Opinion
20-P-493
06-22-2021
COMMONWEALTH v. Dara EK.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant is a legal permanent resident of the United States and a citizen of Cambodia. In 2004, he pleaded guilty in the District Court to larceny from a person, G. L. c. 266, § 25 (b ), and assault with a dangerous weapon, G. L. c. 265, § 15B (convictions). He subsequently filed two motions to withdraw those guilty pleas on the ground that his plea counsel was ineffective in failing to provide the required advice about the immigration consequences of his plea under Padilla v. Kentucky, 559 U.S. 356 (2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). Each motion was denied; the defendant appeals from the 2020 order denying the second motion.
On appeal, the Commonwealth has represented that it supported the defendant's second motion to withdraw his pleas, but that the judge denied the motion before the Commonwealth made its position known. Because we cannot be confident that justice was done where the judge did not have the opportunity to consider the Commonwealth's position on the defendant's motion, we do not reach the merits of the defendant's arguments on appeal, but vacate the order denying the motion and remand the case to the District Court for further proceedings.
Background. As part of his 2004 plea, the defendant, represented by plea counsel, agreed to the imposition on each charge of concurrent sentences of one year in the house of correction, suspended with eighteen months of probation. These sentences qualified both convictions as "aggravated felonies" for the purposes of assessing the immigration consequences of the plea and provided a basis under Federal law for the defendant's removal from the United States. See Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 397 (2012) (aggravated felony under 8 U.S.C. § 1101(a)(43)(F) (2006) includes crime of violence for which defendant sentenced to at least one year of imprisonment). See also 8 U.S.C. § 1101(a)(43)(G) (defining aggravated felony to include "a theft offense ... for which the term of imprisonment [is] at least one year"); 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable"). Indeed, in 2005, the United States Immigration and Naturalization Service (INS) issued an order of removal for the defendant, although it did not act on the order at that time.
In 2018, represented by new counsel (postconviction counsel), and concerned that he was then under practical threat of deportation, the defendant filed a motion to withdraw his guilty pleas, arguing that plea counsel rendered ineffective assistance by failing to advise him properly of the immigration consequences of his plea under Padilla, 559 U.S. at 366-370, and Clarke, 460 Mass. at 45-49. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The Commonwealth opposed this motion, and after a hearing, the judge denied it.
In doing so, the judge noted, inter alia, that the defendant failed to provide any support for the motion other than his own affidavit; failed to show that a disposition short of dismissal or a finding of not guilty would have alleviated the immigration consequences of the plea, or that such a disposition could have been negotiated; failed to proffer any evidence of defenses the defendant had to the charges; and failed to identify any special circumstances that the defendant had at the time of the plea that would have given the immigration consequences of the plea particular importance to him. See Clarke, supra.
In 2020, represented by current counsel, the defendant filed a second motion to withdraw his pleas, reiterating his ineffective assistance claim against plea counsel and raising a new ineffective assistance challenge to postconviction counsel's work on the first motion to vacate. In the absence of an immediate response from the Commonwealth, a different judge denied the defendant's second motion on the ground that it failed to raise any "significant new issues" not raised in the first motion.
The defendant's second motion was supported by an affidavit of postconviction counsel identifying several instances in which postconviction counsel's pursuit of the first motion to withdraw the pleas arguably failed to meet the Saferian test, and averring that the missteps were oversights, rather than strategic choices. See Saferian, 366 Mass. at 96. In addition, and in contrast to the defendant's first motion for new trial, the defendant provided the affidavit of current counsel outlining his unsuccessful efforts to obtain an affidavit from plea counsel; affidavits of two percipient witnesses to the events that gave rise to the convictions here, with the affiants' statements that they would testify consistently with the exculpatory substance of their affidavits if they were called as trial witnesses; and the defendant's description, under oath, of "special circumstances" including his family's flight from the Khmer Rouge in Cambodia and his birth in a refugee camp in Thailand, his family's experience emigrating from that camp to the United States, and his lack of any remaining family in Cambodia, along with his averment that he would have opted to reject the pleas if he had known of the resulting immigration consequences.
The judge who imposed the sentences, and who denied the defendant's first motion to withdraw his pleas, had retired by the time the second motion was filed.
As we have noted, the Commonwealth did not file an opposition brief in this appeal. Instead, in a letter submitted in lieu of a brief, the Commonwealth represents that it "concedes to the issues raised in the defendant's brief," and requests that we "grant the defendant the relief requested therein." The Commonwealth also represents that had it been given the opportunity to do so, "it would have assented to [the second motion]" in the trial court.
Discussion. We treat a motion to withdraw a guilty plea like a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018). Were we to reach the merits of the defendant's challenge to the judge's ruling, our review would be for "a significant error of law or other abuse of discretion." Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting Commonwealth v. Robideau, 464 Mass. 699, 702 (2013). See Lastowski, supra.
Here, however, we do not reach the defendant's substantive arguments. This is because in the unique circumstances of this case, we conclude that the defendant was entitled to have the judge consider not only the merits of his second motion to withdraw his pleas -- which it would appear the judge did -- but also to weigh any evidence and argument that the Commonwealth intended to offer in support of the defendant's motion. Cf. Gordon, 82 Mass. App. Ct. at 394, quoting Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353 (2008) (in "exceptional situations," despite the "rigorous standard" applicable to motions for new trial, judge has discretion to grant motion if "justice may not have been done"). Mindful that "[j]ustice is not done if the defendant has received ineffective assistance of counsel in deciding to plead guilty," Gordon, supra, we conclude that the defendant is entitled to have the judge consider not only his argument, but any argument the Commonwealth may present in support of his motion, before deciding the motion.
We ascribe no error to the judge's swift action on the defendant's motion. No rule or statute establishes the time within which the Commonwealth must respond to a motion for new trial, or requires a judge to wait for a response before ruling on the motion.
Conclusion. The order denying the defendant's second motion for new trial is vacated, and the case is remanded to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
vacated and remanded