Opinion
14-P-1813
11-25-2015
COMMONWEALTH v. CARMEN MICHAEL DIMARCA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Carmen DiMarca, pleaded guilty on June 30, 2005, to trafficking cocaine in the amount of twenty-eight grams or more, and unlawful possession of a handgun. He now appeals from orders denying two motions for a new trial. Both motions sought to vacate his conviction of trafficking due to trial counsel's failure to advise him of the deportation consequences of his plea. The defendant contends that the motion judge, who was also the plea judge, erred in denying the motions because the defendant made an adequate showing of prejudice. Specifically, the defendant contends that (1) both his plea counsel and his first motion counsel were ineffective because each failed to advance a meritorious basis for suppression of the cocaine, and (2) he made an adequate showing of prejudice due to special circumstances.
Discussion. We review the denial of a motion for a new trial for an abuse of discretion or other error of law. Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). The judge found that trial counsel's failure to advise the defendant of the deportation consequences of his plea fell below the standard expected of ordinary, fallible counsel, but that the defendant was not prejudiced by counsel's advice. See Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011) ("To succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious incompetency must be prejudicial").
The defendant then bore "the substantial burden of showing that (1) he had an 'available, substantial ground of defence' that would have been pursued if 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 he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Id. at 47-48 (citation and footnote omitted). The defendant relies on the first and third prongs of the prejudice analysis, which we address in turn.
Substantial ground of defense. The defendant maintains that the Tupperware container containing cocaine was not abandoned and that he therefore relinquished an otherwise substantial ground of defense. See Clarke, supra. See generally Commonwealth v. Comita, 441 Mass. 86, 91 (2004) ("[I]n 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").
Trial counsel filed a motion to suppress on the ground that the State troopers lacked probable cause to seize the container. The judge, sua sponte, raised the issue of abandonment during the hearing on the motion to suppress. The judge found that when the defendant was stopped by the State troopers, he "tossed" the container into the trunk of the informant's car. In denying the defendant's most recent motion for new trial, the judge ruled that there was no deficiency in the presentation of the motion to suppress, and nothing in the motion for new trial would have changed the outcome.
The judge found that the arresting State trooper, who was wearing a State police jacket, bullet-proof vest, and State police cap, pulled up in an unmarked motor vehicle behind the defendant, got out, and identified himself. The trooper testified, "As I rolled up and exited the vehicle, the defendant looked at me and discarded the box into the trunk."
We discern no error. The judge's ruling constitutes an implicit, if not explicit, finding that the defendant abandoned the container. Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 716-718 (2012) (defendant abandoned backpack when he threw it into friend's yard). Contrast Commonwealth v. Straw, 422 Mass. 756, 759 (1996) (closed and locked briefcase thrown out of window into fenced-in curtilage of defendant's family's backyard was not abandoned). "[A]bandonment is a question of intent, which may be inferred from words, behavior, and other objective facts." Carnes, supra at 716. The defendant evinced an intent to discard the container by tossing it into the trunk of the informant's vehicle. The underlying facts were litigated at the hearing on the motion to suppress. No additional facts were offered in connection with the motion for new trial to show that the defendant had a subjective expectation of privacy in the informant's vehicle that "could be considered objectively reasonable or legitimate." Ibid., quoting from Straw, supra.
Special circumstances. The judge carefully considered the defendant's personal circumstances and made the following findings. The defendant had lived in this country since he left Italy as an infant. His primary language is English, though he speaks functional Italian. His family, including his two children, ninety-four year old mother, and numerous cousins, nieces, and nephews, all reside in the United States.
At the time of the hearing, the defendant had been deported. There is no suggestion in the record that the defendant made a request to testify by video conference or other means. The judge credited all undisputed statements in the defendant's affidavit, but did not credit any disputed statements as to which the Commonwealth had not had the opportunity to cross-examine.
The case against the defendant was strong; the Commonwealth had at its disposal both physical evidence and the testimony of the State troopers who conducted the surveillance. The crime with which the defendant had been charged, trafficking in 100 grams or more of cocaine, together with a school zone charge, carried a sentence of over twelve years, while the plea to trafficking in twenty-eight grams or more of cocaine carried a minimum sentence of five years on a recommended six to nine year sentence.
In addition to the reduction of amount from 100 to twenty-eight grams of cocaine, the recommended plea included a nolle prosequi of the school zone charge and a recommendation of probation on a related gun charge.
The judge found that the defendant faced near certain conviction and inevitably would face mandatory deportation after either the shorter sentence imposed in accordance with the plea, or a longer sentence after conviction at trial. As the judge noted, without minimizing the hardships of deportation, the defendant had a functional knowledge of the language and culture of Italy, all family members with the possible exception of his elderly mother would be free to visit, and the economic and political environment of the country would not constitute a threat to his health or safety. The judge did not abuse his discretion in concluding that it would not be rational for the defendant -- even in light of his personal circumstances -- to reject the plea. See Clarke, 460 Mass. at 47 (the defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances" [quotation omitted]).
The defendant is emphatic that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea, and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Clarke, supra at 47 (quotation omitted). However, the defendant's decision-making process is but one consideration before the judge, who must also decide if that decision would have been rational. Ibid.
Orders denying motions for new trial affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 25, 2015.