Opinion
21-P-994
09-29-2022
COMMONWEALTH v. JOSE ANGEL GUERRERO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from the denial, without a hearing, of his motion to withdraw his guilty plea and for a new trial. He raises three arguments on appeal. First, he contends that the judge abused her discretion in acting on the motion without conducting an evidentiary hearing. Second, he argues that the motion was erroneously denied because he established both that plea counsel failed to correctly advise him of the immigration consequences of his plea, and that he was prejudiced by that failure. Third, he argues that the United States Supreme Court, in Lee v. United States, 137 S.Ct. 1958, 1968-1969 (2017), adopted a subjective test for prejudice, which we should adopt instead of the objective test established in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). We affirm.
Background.
In 2015, the defendant, who was a lawful permanent resident of the United States, was under investigation by the New Bedford police department. That investigation resulted in a search warrant that was executed at an apartment where the defendant stayed with his girlfriend, and to which he had a key. The search led to the discovery of more than thirty- six grams of heroin, along with various items associated with the distribution and sale of drugs. Based on the drugs found during the search of the apartment, the defendant was charged, on May 21, 2015, with trafficking in thirty-six or more grams heroin, in violation of G. L. c. 94C, § 32E (c) (2).
After active litigation, including the filing and denial the defendant's motions to suppress and to dismiss, and a final pretrial conference, the case was scheduled to be tried to a jury beginning April 9, 2018. A few days before the scheduled trial date, however, the defendant pleaded guilty to the reduced charge of possession with intent to distribute a class A substance, in violation of G. L. c. 94C, § 32 (a). He was sentenced to State prison for a term of not less than one and one-half years, and not more than two years.
On October 6, 2020, the defendant was removed from the United States. On February 22, 2021, the defendant filed the motion to withdraw his guilty plea and for a new trial, accompanied by affidavits from plea counsel, the defendant, and his former girlfriend, with whom he shares two children. The motion was denied without hearing, and this appeal followed.
The defendant initially filed an emergency motion seeking similar relief on September 16, 2020, shortly before his removal from the United States. That motion was denied without prejudice because the defendant failed to provide a copy of the plea transcript.
Discussion.
"A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454 Mass. 101, 106 (2009). Such a motion "is addressed to the sound discretion of the [plea] judge, and . . . will not be reversed unless it is manifestly unjust, or unless the [plea hearing] was infected with prejudicial constitutional error." Commonwealth v. Colon, 439 Mass. 519, 524 (2003), quoting Commonwealth v. Russin, 420 Mass. 309, 318 (1995). See Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016) ("We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion" [quotation and citation omitted]).
The defendant first argues that the motion judge - who was also the plea judge - abused her discretion in denying his motion without conducting an evidentiary hearing. A judge is permitted to rule on a motion for a new trial without conducting an evidentiary hearing unless "the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.'" Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). See Commonwealth v. Coggins, 324 Mass. 552, 557, cert. denied, 338 U.S. 881 (1949), quoting Commonwealth v. Millen, 290 Mass. 406, 410 (1935) ("A party has no right to insist that oral evidence be heard upon a motion. He may be required to present the evidence upon affidavits alone. . . .A judge is no more bound to accept as true an uncontradicted affidavit than to believe an uncontradicted witness"). "In determining whether a motion for a new trial warrants an evidentiary hearing, both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered." Commonwealth v. Denis, 442 Mass. 617, 628 (2004).
Where, as here, the motion for new trial raises a claim of ineffective assistance of counsel, it ordinarily "raises 'an issue of constitutional importance' that readily qualifies as a serious issue" depending on the adequacy of the showing with respect to that issue. Denis, 442 Mass. at 629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992). Accordingly, "[a]lthough the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue." Denis, supra. "The judge's conclusion that the defendant's motion and affidavit[s] did not raise a substantial issue is entitled to substantial deference." Commonwealth v. Britto, 433 Mass. 596, 608 (2001). "Particular deference is to be paid to the rulings of a motion judge who served as the [plea] judge in the same case." Scott, 467 Mass. at 344. See Commonwealth v. Ciampa, 51 Mass.App.Ct. 459, 463 (2001) ("Because [the motion judge] was also the plea judge, that judge was in a superior position to assess the credibility of the defendant's claim that he had not received the warnings [about immigration consequences of a guilty plea]" [quotation and citation omitted]).
In his affidavit supporting the motion for a new trial, the defendant averred that, at the time he was considering whether to plead, he "misunderstood the immigration laws," and "believed that an immigrant like [the defendant] had to serve more than one year of incarceration to be subject to removal from the United States." He did not, however, claim that this misunderstanding was caused by any affirmative misstatement of plea counsel; instead, he claimed that plea counsel "never told me anything that contradicted this belief that I now know was incorrect." Furthermore, the defendant averred that plea counsel did not inform him that the possession with intent to distribute was an aggravated felony for purposes of the immigration laws and would result in mandatory removal and exclusion from the United States.
Plea counsel's affidavit in support of the defendant's motion buttressed the defendant's assertions. Plea counsel averred that he "would not have advised [the defendant] that a conviction for Possession to Distribute a Class A Drug is an aggravated felony for immigration purposes and that he would face presumptively mandatory lifetime deportation and permanent exclusion from admission to the United States." He also stated that it was not his standard practice at the time to advise his clients "that their plea would carry mandatory immigration consequences if that were the case," and that he "also did not advise clients about any defenses that they would have if they were placed in removal proceedings." Plea counsel averred that his practice at the time "consisted of the alien warnings included in the Alien Rights Notice provided on the tender of plea that he signed on the date of his plea."
The judge found that the affidavits did not raise a substantial issue requiring an evidentiary hearing because the assertions in the affidavits were not credible in that they were contradicted by the defendant's statements during the plea colloquy. The judge was entitled to make such a credibility determination, Commonwealth v. Lys, 481 Mass. 1, 5 (2018) (in determining whether motion and affidavits raise "substantial issue," "motion judge need not accept statements in the defendant's affidavits as true, even if the statements are undisputed"), and we accord it deference particularly given that the judge had conducted the plea colloquy. See Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 639 (2007) ("the defendant's sworn statements at colloquy have undeniable bearing and heft in resolving a later claim to the contrary. . . .The defendant's statements are no less important where his challenge to the intelligent nature of the plea, or its voluntariness, is grounded on extraneous evidence outside the contemporaneous record of the plea proceeding").
Specifically, among other things, the following exchange occurred during the plea colloquy:
The judge: "Mr. Guerrero, if you're not a citizen of the United States you are advised that the acceptance by this court of your plea of guilty will have the consequences of deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Understanding this, do you still wish to plead guilty to this indictment?"
Defendant: "Yes."
The judge: "[Plea counsel], have you investigated the adverse immigration consequences that will result in conviction on the pending charge and have you discussed that with him?"
Plea counsel: "Yes, I have, Your Honor."
The judge: "Thank you. Mr. Guerrero, has [plea counsel] advised you of the consequences, the immigration consequences?"
Defendant: "Yes."
. . .
The judge: "Are you confused in any way by any of the questions that I've asked you?"
Defendant: ''No.''
The judge: "Are there any questions that you have now that you would like to discuss with [plea counsel] in private before I accept your plea?"
Defendant: "No."
Although we conclude that the judge did not abuse her discretion in deciding not to conduct an evidentiary hearing, we note that the more common practice is to conduct at least a nonevidentiary hearing where the defendant's motion for new trial is supported by an affidavit of counsel admitting to a lapse in performance.
The defendant next argues that the judge erred in denying his motion for a new trial because he received ineffective assistance of counsel based on plea counsel's failure to adequately advise him of the immigration consequences of his plea. In order to prevail on this claim, the defendant must show that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
In Padilla v. Kentucky, 559 U.S. 356, 374 (2010), the United States Supreme Court held that, because of "the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country," "counsel must inform her client whether his plea carries a risk of deportation." Following Padilla, the Supreme Judicial Court has held that a failure by counsel to inform his or her client that tendering a guilty plea "carried a substantial risk of deportation," the first prong of the Saferian test of ineffectiveness is satisfied. Clarke, 460 Mass. at 46. See Commonwealth v. Marinho, 464 Mass. 115, 126 (2013) ("Because [i]t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation, and the defense counsel in the present case failed to do so, we conclude that his performance fell measurably below that which might be expected from an ordinary fallible lawyer" [quotations and citations omitted]).
But "[t]o succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious incompetency must be prejudicial." Clarke, 460 Mass. at 46-47. Prejudice "in this context, means a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). Where, as here, the relevant "proceeding" is the defendant's tendering of a guilty plea, "the defendant has the burden of establishing 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, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). "At a minimum, this means that the defendant must aver that to be the case." Clarke, supra, citing Hill, supra at 60. Further,
"[the defendant] must 'convince the court that a decision to reject the plea bargain would have been rational under the circumstances.' Padilla, . To prove the latter proposition, the defendant bears the substantial burden of showing that (1) he had an 'available, substantial ground of defence,' Commonwealth v. Saferian, [366 Mass.] at 96, 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 [the] immigration consequences in deciding whether to plead guilty. Hill, supra." (Footnote omitted.)Clarke, supra at 47-48. "If an assessment of the apparent benefits of a plea offer is made, it must be conducted in light of the recognition that a noncitizen defendant confronts a very different calculus than that confronting a United States citizen. For a noncitizen defendant, preserving his 'right to remain in the United States may be more important to [him] than any jail sentence.'" Commonwealth v. DeJesus, 468 Mass. 174, 184 (2014), quoting Padilla, supra at 368. "Thus, a determination whether it would be rational for a defendant to reject a plea offer 'must take into account the particular circumstances informing the defendant's desire to remain in the United States.'" DeJesus, supra, quoting People v. Picca, 97 A.D.3d 170, 183-184 (2d Dept. 2012).
Here, like the motion judge, we accept arguendo that the defendant established the first prong of the Saferian test. Turning to the second prong, the judge analyzed all three of the Clarke alternative forms of prejudice. We see no error in the judge's conclusion with respect to the first; namely, that the defendant did not show or argue that he would have had a substantial ground of defense had he gone to trial instead of tendering a guilty plea. We likewise see no error in the judge's conclusion that the defendant did not have a reasonable possibility of getting a better plea deal than the one he accepted. During pre-plea discussions, the judge herself said that she would not entertain a sentence less than the one she ultimately imposed. See Commonwealth v. Lastowski, 478 Mass. 572, 579 (2018) ("The motion judge, who was the plea judge, was of course in the best position to know whether he would have found [the more favorable disposition requested by the defendant] acceptable").
We also conclude that the judge did not abuse her discretion in determining that the defendant failed to show "special circumstances" that "support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences when deciding whether to plead guilty." Clarke, 460 Mass. at 47-48. The defendant averred that he came to the United States in 2009, at the age of seventeen, from the Dominican Republic, and had been a lawful permanent resident in this country until his removal on October 6, 2020. He attended New Bedford high school and maintained employment during his time in the United States. He is the father of two small children who reside here, and his father and two sisters are United States citizens. He financially supported his children with the money he earned in his employment in this country. All of these things weighed in favor of a finding of "special circumstances." But it is also true, as the motion judge found, that the defendant spent the majority of his life in the Dominican Republic; he still has family members in that country; his primary language is Spanish; he is no longer in a relationship with the mother of his children, and he had not lived in the house with them; and his work and education history in the United States were truncated. Further, the affidavit from plea counsel did not corroborate the defendant's assertion that immigration consequences had been particularly important to him. On this record, the judge did not abuse her discretion in weighing these competing factors. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (judge's decision an abuse of discretion only where "decision falls outside the range of reasonable alternatives").
Finally, relying on the dissent in Lee, 137 S.Ct. at 1974, the defendant argues that the majority opinion in that case adopted a subjective test for prejudice, which we should adopt instead of the objective test established in Clarke, 460 Mass. at 47-48. Setting aside whether the defendant's reading of Lee is correct (a matter about which we have doubt), the Appeals Court has "no power to alter, overrule or decline to follow the holding of . . . the Supreme Judicial Court" in Clarke. Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485 (2003). Order denying motion to withdraw plea and for new trial affirmed.
By the Court
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.