Opinion
No. 11–P–2117.
2012-11-21
COMMONWEALTH v. Wilian E. ALVARADO.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Wilian E. Alvarado, appeals from an order denying his motion to withdraw his guilty pleas based on defense counsel's ineffective assistance under Padilla v. Kentucky, 130 S.Ct. 1473 (2010). The defendant demonstrated that the first prong of the Saferian test had been satisfied. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The motion judge concluded, however, that the second prong—prejudice—had not been established. This was error.
The Supreme Judicial Court has stated that prejudice in this context may be established in one of three ways. See Commonwealth v. Clarke, 460 Mass. 30, 47–48 (2011). Here, the judge considered the first two methods of establishing prejudice, but did not appropriately consider the third method, i.e., whether the defendant has demonstrated the presence of “special circumstances that support the conclusion that [the defendant] placed, or would have placed, particular emphasis on immigration consequences in deciding whether or not to plead guilty.” Ibid.
It is readily apparent from the record, and the Commonwealth does not dispute, that this defendant, indeed, had special circumstances, including but not limited to the following: he had temporary protected status (TPS status) (about which plea counsel either was unknowledgeable or did not understand the significance) and important relationships with his wife and child, who is a citizen. Such special circumstances could have caused the defendant to place particular emphasis on immigration consequences in making a determination whether to plead guilty. See id. at 48 n. 19. Preserving the possibility of discretionary relief from deportation has been recognized as a significant factor in making such a decision. Padilla v. Kentucky, 130 S.Ct. at 1483. A decision to reject a guilty plea would have been rational. The United States Supreme Court has recognized that this may be, in fact, “more important ... than any potential jail sentence.” Ibid., quoting from INS v. St. Cyr, 533 U.S. 289, 323 (2001).
See, in this regard, Rodriguez v. U.S. Dept. of Homeland Security, 562 F.3d 1137, 1140 (11th Cir.2009).
The Commonwealth's argument that the defendant had no defense to the charges is not persuasive, nor, in any event, dispositive in this context.
The Commonwealth's complaint that application of the standards articulated in Commonwealth v. Clarke, supra, will result in a flood of litigation is not relevant to consideration of the merits of a particular case. See id. at 47–48.
We recognize that the judge did not have the benefit of Commonwealth v. Clarke, supra, when he rendered his decision. Nevertheless, the record clearly establishes the defendant's unchallenged special circumstances, and he is entitled to withdraw his guilty pleas.
The order denying the motion to withdraw the guilty pleas is reversed, and a new order shall enter allowing the motion.