Opinion
23-P-855
07-16-2024
COMMONWEALTH v. ANGEL CAMACHO.
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 2009, the defendant pleaded guilty to possession of cocaine with the intent to distribute. On February 9, 2023, he filed a motion seeking to vacate his guilty plea, claiming ineffective assistance of plea counsel. The motion judge denied the defendant's motion without an evidentiary hearing, and the defendant now appeals.
1. Motion to suppress.
The defendant argues that his counsel was ineffective for failing to bring a viable motion to suppress the cocaine seized during an inventory search under Department of State Police, General Order TRF-10 (Dec., 1992). Had such a motion been granted, it appears successful prosecution would have been impossible.
According to the police report, an officer arrested the defendant for operating under the influence of alcohol, and then, pursuant to TRF-10, proceeded to conduct an inventory search of the defendant's car, as it was to be towed. The policy stated, "All closed but unlocked containers should be opened, and each article inventoried individually." While conducting this search, the officer found an eyeglass case, which he opened to reveal a crumpled paper towel. The officer then opened the paper towel and found nine grams of a white rock-like substance in a small, clear plastic bag.
The policy was updated effective April 23, 2009, after the search in this case but before the defendant pleaded guilty. The 2009 version was not materially different except that the word "should" was replaced with "shall."
In Commonwealth v. Alvarado, 420 Mass. 542, 553 (1995), the Supreme Judicial Court held that the TRF-10 policy did not allow police to open the water well of a coffee maker discovered inside a box properly opened during an inventory search of a car. The court said,
"We have held that, under art. 14, inventory searches of automobiles must be conducted pursuant to standard police procedures, and that those procedures must be in writing. Commonwealth v. Bishop, 402 Mass. 449, 451 (1988). The relevant portion of the State police guidelines applicable to closed containers states: 'All closed but unlocked containers should be opened, and each article inventoried individually.' Department of State Police, General Order TRF-10 § 4.2.2 (Dec., 1992). [The officer] was authorized to review the contents of the Buick and record those contents. He was also authorized by the guidelines to open the coffee maker box and record the presence of a Norelco coffee maker, but [the officer] exceeded his authorization to search when he removed the coffee maker from the box and opened its water well." Id.
At the time of this defendant's guilty plea, that was the last word from the appellate courts about searches of items found within closed containers. Under Alvarado, there was at that time at least a viable claim that the removal and opening of the paper towel, itself found within a closed eyeglass case that had been opened, rather than simply recording its presence, exceeded the permissible scope of a proper inventory search under the TRF-10 policy.
A failure of counsel to litigate a viable motion to suppress falls below the standards of the ordinarily fallible lawyer, Commonwealth v. Henderson, 486 Mass. 296, 302 (2020), and thus would ordinarily satisfy the first prong of Saferian. See Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).Because of the circumstances in this case, there may, however, have been a strategic reason for not bringing the motion to suppress. In particular, the defendant had recently pleaded guilty to a trafficking charge in a separate case, and the plea deal in this case allowed a quick resolution of this matter with no additional time to serve because his sentences ran concurrently. One can imagine a defendant in such circumstances being willing to accept a conviction of possession with intent to distribute cocaine, rather than pursuing a motion to suppress that might have led to dismissal for lack of evidence but which would also have some chance of failing. The affidavit of plea counsel did not mention the possibility of a motion to suppress at all.
The likelihood of success of a viable motion to suppress that was not litigated is assessed as part of the second, or prejudice, prong of the Saferian test. See infra.
We decline to conclude on this record that the failure to bring the motion to suppress was ineffective assistance of counsel warranting withdrawal of the defendant's guilty plea. Nonetheless, the defendant's motion raised a "substantial issue" with respect to the failure to file such a motion, such that it warranted an evidentiary hearing at which the judge could explore whether this was a reasonable tactical decision. Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Lys, 481 Mass. 1, 6 (2018), quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981) (if defendant's motion raises "substantial issue, then 'he is entitled to an evidentiary hearing'").
If the judge finds there was no strategic reason for failing to bring a motion to suppress, there will remain the question of prejudice. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004) ("in order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful"). "To succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious incompetency must be prejudicial." Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011). "We have defined prejudice in such claims as a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different" (quotations and citation omitted). Id. Because the issue of prejudice was not addressed in the trial court, we think the prudent course is, should it be necessary, to allow it to be addressed by the motion judge on remand in the first instance.
2. Immigration consequences.
The defendant also argues that his counsel was ineffective in failing to advise the defendant as to the dire immigration consequences of this guilty plea. According to the defendant's affidavit, he entered the United States in 2002 as a visitor but had overstayed his visa and was in the United States unlawfully. He was in removal proceedings before the United States Immigration Court at the time of his arrest and plea. He was, however, applying for withholding of removal pursuant to § 241(b)(3) of the Federal Immigration and Nationality Act, which does not allow for removal to a country if "the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A).
His plea in this case foreclosed any possibility of such discretionary relief from removal because the crime of possession with intent to distribute a class B controlled substance under G. L. c. 94C, § 32A, is an "aggravated felony" under Federal immigration law. 8 U.S.C. § 1101(a)(43)(B). The Immigration and Naturalization Act prohibits the United States Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling the case. 8 U.S.C. § 1227(a)(2)(B)(i); Moncrieffe v. Holder, 569 U.S. 184, 187 (2013).
Because deportation is the required legal consequence of a conviction of an aggravated felony, counsel must inform the defendant of that. See Commonwealth v. DeJesus, 468 Mass. 174, 179, 181 (2014). Informing him that he was merely eligible for deportation, or that he might be deported, is insufficient. Id.
In his affidavit, the defendant stated that his plea attorney did not discuss with him the immigration consequences of the guilty plea. The motion judge however, found the affidavit not credible, as our cases indicate he was entitled to do. Commonwealth v. Buckman, 461 Mass. 24, 43 (2011) ("A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, but may evaluate such affidavits in light of factors pertinent to credibility, including bias, self-interest, and delay").
In determining that the defendant and his plea counsel had discussed the immigration consequences of the plea, the motion judge relied on the signature of counsel on the "plea sheet." However, the plea sheet is not an adequate basis for a judicial finding that a client was properly advised by counsel, as a signed plea sheet is not sufficient evidence to support a judicial finding that the proper immigration warning was given. See DeJesus, 468 Mass. at 177 n.3, citing Clarke, 460 Mass. at 48 n.20. And, in any event, the warning described on the plea sheet was that the defendant "may have consequences of deportation" in light of his guilty plea, which, under DeJesus, is inadequate. Id. at 179, 181.
An affidavit that the judge did not discredit was also filed by the defendant's plea counsel. Although the affidavit twice asserted merely that counsel "d[id] not recall" taking certain steps related to discussing the defendant's immigration status and deportation consequences, the affidavit also affirmatively stated, "I made no inquiries as to what avenues of relief may have existed for Mr. Camacho at that time."
If this means that the attorney was unaware, at the time of the plea, that a guilty plea to this charge meant that the defendant was subject to mandatory deportation with no possibility of discretionary relief, he could not have provided his client with the required advice.
This sufficed to raise a "substantial issue" with respect to this second ineffective assistance claim. See Lys, 481 Mass. at 6. This independently required an evidentiary hearing where this question and others surrounding the advice given by counsel could be explored.
Of course, the defendant also bears the burden, with respect to this claim of ineffective assistance of counsel based on immigration consequences advice, to demonstrate that it would have been rational for him to have rejected the guilty plea in light of this advice. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010), citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000). Among the bases on which a defendant can successfully demonstrate that prejudice is the presence of "special circumstances." Clarke, 460 Mass. at 47. Among those special circumstances may be that deportation will separate the defendant from family members, particularly children, depending on his relationship with them. See Commonwealth v. Henry, 88 Mass.App.Ct. 446, 456 (2015). In this case, the defendant's affidavit stated that his wife and children live in Boston and that he lived in Revere at the time of his guilty plea. Although the affidavit did not describe the relationship among the family at the time of the plea, the factual questions underlying his claim of special circumstances (or any other factors relating to whether, if he did not receive proper advice, it would have been rational to have rejected the guilty plea in light of such advice,) may also be explored more fully at the evidentiary hearing.
3. Motion to dismiss.
Finally, the defendant argues that it was ineffective not to bring a motion to dismiss because the evidence before the clerk-magistrate, contained in the police report and which was the only basis of the application for a criminal complaint, did not establish probable cause with respect to the element of intent to distribute.
Although we need not decide definitively, the motion to dismiss had a substantial chance of being allowed. No information was contained in the police report, or any other aspect of the application for a criminal complaint, explaining that nine grams of rock cocaine was an amount consistent with distribution. There is no reported decision in this Commonwealth so stating with respect to that low a weight of rock cocaine. The drugs were not packaged for individual sale, and while there were no implements of drug use found in the car, neither was there anything else suggesting drug dealing, such as scales, records, multiple cell phones, packaging materials, or a substantial amount of money. See Commonwealth v. Montalvo, 76 Mass.App.Ct. 319, 327 (2010) ("the absence of implements or paraphernalia for personal use" and "the presence of cash in combination with . . . accoutrements of the drug trade" could be indicative of intent to distribute).
As with the motion to suppress, however, the affidavit of counsel did not mention the motion to dismiss, and it may well be that there were strategic reasons counsel did not bring such a motion, which might have included the likelihood of reindictment on the same charge, with less advantageous timing, or even the likelihood of reindictment on a simple possession charge, with less favorable timing. Since there must be an evidentiary hearing, we think the prudent course is to allow those questions to be explored at that hearing as well.
4. Conclusion.
The order denying the motion for a new trial is vacated and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court
The panelists are listed in order of seniority.