Opinion
No. 11–P–2006.
2013-02-19
COMMONWEALTH v. Luis MARTINEZ.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his 2010 motion for a new trial, which sought to vacate an admission to sufficient facts that he made in 1991. He also appeals from the denial of a motion to reconsider.
His motions allege that he was not provided with notice of the immigration consequences of his plea by the judge, thereby entitling him to a new trial pursuant to G.L. c. 278, § 29D. He contends further that he received ineffective assistance of counsel for not having been given information about the consequences to his immigrant status which, under Padilla v. Kentucky, 130 S.Ct. 1473 (2010), also entitles him to a new trial. We affirm.
The defendant avers that his motion for reconsideration was in fact a motion to amend his first motion for a new trial or, in the alternative, a second motion for a new trial. Even assuming that his argument satisfies the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), it does not disturb the following analysis.
With respect to his first contention, the record shows that the defendant received immigration warnings from the judge, similar to the record notation in Commonwealth v. Podoprigora, 46 Mass.App.Ct. 928, 929–930 (1999). There, the judge, relying on a docket sheet entry that contained a checked box entitled “Advised of alien rights,” denied the defendant's motion to vacate his admission to sufficient facts on the ground that he had not been given proper advisement. On appeal, this court affirmed, concluding that the docket sheet constituted a “record” within the meaning of G.L. c. 278, § 29D, and that the record “establish[ed] that the defendant received his statutory due.”
Id. at 930. See Commonwealth v. Ciampa, 51 Mass.App.Ct. 459, 463–464 (2001) (“In the absence of ... a specific statement of past practice, a finding that the warnings were given may be based on a record, such as a docket entry”). Here, as in Commonwealth v. Podoprigora, supra, the Commonwealth presented a sufficient record demonstrating that the judge administered to the defendant the warnings required by G.L. c. 278, § 29D. The defendant's claim for ineffective assistance of counsel, brought pursuant to Padilla v. Kentucky, supra, is also without merit, primarily for the reasons discussed above.
At the relevant time, G.L. c. 278, § 29D, as appearing in St.1996, c. 450, § 254, provided, in part: “Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not have received the required advisement.”
Moreover, the defendant admitted to sufficient facts for a finding of guilt in 1991, resulting in a continuance without a finding and then a dismissal after one year. It has been held, however, that a claim for ineffective assistance of counsel based on Padilla v. Kentucky, supra, may be brought only with respect to pleas entered on or after April 1, 1997, when the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), became effective. See Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).
As the Court stated in Padilla: “There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” 130 S.Ct. at 1483. Since the defendant has failed to demonstrate that the duty of counsel was to provide a level of advice on immigration consequences more exacting than that required of the judge by statute, no ineffectiveness has been shown in light of the warnings given by the judge.
Even were we to consider the merits of the defendant's ineffective assistance of counsel claim, he would not prevail. The defendant argues, essentially under post-IIRIRA standards, that representation by plea counsel was constitutionally deficient. However, he has offered no evidence as to the standards against which plea counsel's effectiveness should be measured for this 1991 plea, and no evidence that in 1991, the plea clearly would have meant an immigration consequence to the defendant.
Therefore, we fail to discern how the assistance provided by plea counsel was ineffective under the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
See n. 4, supra.
Consequently, there was neither error nor an abuse of discretion in the denial of the defendant's motion for new trial and the motion to reconsider.
We also note that the defendant made no showing, “in order to satisfy [ Saferian's ] ‘prejudice’ requirement, ... 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.’ ... At a minimum, this means that the defendant must aver that to be the case.... In addition, he must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ “ Commonwealth v. Clarke, supra at 47, quoting from Padilla v. Kentucky, supra at 1485.
Order denying motion for new trial affirmed.
Order denying motion to reconsider affirmed.