejected the plea due to its immigration consequences and gone to trial. The same motion judge denied the motion after an evidentiary hearing, finding that the defendant had not demonstrated special circumstances.
In July of 2020, the defendant filed the subject "supplemental" motion for a new trial (his third) in which he renewed his ineffective assistance claim and also, for the first time, argued his plea should be vacated because there was no evidence that he was given the immigration warnings required under G. L. c. 278, § 29D. The defendant averred in an affidavit that he did "not recall" plea counsel advising him of the immigration consequences of his plea, and that he did "not know if the trial court gave any immigration warnings." However, the defendant's materials also included the docket sheet, and in the docket sheet there is a hand-notated checkmark in the box labeled "Guilty Plea or Admission to Sufficient Facts accepted after colloquy & 278 § 29D warning."
The same motion judge denied this third motion on July 30, 2020, without a hearing, concluding that the defendant had not demonstrated the facts required to show prejudice under any of the three prongs of Clarke. The judge's ruling, however, did not mention the defendant's G. L. c. 278, § 29D argument.
The defendant appealed the denial arguing, among other things, that the motion judge had never addressed his G. L. c. 278, § 29D argument. That is the appeal now before us but, before briefing was complete, the Commonwealth sought a stay of appellate proceedings in order to seek additional rulings in the trial court. The stay was granted by a single justice, and the case returned to the trial court for a further hearing. After a hearing on the Commonwealth's motion, the motion judge entered a further order on August 13, 2021. She concluded that there was a sufficient record that the plea judge provided the required immigration warnings under G. L. c. 278, § 29D, based upon the notation on the defendant's docket sheet and the defendant's tender of plea form (known as a "green sheet") on which the plea judge certified that the warnings were given. The defendant appealed this ruling as well, and his two appeals were consolidated.
The plea judge certified that:
"[T]he defendant was informed and advised that if he or she is not a citizen of the United States, a conviction of the offense with which he or she was charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
Discussion.
1. G. L. c. 278, § 29D warnings.
The defendant claims that he "does not recall" the plea judge providing him with the G. L. c. 278, § 29D immigration warnings at his hearing in 1998, and argues that we should presume that the defendant did not receive them because the record is devoid of such proof. Reviewing under the error of law or abuse of discretion standard, Commonwealth v. Lewis, 96 Mass.App.Ct. 354, 357 (2019), we disagree.
We note at the outset that the defendant's appeal presents serious issues of both waiver and direct estoppel, but that those issues have not been argued to us on appeal. The defendant first raised his G. L. c. 278, § 29D argument over twenty years after his plea, in his third motion for a new trial. Ordinarily, "a defendant must assert all reasonably available grounds for postconviction relief in his first [motion for a new trial], or those claims are lost." Commonwealth v. Deeran, 397 Mass. 136, 139 (1986). Moreover, "[t]his waiver rule applies equally to constitutional claims," such as the defendant's ineffective assistance claim, "which could have been raised, but were not raised, in the defendant's original motion." Id. And even if waiver would not bar the defendant's ineffective assistance claim, it appears that direct estoppel could have barred some or all of it. The "doctrine of direct estoppel prevents [parties] from relitigating . . . issue[s] that already ha[ve] been litigated and decided between [them]." Commonwealth v. Watkins (No.1), 486 Mass. 801, 806 n.8 (2021). The defendant's ineffective assistance claim was litigated and rejected -- twice -- due to insufficient showings of prejudice. It is true that waiver, at least, may not apply if the motion judge affirmatively chooses to address the issue and concludes that "a miscarriage of justice might otherwise result." Commonwealth v. Watson, 409 Mass. 110, 112 (1991). Furthermore, although we are concerned about these waiver and direct estoppel implications, the Commonwealth has not argued waiver, and argues direct estoppel only as to a subset of the defendant's ineffective assistance claim (which we address further in note 6, infra). We therefore proceed to the merits.
At the time of the defendant's plea in 1998, G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254, required a judge to advise the defendant that:
"If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
The statute also provided that failure to give these warnings "shall" result in a vacation of any guilty plea and that, "[a]bsent a record that the court provided the advisement . . ., the defendant shall be presumed not to have received [it]." Id. The Commonwealth bears the burden of establishing a record that the warnings were given, regardless of how much time has passed since the defendant's guilty plea. See Commonwealth v. Marques, 84 Mass.App.Ct. 203, 204-205 (2013). "The statute in effect here does not compel production of 'the official record of the plea hearing' but 'only "a record that the court provided the advisement."'" Commonwealth v. Diaz, 75 Mass.App.Ct. 347, 351 (2009), quoting Commonwealth v. Rzepphiewski, 431 Mass. 48, 52 (2000); G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254.
Here, there is a record sufficient to demonstrate that the immigration warnings were given. See, e.g., Commonwealth v. Cortez, 86 Mass.App.Ct. 789, 790 n.6 (2014). The court's docket sheet contains a hand-notated checkmark indicating that his guilty plea was accepted "after colloquy & 278 § 29D warning." The caselaw holds, and indeed the statute now provides, that such docket sheet entries suffice to create a record that the warnings were given. See, e.g., Diaz, 75 Mass.App.Ct. at 351. See also Commonwealth v. Podoprigora, 46 Mass.App.Ct. 928, 929 (1999) ("docket sheets are part of the court records and may be presented as prima facie evidence of the facts recorded therein"). Furthermore, the so-called "green sheet" upon which the motion judge relied in denying the defendant's motion contained a "judge's certification," signed by the plea judge, which certified that "the defendant was informed and advised" of the immigration consequences of his plea and which included the language required under G. L. c. 278, § 29D, as appearing in St. 1996, c. 450, § 254. This is a sufficient record that the warnings were provided. See Cortez, 86 Mass.App.Ct. at 790 n.6.
See G. L. c. 278, § 29D, as appearing in St. 2004, c. 225, § 1 ("an official record or a contemporaneously written record kept in the court file that the court provided the advisement as prescribed in this section, including but not limited to a docket sheet that accurately reflects that the warning was given" [emphasis added]).
The defendant relies on Commonwealth v. Marques, 84 Mass.App.Ct. 203 (2013), but Marques is distinguishable. Indeed, in Marques, supra at 205-206, we held that the same type of docket notation and green-sheet certification that are in the record here sufficed to overcome the presumption of nonadvisement. We nonetheless reversed the trial court's denial of the motion to vacate in Marques, supra at 206-207, because the green sheet in the record contained a warning that was outdated at the time that it was given, and that outdated warning was materially incorrect in light of the Marques defendant's particular circumstances. Looking for a similar result, the defendant here claims that the warnings on his green sheet are outdated. To be sure, the warnings differ from those required under current law. But they mirror those required at the time of the defendant's plea in 1998. Marques therefore does not aid the defendant.
We are unmoved by the defendant's averment that he presently cannot remember being given the immigration warning, in light of his contemporaneous green-sheet certification that he "underst[ood]" his plea "may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization." Although the defendant claims that there is insufficient proof that he was the one who signed this certification, he does not claim that the signature is not his own. We also are not convinced by the defendant's argument that the docket sheet does not show that an interpreter was present at the plea hearing, where the green sheet contains an interpreter's signature.
In short, given the record before the motion judge indicating that the defendant was provided with proper G. L. c. 278, § 29D warnings, we discern neither an abuse of discretion nor an error of law in the denial of the defendant's motion. See Lewis, 96 Mass.App.Ct. at 357.
As a final matter, the defendant claims it was error for the motion judge to make further rulings on this issue after the defendant had noticed his initial appeal. We disagree, where a single justice of this court stayed appellate proceedings and granted "[l]eave to the Commonwealth to file, and the trial court to consider" the Commonwealth's motion for additional rulings on the defendant's motion for a new trial. See, e.g., Commonwealth v. Montgomery, 53 Mass.App.Ct. 350, 353 (2001) ("If a motion for a stay of appeal pending disposition of a motion for a new trial has been granted by a single justice of an appellate court, a trial judge may act upon that motion, and related motions, notwithstanding the pendency of the appeal").
2. Ineffective Assistance.
The defendant also argues, once again, that plea counsel was ineffective in failing to discuss the immigration consequences that would result from his guilty plea. As with the above, we review the motion judge's denial of the defendant's motion on this ground for "error of law or other abuse of discretion" (citation omitted). Commonwealth v. Alemany, 488 Mass. 499, 517-518 (2021). We find neither here.
To prevail on his ineffective assistance claim, the defendant "must prove both deficient performance and prejudice." Commonwealth v. Chleikh, 82 Mass.App.Ct. 718, 722 (2012). A counsel's performance is deficient if it falls "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To show prejudice, where a guilty plea is at issue, "the defendant has the burden of establishing 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" (quotation and citation omitted). Commonwealth v. Cano, 87 Mass.App.Ct. 238, 246-247 (2015). The defendant must demonstrate that a decision to go to trial would have been rational under one of the three prongs discussed in Clarke, 460 Mass. at 47: (1) he had available a substantial ground of defense, (2) there is a reasonable probability that a different plea bargain could have been negotiated at the time, or (3) there exist special circumstances to support the conclusion that the defendant placed, or would have placed, particular emphasis on immigration consequences when deciding to plead guilty.
To begin, we note that the defendant's evidence as to his plea counsel's deficient performance is thin. In his most recent affidavit, the defendant avers only that he does "not recall" whether plea counsel discussed with him the immigration consequences of his plea. We question whether this meets his burden, but we need not and do not decide that here, as in any event the motion judge did not abuse his discretion in denying the motion based upon a failure to show prejudice.
To meet the prejudice prong, the defendant argues that his decision to go to trial would have been rational both because he had available a substantial ground of defense and because he could have obtained a more favorable plea. We are not convinced.
The defendant also vaguely alludes to, but does not expressly argue, the existence of "special circumstances." The defendant is directly estopped from making this argument, where he raised it in support of his second motion for a new trial, and the judge ruled against him. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). See also Watkins No.1, 486 Mass. At 806 n.8.
As to a substantial ground of defense, the defendant suggests that there are issues regarding the anonymous informant who provided information to the police, and that the defendant could not have been the person the police spoke to on the phone, because he does not speak English. This argument is without merit, considering the "overwhelming evidence" of defendant's guilt. Chleikh, 82 Mass.App.Ct. at 726. The defendant arrived alone, sold cocaine directly to the police, and was observed with what appeared to be another six bags in his car. Under the circumstances, one cannot reasonably conclude that inquiry into the informant would have resulted in a viable defense. The defendant also argues that a better plea deal was possible had his counsel conducted discovery into the informant's identity and conversation with the police. This argument also fails, as the only evidence in the record as to the availability of a better plea was from the defendant's plea counsel, who averred that, in his particular experience in that court and with those judges, a better plea was unlikely. The defendant presents no contrary facts and has therefore failed to meet his burden. See id. at 727-728.
3. Evidentiary Hearing.
Finally, the defendant argues that the motion judge erred in deciding the motion for a new trial without conducting an evidentiary hearing. We disagree.
"A judge may decide a motion for a new trial without holding an evidentiary hearing if 'no substantial issue is raised by the motion or affidavits.'" Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). "[W]e review a decision not to hold such a hearing for an abuse of discretion." Id. Where the green sheet and docket notation demonstrate that the defendant received the statutory immigration warnings, and the defendant has not made a material showing that he was prejudiced by plea counsel's purported failure, we are satisfied that the motion judge did not abuse his discretion in concluding that the defendant failed to raise a substantial issue requiring an evidentiary hearing. See id. at 510-511.
We have carefully considered all the arguments raised in the defendant's brief. To the extent any additional arguments have not been addressed specifically herein, they are without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Orders denying motion for new trial affirmed.
By the Court
Green, C.J., Lemire & Englander, JJ.
The panelists are listed in order of seniority.