Opinion
No. 11–P–1370.
2012-10-24
COMMONWEALTH v. Marvin CASTILLO.
By the Court (CYPHER, KATZMANN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marvin Castillo, appeals from the denial of a motion for new trial based on defense counsel's ineffective assistance of counsel under Padilla v. Kentucky, 130 S.Ct. 1473 (2010). The motion judge found, correctly, that the defendant had demonstrated that the first prong of the Saferian test had been established. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The 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. Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). Here, the judge considered the first two methods of establishing prejudice, but did not consider the third method, of demonstrating 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 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 came to the United States when he was seven years old; he was a legal resident; he was married to a United States citizen; his children were United States citizens; and he had a unique and important relationship with his son, who had special needs. Such special circumstances would have caused the defendant to place particular emphasis on immigration consequences in making a determination whether to plead guilty. Preserving the possibility of discretionary relief from deportation has been recognized as a significant factor in making such a decision. Padilla v. Kentucky, 120 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, be more important than serving a potential jail sentence. Ibid. The Commonwealth's argument that the defendant had no defense to the charges is not dispositive in this context. Nor is its complaint that application of the standards articulated in Clarke will result in a flood of litigation. Such a concern is not relevant to consideration of the merits of a particular case.
Although we do not rest our decision on this point, we note that the judge made credibility determinations on the basis of the affidavits filed by the defendant. First, it is not axiomatic that a general affidavit followed by a more specific affidavit renders the affiant lacking in credibility. Second, to the extent the judge may reject an affidavit in support of a motion for new trial as “self-serving” (which, as the defendant argues does not automatically render it untrue), here the defendant was required to make what could be termed a self-serving statement. See Commonwealth v. Clarke, 460 Mass. at 49 (prejudice not established where defendant did not allege in his affidavit that “had he known the deportation consequences of his please, he would have insisted on going to trial”).
We recognize that the judge did not have the benefit of Clarke when he rendered his decision. Nevertheless, the record clearly establishes the defendant's unchallenged special circumstances, and he is entitled to withdraw his guilty plea.
The order denying the motion to withdraw the guilty pleas is reversed, and a new order shall enter allowing the motion. The judgments are vacated.