Opinion
10-P-1935
12-08-2011
COMMONWEALTH v. THO MINH CHAU.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the close of all the evidence at his trial, the defendant changed his plea to guilty of the possession of a class B controlled substance with the intent to distribute. The defendant later filed a motion for a new trial in an effort to withdraw his guilty plea. The defendant appeals from the denial of that motion. We affirm.
1. Intelligence of the guilty plea. The defendant claims that his guilty plea was not intelligently made because he did not know the elements of the crime and the facts recited by the prosecutor did not provide a sufficient factual basis for the charge. We disagree. The defendant, who was a senior in college and fluent in three languages including English, did express some initial confusion regarding the crime to which he was pleading guilty. However, after he discussed the matter with his attorney, he responded that he was pleading guilty to possession of cocaine with the intent to distribute.
As the evidence had closed at the time of the change in plea, the judge remarked that even though they were all familiar with the facts of the case, he would have the prosecutor provide a short recitation of the evidence. As a result of that recitation, the defendant admitted that he drove Craig Kaplan, the codefendant, to a location where Kaplan would exchange cocaine for a handgun. The defendant admitted that he participated in a joint venture by acting in concert with Kaplan to deliver the cocaine. These admitted facts sufficiently explained the crime and the defendant's commission of it as a joint venturer. See Commonwealth v. Furr, 454 Mass. 101, 108 (2009). In addition, the defendant admitted that his attorney had explained to him the crime to which he pleaded guilty.
2. Immigration consequences. The defendant claims that his plea was not voluntarily and intelligently made because he was unaware of the immigration consequences that could result from his conviction. We disagree. The judge conducted a proper colloquy with the defendant which included that alien warning prescribed by G. L. c. 278, § 29D. See Commonwealth v. Hilaire, 437 Mass. 809, 819 (2002). Although the defendant was in the process of becoming a naturalized citizen, he did not wish to reconsider his decision to plead guilty.
3. Ineffective assistance. Finally, the defendant claims that he received ineffective assistance of counsel because his attorney gave him incorrect advice regarding the immigration consequences of his guilty plea. In support of his claim, the defendant relies on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), where the United States Supreme Court held that defense counsel's failure to advise a client that a consequence of his guilty plea likely would be deportation constituted ineffective assistance of counsel. Id. at 1483. The motion judge agreed with the Commonwealth's argument that Padilla is a 'new rule' that cannot be applied retroactively on collateral review. However, more recently, in Commonwealth v. Clarke, 460 Mass. 30, 41 (2011), the Supreme Judicial Court has decided that Padilla is not a 'new rule,' but that it will not be applied retroactively to convictions obtained before April 1, 1997, which is the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act. Because the defendant pleaded guilty on August 12, 1996, he is not entitled to relief, and the motion for a new trial was properly denied.
Order denying motion for new trial affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),