Opinion
No. 11–P–982.
2013-02-26
COMMONWEALTH v. Joao J. GOMES.
By the Court (GRAHAM, VUONO & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty in 1999 to possession of a class “A” substance with intent to distribute.
Thirteen years later, and facing a United States Immigration and Customs Enforcement (ICE) detainer based upon this conviction, the defendant now appeals the denial of his second motion for new trial.
Members of the Dennis police department and the Cape Cod Drug Task Force recovered ninety-eight bags of heroin from Gomes after he arrived at a location they were searching pursuant to a warrant. A charge of driving without a license was filed with the defendant's consent, and a conspiracy charge was dismissed.
Relying on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), his motion alleges ineffective assistance of counsel, and asserts that his lawyer never informed him of the immigration consequences of his guilty plea.
The District Court docket sheet indicates that a notice of appeal was filed after the first motion for new trial was denied. It appears that, before the record was assembled, the defendant filed a second motion for new trial, which is the subject of this appeal.
“A motion for new trial is addressed to the sound discretion of the judge.” Commonwealth v. Lucien, 440 Mass. 658, 669 (2004). In addition, “[t]o succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious incompetency must be prejudicial.” Commonwealth v. Clarke, 460 Mass. 30, 46–47 (2011).
The motion judge found, as he did at the time of the defendant's first motion for new trial, that both the lawyer and the plea judge properly advised the defendant of the immigration consequences of his guilty plea.
While the defendant's appeal was under review, the United States Supreme Court issued its decision in Chaidez vs. United States, No. 11–820 (U.S. Feb. 20, 2013), holding that Padilla v. Kentucky, supra, announces a new rule, and thus does not apply where, as here, the defendant's conviction became final prior to Padilla. The present case was briefed pursuant to Commonwealth v. Clarke, which held that Padilla applied to convictions obtained after April 1, 1997. 460 Mass. at 34–45. Whether considered under the Chaidez standard or the more generous Padilla/Clarke standard, the result we reach is the same.
In his findings on the first motion, the judge noted the trial judge's thirty five years of experience and “strongly credit[ed] the trial judge's affidavit that his usual and customary practice was to advise the defendant in accordance with the substance of [G.L .] c. 278 § 29D and, given the seriousness of the charges and sentence in this case compared to the bulk of business, [the motion judge was] convinced that the judge would have meticulously reviewed the defendant's rights and exposures with him.”
On appeal, the defendant argues that trial counsel failed to advise him that the felony charge to which he pleaded carried an automatic consequence of deportation. His position is that, even assuming the plea judge gave him the statutorily required warning during his colloquy, that warning, of possible immigration consequences, “falls woefully short” of what is required under Padilla “when the deportation consequence is truly clear.” Padilla v. Kentucky, 130 S.Ct. at 1483.
In his findings on the second motion, the judge noted that the trial attorney, who died in 2004, had served as an attorney with the Massachusetts Defenders' Committee and the Committee for Public Counsel Services from 1974 until his retirement in 2002. He had been well educated, well regarded by the bench and bar, and honored by the Massachusetts Bar Association with a “Defender Award” two years before the plea in this case.
During the December 16, 2010, evidentiary hearing on the defendant's motion, the defendant was the only witness called. He testified that, had he been advised by trial counsel of the consequences of his plea, he would have “took it to trial” because “it was a weak case”; he also testified that his attorney told him he had been “caught red-handed” and that he “should just plead out” to the charge. The defendant further testified that all of his extended family live in the United States and that he would not have risked the possibility of never seeing them again.
The motion judge did not credit the defendant's testimony, in particular, the testimony that the defendant did not see the language relating to immigration consequences that appeared directly above his signature on the tender of plea form (“green sheet”) executed at the time of his plea.
He concluded that “the defendant was properly advised of the immigration consequences of a conviction and elected to proceed with the guilty plea notwithstanding that information.”
The judge also observed that the defendant's “disregard of those consequences was no doubt the product of a realization that ... the ... ICE ... was, as a practical matter, not carrying out the statutory mandate,” and that the defendant's “subsequent frequent involvement with the court system, during the past 11 years is the best evidence of that reality.”
In this case, we need not address the issue whether the defendant satisfied the first prong of Padilla, that is, whether advising the defendant that his plea carried the consequence of possible, as opposed to automatic, deportation was ineffective, see 130 S.Ct. at 1482, because the motion judge also concluded that the defendant “failed to supply the second prong of the Padilla–Strickland test.” That prong requires a showing of “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In particular, the judge noted that “the exigencies facing the defendant, including the possibility of indictment and State prison time [for the possession of ninety-eight bags of heroin], ... would induce him to plead swiftly, foregoing a motion to suppress or a trial on the merits.” Moreover, there is nothing in this record that would lead us to believe that the defendant would have obtained a better result had he gone to trial, or even had he litigated a motion to suppress the heroin.
After a careful review, we see no error of law. Nor are we persuaded that the motion judge abused his discretion when he denied the defendant's second motion for new trial.
December 30, 2010, order denying second motion for new trial affirmed.