Opinion
16-P-122
05-04-2017
COMMONWEALTH v. Lazaro GUERRERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the order denying his motion to vacate his admission to sufficient facts, arguing that his plea counsel failed to give him specific advice regarding immigration consequences after he told her that he is a United States citizen. We affirm.
Background. The defendant was born in Honduras and came to the United States in 1997, when he was seventeen years old. Thirteen years later, a criminal complaint issued from the West Roxbury Division of the Boston Municipal Court Department, charging the defendant with three counts of larceny by check in an amount equal to or less than $250. On August 1, 2011, represented by Attorney Janet Petkun, the defendant admitted to sufficient facts to warrant findings of guilt on all three charges. His admission was accepted following a colloquy in which warnings were given pursuant to G. L. c. 278, § 29D. The portion of the docket sheet reflecting that immigration warnings were given is underlined, and the plea judge advised the defendant that a conviction could have the consequence of deportation if he is not a United States citizen. The defendant's case was continued without a finding for one year; however, on May 8, 2012, he was found to be in violation of probation and guilty findings entered.
The complaint included in the record appendix issued from the Dedham Division of the District Court Department on August 11, 2011, and charged offenses that occurred on August 19, 20, and 23, 2010. The offenses at issue here took place on August 13, 2010, and were prosecuted through the West Roxbury Division of the Boston Municipal Court Department. Convictions in both courts rendered the defendant eligible for deportation, and we assume that the former complaint was included by mistake.
In October of 2014, deportation proceedings were initiated against the defendant. In December of 2015, the defendant moved to vacate his admission to sufficient facts, alleging that Attorney Petkun had not warned him about the immigration consequences of his plea and that he did not understand that he could withdraw from the plea agreement and speak to her about those consequences after he "heard the plea colloquy and was kind of worried." In his affidavit in support of the motion, the defendant states that he "would not have accepted the deal" if he had known that he could be deported; he "would have gone to trial regardless of the risks or asked to negotiate a safer plea." Attorney Petkun states in her affidavit that she was prepared to go to trial until "the prosecutor offered a deal that involved only probation and restitution"; she did not remember her specific advice to the defendant but, "according to [her] notes, he told [her] that he was born in Boston, and therefore [she] did not advise him about potential immigration consequences, other than what was contained in the [plea] tender form."
The same judge who took the defendant's plea heard the motion to vacate it. In a written decision, the judge found "no evidence ... that at that time [the defendant] was incompetent, under the influence of alcohol or drugs, or [that he] did not understand written or oral English." The judge credited Attorney Petkun, found that the defendant "knowingly did not place Ms. Petkun on notice, and [found that] Ms. Petkun did not know or have reason to know" that the defendant was neither born in the United States nor a United States citizen. The judge found that the defendant knowingly and voluntarily pleaded guilty, and denied the motion without an evidentiary hearing.
Discussion. "A judge should allow a postsentence motion to withdraw a guilty plea only if the defendant comes forward with a credible reason for withdrawing the plea that outweighs the risk of prejudice to the Commonwealth." Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581 (2001). In reviewing the judge's decision for an abuse of discretion, we accept his findings because they are "supported by the evidence," and we give "[p]articular deference" to his rulings because he accepted the defendant's admission. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We apply the familiar Saferian standard because the defendant's "motion is based on ineffective assistance of counsel." Commonwealth v. Watson, 455 Mass. 246, 256 (2009). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
There was no ineffective assistance of counsel in this case. Attorney Petkun made "a reasonable inquiry of the [defendant]'s immigration status," Commonwealth v. Lavrinenko, 473 Mass. 42, 53 (2015), and the defendant told her he was born in Boston. She therefore had no reason to "evaluate the likelihood that the defendant will face immigration consequences, investigate potential avenues of relief, minimize such consequences through plea negotiations, or understand how highly the defendant values staying in the United States." Id. at 52. The defendant's silence regarding what he told Attorney Petkun "speaks volumes," Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004), and, while he now claims that his inaccurate statement reflects "a complete breakdown in the attorney-client relationship," "there is nothing credible in this record to suggest that there was any difficulty in the relationship between the defendant and his counsel." Id. at 353. See Commonwealth v. Vaughn, 471 Mass. 398, 403 (2015) ("The defendant bears the burden of proving the facts on which he relies in his motion for a new trial").
The judge properly considered the defendant's failure to subpoena Attorney Petkun; she "would be the obvious witness to present evidence concerning the difficulties encountered" if the defendant did not understand English or had difficulty understanding the legal concepts implicated by his plea. Commonwealth v. Goodreau, supra.
The judge found that Attorney Petkun relied in good faith on the defendant's statements, the judge was the "final arbiter of matters of credibility," Commonwealth v. Schand, 420 Mass. 783, 787 (1995), and we do not think that a failure to recognize a client's untruths constitutes, as the defendant alleges, "supremely ineffective" assistance of counsel. See Commonwealth v. Conley, 43 Mass. App. Ct. 385, 395 n.9 (1997) ("Counsel is usually protected against a claim of ineffective assistance of counsel by a good faith reliance on the client's account of the facts"). The defendant acknowledges that he "would have done anything to avoid being deported to ... Honduras," and the judge was in the best position to decide whether "anything" included misleading the court about his citizenship status. See Commonwealth v. Vaughn, supra at 405 ("[T]he credibility, weight, and impact of the affidavits are entirely within the motion judge's discretion").
The defendant's argument that he "was confused about his own status" is made for the first time on appeal and is not supported by any sworn statements.
Even if Attorney Petkun should have investigated the defendant's claim to have been born in Boston, the defendant has not shown "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The judge was not required to believe that the defendant "would have gone to trial regardless of the risks" had he known that deportation was possible, especially where the record shows, and the defendant does not dispute, that he was advised of that precise consequence. Whether Attorney Petkun could have negotiated, and whether the Commonwealth would have agreed to, a more favorable plea is purely speculative. There is no evidence that the defendant "paid the holder" of the checks he wrote "the amount due thereon, together with all costs and protest fees, within two days after receiving notice" that the checks had "bounced"; accordingly, his writing of the checks constituted "prima facie evidence of intent to defraud and of knowledge of insufficient funds," G. L. c. 266, § 37, as appearing in St. 1955, § 133, and he did not forfeit a substantial ground of defense by admitting to sufficient facts. The judge properly took notice of the defendant's probation records after the judge heard the defendant's objection, see Mass. G. Evid. § 201(d ) (2017) ("[A] party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed"), and "we discern no error of law or abuse of discretion in the judge's conclusion that the [defendant's] motion did not raise a substantial issue warranting an evidentiary hearing or a new trial." Commonwealth v. Cano, 87 Mass. App. Ct. 238, 244 (2015).
While the defendant is not required to "prove the factual basis of" his claim to have a meritorious defense, his submission in support of the motion to withdraw his admission "must contain sufficient credible information to 'cast doubt on' the issue." Commonwealth v. Goodreau, 442 Mass. at 348, quoting from Commonwealth v. Britto, 433 Mass. 596, 608 (2001).
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Order denying motion to vacate admission to sufficient facts affirmed.