Opinion
13-P-546
10-20-2014
COMMONWEALTH v. DAVID BIDO DOMINGUEZ.
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
In 2000, the defendant pleaded guilty in Superior Court to two counts of indecent assault and battery on a child. The entry of the pleas followed a colloquy during which the judge advised the defendant consistent with G. L. c. 278, § 29D -- "that under [F]ederal law a conviction may result in your exclusion from admission to the United States, denial of naturalization, or deportation." The defendant also signed a written waiver of his rights. The plea judge sentenced the defendant to two concurrent five-year terms of probation.
Over twelve years later, the defendant filed a motion to withdraw his guilty pleas based on his allegedly having receiving inadequate immigration warnings. See Padilla v. Kentucky, 559 U.S. 356, 373-374 (2010). Although he undeniably was informed that his convictions could have negative immigration consequences, he argues that he was not sufficiently informed that he "would be deported" as a result of the convictions. See Commonwealth v. DeJesus, 468 Mass. 174, 182 (2014). On his appeal from the denial of his motion to withdraw his guilty pleas, we affirm.
The plea attorney submitted an affidavit in which she stated that she advised her client "that he faced, among other collateral consequences, potential immigration consequences." She unsurprisingly otherwise did not have a memory of the specific advice she had given him, but she went on to document her practice at the time. In addition to counseling her clients that they should consult an immigration attorney, her practice was to "highlight" that certain types of crimes "would result in deportation." According to her affidavit, those crimes included "crimes that carried in excess of certain periods of incarceration, crimes of violence and crimes of moral turpitude."
We agree with the Commonwealth that indecent assault and battery on a child is self-evidently a crime of moral turpitude. See Maghsoudi v. Immigration & Naturalization Serv., 181 F.3d 8, 14-15 (1st Cir. 1999). Accordingly, if the plea attorney followed her documented practice in this case, then it follows that she gave the defendant advice consistent with the standards enunciated in Commonwealth v. DeJesus, supra. The defendant therefore is left to argue that the plea attorney misstated her practice, or that for some reason she did not follow that practice here. The motion judge was not required to credit the defendant's self-serving affidavit stating he was never advised that his convictions would result in his deportation. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009) ("The judge may decide the motion [to withdraw a guilty plea] based solely on the submitted affidavits, and the weight and credibility to be accorded those affidavits are within the judge's discretion"). We discern no abuse of discretion in the judge's denial of the motion.
The fact that indecent assault and battery on a child is also an aggravated felony (thus providing an additional ground for mandatory deportation and the one apparently relied upon by Federal officials in the deportation proceedings) is ultimately beside the point.
See also Commonwealth v. Lopez, 426 Mass. 657, 661 (1998) ("when a defendant leaves his guilty pleas unchallenged for a lengthy period of time [thus preventing reconstruction of the contemporaneous record], . . . a judge is not required to accept the defendant's self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendant's burden").
Because we conclude that the defendant has not shown that his plea counsel was ineffective, we need not reach his claims of prejudice. However, we do note that: (1) the defendant received an extremely favorable sentence through his plea bargain (especially given apparent evidence that the defendant admitted to the mother of the eight year old victim that he had committed a digital rape of the child), (2) there was no showing that the defendant could have negotiated a more favorable plea bargain, and (3) the defendant had been in the country for only approximately five years when he pleaded guilty.
Order denying motion to withdraw guilty pleas affirmed.
By the Court (Cohen, Meade & Milkey, JJ.),
Clerk Entered: October 20, 2014.