Opinion
19-P-1603
12-10-2020
COMMONWEALTH v. JEONG W. KIM.
NOTICE: 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 Commonwealth appeals from an order allowing the defendant, Jeong W. Kim, to withdraw his admission to sufficient facts and for a new trial, on the basis of ineffective assistance of counsel. The Commonwealth asserts that the Boston Municipal Court judge abused his discretion by allowing the motion because the defendant, who had emigrated from South Korea and was a legal permanent resident of the United States, failed to show that plea counsel gave him inadequate advice about the immigration consequences of his plea or that he was prejudiced by counsel's inadequate advice. We affirm.
Background. The defendant was charged with one count of indecent assault and battery on a person fourteen years of age or older. On the date the case was scheduled for trial, the defendant admitted to sufficient facts, and the judge continued the case without a finding for eleven months. After the clerk read the sentence, plea counsel asked the judge to lift the standard probation condition limiting the defendant's domestic travel. The Commonwealth assented, and the judge allowed the request. The judge also indicated, in response to counsel's further inquiry, that the defendant could later seek permission to travel outside the United States. Less than two months later, the defendant appeared in court twice with a request for permission to travel internationally, which was granted by a different judge.
When the defendant attempted to reenter the United States after the international trip, he was detained by immigration officials because of his conviction for a sex offense. He was permitted to return to the United States for deportation proceedings. The defendant promptly filed a motion under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), to vacate the admission to sufficient facts or, in the alternative, to revise and revoke the sentence. Following an evidentiary hearing, the motion judge, who was also the plea judge, found that the defendant's plea counsel did not adequately advise him of the immigration consequences of his admission to sufficient facts, and that the defendant had demonstrated "special circumstances" warranting revocation of his plea and a new trial.
See Commonwealth v. Villalobos, 437 Mass. 797, 802-803 (2002), citing 8 U.S.C. § 1101(a)(48)(A) (2000) (unlike Massachusetts law, Federal law considers admission to sufficient facts followed by continuance without finding to be "conviction").
Discussion. An admission to sufficient facts is "the functional equivalent of a guilty plea." Commonwealth v. Greene, 400 Mass. 144, 145 (1987). See Commonwealth v. Furr, 454 Mass. 101, 101 n.1 (2009). "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). A judge has the discretion to grant a motion for a new trial where it appears "justice may not have been done." Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We will not disturb a judge's allowance of a motion to vacate a guilty plea unless there was an abuse of discretion or a significant error of law. See DeJesus, supra.
To succeed on a motion to vacate a guilty plea on the ground of ineffective assistance of counsel, "the defendant bears the burden of showing that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice" as a result. Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). That is, the defendant must show both deficient performance and prejudice in order to prevail. See Clarke, supra at 46-47.
1. Counsel's performance. With respect to the performance prong, "defense counsel's failure to advise a client that a consequence of his guilty plea likely would be deportation constitute[s] ineffective assistance of counsel." Clarke, 460 Mass. at 31, citing Padilla v. Kentucky, 559 U.S. 356, 369 (2010). The Commonwealth contends counsel sufficiently informed the defendant of the immigration consequences of his plea. The record reflects that plea counsel and the defendant were both aware that the defendant's admission to sufficient facts could have immigration consequences. During the colloquy, plea counsel stated that the disposition might result in the defendant's deportation and would cause the "loss of his immigration benefits." The defendant signed a waiver form acknowledging that he understood that his admission to sufficient facts "may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization" and that those consequences would be "practically inevitable" if the offense was "one that presumptively mandates removal." The defendant's attorney also signed the waiver, attesting that he had discussed these consequences with the defendant. The plea judge advised the defendant of these possible consequences, as required by G. L. c. 278, § 29D, and the defendant testified that he understood.
Counsel also speculated aloud that a continuance of only eleven months might "somehow . . . influence an immigration court to look at this differently," but immediately followed that statement with, "I don't think it will, I think that his loss of immigration benefits is certain, and I've told him that."
Nonetheless, the evidence supports the judge's finding that plea counsel provided deficient advice. It is clear that counsel had only a vague understanding of immigration law. He was ignorant about the difference between deportability and inadmissibility. Significantly, plea counsel did not know, and failed to inform the defendant, that that an admission to sufficient facts with respect to a sex offense would render the defendant inadmissible to the United States were he to travel outside the country, and would result in deportation if he attempted to reenter.
Indecent assault and battery on a person fourteen years of age or older is a crime involving "moral turpitude." See Maghsoudi v. Immigration & Naturalization Serv., 181 F.3d 8, 14 (1st Cir. 1999), citing 8 U.S.C. § 1227(a)(2)(A)(ii) (1994). Because the defendant had legally resided in the United States for more than five years, the conviction did not make him automatically deportable. See 8 U.S.C. § 1227(a)(2)(A)(i)(I) (2018). Notwithstanding lawful permanent resident status, however, a conviction for a crime involving moral turpitude is grounds for "inadmissibility" to enter (or reenter) the United States. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018). Furthermore, an inadmissible noncitizen who attempts to enter the United States is subject to deportation. See 8 U.S.C. § 1227(a)(1)(A) (2018).
Whether the United States Attorney General retains the discretionary power to cancel the deportation of a lawful permanent resident who has resided continuously in the country for many years, but then leaves the country and attempts to reenter after being convicted of a crime of moral turpitude, is a complex question. See Commonwealth v. Lopez, 96 Mass. App. Ct. 34, 35 (2019); 8 U.S.C. § 1229b (2018); DeVega v. Gonzales, 503 F.3d 45, 47 (1st Cir. 2007). However, the defendant's intention to travel internationally, and the provisions regarding the inadmissibility and deportation of noncitizens attempting to reenter after being convicted of a sex offense, were sufficiently clear that counsel had a duty to correctly advise the defendant of these consequences.
Tellingly, the record demonstrates that the defendant intended to travel internationally during the probationary period, and that plea counsel believed that the only impediment to such travel was a condition of probation. Counsel's advice was not only deficient, but affirmatively led the defendant to expose himself to deportation. "When the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences"; however, "when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." Padilla, 559 U.S. at 369. The record amply supports the judge's finding that counsel failed to provide the defendant adequate advice about the consequences of his plea.
2. Prejudice. The Commonwealth also argues that the defendant did not demonstrate that plea counsel's deficient performance prejudiced him. To show prejudice, "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, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372. To that end, the defendant must show one of the following: that he had a substantial ground of defense, that a more favorable plea bargain could have been negotiated, or "the presence of 'special circumstances' that supports the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, supra at 47-48, quoting Hill, supra at 60.
The defendant's affidavit, supporting documentation, and testimony all support the judge's finding that the defendant was facing "an active deportation proceeding." However, such a finding is not a necessary element of a Padilla claim. To withdraw a guilty plea due to the absence of any of the statutory immigration warnings required by G. L. c. 287, § 29D, the defendant must show that he is subject to the consequence of which he was not informed. See Commonwealth v. Grannum, 457 Mass. 128, 134 (2010); Commonwealth v. Casimir, 68 Mass. App. Ct. 257, 259 (2007). However, such a showing is not required to prove the prejudice necessary to make out a constitutional claim of ineffective assistance.
The motion judge found that the defendant's "desire to be a U.S. Citizen and his current status as a resident alien are 'special circumstances' in that [the defendant] placed particular emphasis on immigration consequences in deciding how to proceed on his case." The finding was sound as a matter of law. See DeJesus, 468 Mass. at 184, quoting Padilla, 559 U.S. at 368 ("For a noncitizen defendant, preserving his 'right to remain in the United States may be more important to [him] than any jail sentence'").
As we conclude that the judge's finding of special circumstances is sufficient to affirm the allowance of the defendant's motion, we need not address the judge's additional finding that the defendant could have presented a substantial defense had he gone to trial.
It was also supported by the evidence. The defendant came to the United States with his immediate family when he was fifteen years old and has remained ever since, graduating from the Georgia Institute of Technology in 2014 and moving to Waltham in 2017, where he was employed as an analyst in the travel information technology industry. He remained close with his mother, father, and brother, who all resided in the United States and to whom he provided regular financial support. He had no close relatives in South Korea, would have difficulty finding employment there after completing mandatory service in the Korean military, and had "absolutely no idea where [he] would live." During the plea negotiations, a continuance without a finding was attractive because it would not affect his citizenship application. However, had he known his admission to sufficient facts would subject him to deportation -- and possibly a lengthy period of incarceration in immigration custody -- he would have taken his chances by going to trial. As he stated in his affidavit, "Anything would have been better than losing my status in this country and getting deported, and if having these immigration consequences or going to trial were my only choices, I would have had nothing to lose by going before a jury."
We discern no error in the judge's determination that, at the time he admitted to sufficient facts, see Commonwealth v. Lys, 481 Mass. 1, 10 (2018), the defendant would have placed particular emphasis on immigration consequences in determining whether to proceed to trial.
Conclusion. The order allowing the defendant's motion to vacate his admission to sufficient facts and for a new trial is affirmed.
So ordered.
By the Court (Massing, Kinder & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 10, 2020.