Opinion
16-P-142
03-10-2017
COMMONWEALTH v. Wendy TEJADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of her motion to withdraw her guilty plea to a charge of conspiracy to violate controlled substances laws. She argues that the judge erred in denying her motion because (1) she was denied effective assistance of counsel by plea counsel's failure to advise her of the immigration consequences of a guilty plea, and (2) the judge did not hold an evidentiary hearing. We affirm.
The defendant's motion is captioned "motion to vacate conviction." It is a motion to withdraw a guilty plea, which is treated as a motion for a new trial.
The Commonwealth's motion to strike portions of the defendant's brief for failing to provide record references for factual assertions is denied. We particularly note that the Commonwealth moved to strike the defendant's assertion that
"[t]he truth of the matter is that in the Hispanic culture, most people have two surnames. They use the multiple surnames to refer to the names of their mother and father. Also, people from other countries may have accents and their names may be recorded in a slightly different manner because the person is unable to clearly communicate the name and its spelling."
The defendant makes this argument in response to the Commonwealth's assertion that the defendant's use of the names Wendy Otero and Wendy Detejada supports her involvement in criminal activity. The defendant's concern about cultural awareness is warranted. Her name, as indicated on her resident alien card, is Wendy Felicia Tejada de Otero. See Mass.R.Prof.C. 3.4, as appearing in 471 Mass. 1425 (2015).
1. Ineffective assistance of counsel . The defendant argues that her plea counsel was constitutionally ineffective because he failed to advise her that accepting a plea on the conspiracy charge could result in her immediate deportation from the United States.
We assume without deciding that plea counsel's advice fell short of the competence required under Padilla v. Kentucky , 559 U.S. 356, 374 (2010), and Commonwealth v. Clarke , 460 Mass. 30, 45-46 (2011). From that premise, we consider whether the defendant can demonstrate prejudice flowing from plea counsel's shortcomings. See id . at 47. A defendant may meet her substantial burden of proving prejudice by showing "(1) [s]he had an ‘available, substantial ground of defence,’ ... that would have been pursued if [s]he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of ‘special circumstances' that support the conclusion that [s]he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Commonwealth v. Sylvain , 466 Mass. 422, 438 (2013), quoting from Clarke , supra at 47-48. As the defendant concedes that the second Clarke factor is not an issue here, we turn to whether the defendant has demonstrated either a substantial ground of defense or special circumstances.
In reviewing a decision on a motion to withdraw a guilty plea, we "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko , 473 Mass. 42, 47 (2015), quoting from Commonwealth v. Grace , 397 Mass. 303, 307 (1986).
a. Substantial ground of defense . The defendant argues that she had an available substantial ground of defense at the time she pleaded guilty. She contends primarily that there is an insufficient nexus between her, the coconspirators, and the drug activity, and that she was out of the country at the time the search warrant was executed at her home.
There is significant evidence connecting the defendant to her coconspirators and to the conspiracy to distribute narcotics. The defendant was listed on the rental application with her coconspirators for the apartment that was the center of the drug activity. The search of the defendant's residence revealed, among other evidence, heroin and heroin packaging supplies in the defendant's bedroom. The defendant admitted that she allowed her friends to use her car, which she purchased with cash in excess of her income. One of the defendant's coconspirators gave a statement to the police detailing the defendant's involvement in the drug operation.
While the defendant is correct that her travel itinerary shows that she was in the Dominican Republic at the time the search warrant was executed, the itinerary also indicates that she was in the United States during at least part of the time the police were conducting their ongoing investigation, including an arranged purchase of heroin from one of the defendant's coconspirators on February 13, 1998. We thus conclude that the defendant had no available substantial ground of defense.
b. Special circumstances . The defendant also argues that special circumstances, in regards to immigration consequences, would have made it rational for her to reject the plea and insist on going to trial, despite the long odds she might face in light of the evidence of her guilt.
No such special circumstances appear in the present case. The defendant's affidavit asserts very few ties to the United States. The defendant now has two children living in the United States and is employed full time. However, at the time of the plea she had only one child and that child was living and attending school in the Dominican Republic. Also, at the time of the defendant's statement to police a year before pleading guilty, she was not working.
The defendant gave birth to a second child approximately seven months after her plea was tendered. Without any record support, the Commonwealth hypothesizes that the defendant was pregnant at the time of the plea and was aware of that fact and asks the panel to conclude that the threat of giving birth in prison may have contributed to her decision to plead guilty. However well-intentioned the Commonwealth's appeal to the positive stereotypes of a pregnant person, we decline the invitation.
Though the defendant asserts in her brief that she was working two jobs at the time of the plea, there is no support for this in the record.
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We accordingly discern no error in the conclusion of the motion judge that "where the defendant received one year of unsupervised probation, her claim that she would have insisted on going to trial is not credible."
2. Evidentiary hearing . The defendant argues that the judge abused his discretion in deciding the motion to withdraw the guilty plea without holding an evidentiary hearing where he had previously ruled that the defendant raised "substantial issues" and an evidentiary hearing was warranted.
"The choice of deciding [a motion for a new trial] on the basis of affidavits or hearing oral testimony is left largely to the sound discretion of the judge, ... to which appellate courts generally defer." Commonwealth v. Cutts , 444 Mass. 821, 830 (2005) (quotation omitted). "A judge's power to reconsider his own decisions during the pendency of a case is firmly rooted in the common law." Commonwealth v. Haskell , 438 Mass. 790, 792 (2003). The defendant has not shown that the judge abused his discretion in denying the motion without a hearing.
Order denying motion for new trial affirmed .