Opinion
19-P-1488
10-19-2020
COMMONWEALTH v. Jose GALDAMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Jose Galdamez, seeks to withdraw his guilty plea to charges on the ground that he was provided constitutionally ineffective assistance of plea counsel who failed to advise him as to the immigration consequences of such a plea. Following an evidentiary hearing, the District Court judge summarily denied his motion for a new trial without explanation. On appeal, the defendant contends that the judge abused his discretion. Although the Commonwealth opposed the defendant's motion in District Court, it now concedes the issues raised on appeal by the defendant and agrees that a remand is required. We agree.
In August 2012, the defendant pleaded guilty to (1) operating under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a ) (1) ; (2) reckless operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ) ; and (3) child endangerment while operating a motor vehicle under the influence of alcohol, G. L. c. 90, § 24V.
Background. The defendant, who is not a United States citizen, entered the United States from El Salvador in 2000, when he was eighteen years old. Since 2002, he has been employed at Duval Roofing. He has two biological children (both born in the United States) and currently lives in Chelsea with his wife (whom he married in 2016) and his stepson. He is responsible for providing financial and moral support to his family in the United States, and he provides monthly financial support for relatives in El Salvador.
Because the District Court judge did not make any findings, we summarize the relevant facts as presented by the defendant at the hearings on his motion for a new trial and in his supporting affidavits.
In his affidavit, the defendant states that he has lived in the United States since 2010.
In 2012, the defendant pleaded guilty to the aforementioned charges. See note 1, supra. Although the defendant's plea counsel knew that the defendant was not a United States citizen, plea counsel did not discuss with him that pleading guilty to these charges would put him at a significant risk of removal from the United States. The defendant was sentenced to one year in the house of correction (suspended for one year) and one year loss of license.
In his affidavit, the defendant's plea counsel states that he does not recall the matter, despite reviewing the files and documentation provided by the defendant's appellate counsel. Further, he does not recall giving the defendant any warnings regarding the immigration consequences of his plea. He also does not set forth his usual practice with regard to such warnings.
In 2016, the defendant received a notice of an immigration hearing regarding his removal. The defendant contends that he learned, at that time, that his guilty plea (with regard to the child endangerment while operating a motor vehicle under the influence of alcohol and reckless operation of a motor vehicle charges) made him removable and "inadmissible" because those crimes are considered crimes involving moral turpitude under the Immigration and Nationality Act. These consequences, the defendant contends, were clearly established law at the time of his plea. The defendant avers that had he known of the immigration consequences of his plea, he would have proceeded to trial because "being removed from this country would have devastating consequences for everyone in [his] family."
He filed a motion for a new trial, seeking to withdraw his guilty plea pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). He also submitted affidavits from himself, his appellate counsel, and his plea counsel. Based on these submissions, the judge decided to hold an evidentiary hearing, during which the defendant testified. The Commonwealth presented no witnesses, but opposed the motion. The motion was denied in a margin order without explanation.
Discussion. We review the denial of the defendant's motion to withdraw his guilty plea, treated as a motion for a new trial, for a significant error of law or other abuse of discretion. Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). On appeal, "the Commonwealth concedes the issues raised in the defendant's brief and requests the [c]ourt grant the defendant the relief requested therein." In his brief, the defendant appears to seek a remand for findings by the judge on his motion for a new trial.
In the District Court, the Commonwealth argued that the defendant failed to show that plea counsel did not discuss immigration consequences with him because, at most, plea counsel stated that he could not recall the matter. The Commonwealth further urged the judge not to credit the defendant's "selfserving" affidavit. The Commonwealth also maintained that the defendant had failed to establish that he had a substantial ground of defense, that there was a reasonable probability that he could have negotiated a better plea, or that there existed special circumstances supporting the conclusion that he would have placed particular emphasis on immigration consequences in deciding whether to plead guilty. The Commonwealth has abandoned these arguments on appeal.
Because the defendant is not a United States citizen and there is no dispute that his admissions would subject him to deportation, the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights required plea counsel to advise him of that consequence. See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) ; Commonwealth v. Lys, 481 Mass. 1, 5 (2018). It is undisputed that plea counsel did not do so, which constitutes behavior falling "measurably below that which might be expected from an ordinary fallible lawyer. ..." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Lys, supra (Constitution requires counsel to "advise his or her clients about a guilty plea's ‘truly clear’ deportation consequences" [citation omitted] ).
Accordingly, the defendant was entitled to withdraw his plea if he showed that the decision to do so was rational in view of the circumstances. Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). Here, the defendant testified, in a sworn statement and during the evidentiary hearing, that "special circumstances" supported this conclusion because, had he known the risk of removal, he would have "placed[ ] particular emphasis on immigration consequences in deciding whether to plead guilty." Id. at 47-48. On appeal, the Commonwealth concedes this issue.
The judge did not address the defendant's claims; instead, although he held an evidentiary hearing, he summarily denied the motion without explanation. Because we do not know whether the judge discredited the defendant's assertions (now all conceded by the Commonwealth) or whether he decided that, even if believed, the defendant's assertions do not qualify as special circumstances (a position the Commonwealth now has abandoned), the record is insufficient for us to determine whether he "made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The denial of the motion therefore must be vacated and the case remanded for findings consistent with this memorandum and order.
In light of the Commonwealth's change in position, the judge may choose to rehear the parties, and may arrive at a different conclusion. Any such conclusion should be supported by factual findings so as to permit review, if needed.
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So ordered.