Opinion
19-P-808
06-17-2020
COMMONWEALTH v. GREGORY KING.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Gregory King, appeals from an order denying his motion for a new trial. The defendant claims that his trial counsel was ineffective for failing to properly advise him of the immigration consequences of his guilty plea pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), such that his guilty plea was not knowing and voluntary. We affirm.
Background. On August 30, 2005, a grand jury indicted the defendant, charging him with unlawful distribution of a Class B controlled substance (cocaine), in violation of G. L. c. 94C, § 32A (c) (first indictment), and unlawful distribution of a Class B controlled substance within 1,000 feet of a school, in violation of G. L. c. 94C, § 32J (second indictment). On June 7, 2006, the defendant pleaded guilty to possession of a Class B substance with intent to distribute, in violation of G. L. c. 94C, § 32A (a), which is a lesser included offense of unlawful distribution of a Class B substance. Unlike the original charge, which carried a mandatory minimum sentence of imprisonment for one year, see G. L. c. 94C, § 32A (c), as then in effect, the lesser included charge did not carry a mandatory minimum sentence, see G. L. c. 94C, § 32A (a), as then in effect. In connection with the plea, the Commonwealth dismissed the second indictment, which at that time carried a mandatory minimum sentence of two years of imprisonment from and after any sentence on the first indictment. See G. L. c. 94C, § 32J, as inserted by St. 1989, c. 227, § 2. The judge accepted the defendant's plea, and he was sentenced to two years of probation.
See G. L. c. 94C, § 32A (a), (c), as appearing in St. 1982, c. 650, § 7.
On the plea date, the defendant and his plea counsel signed a waiver of defendant's rights form. The defendant signed the waiver of rights section of the tender of plea form, acknowledging:
"I understand that if I am not a citizen of the United States, a conviction in the above case(s) could result in my deportation or exclusion from admission to the United States under [F]ederal immigration law and that I may be rejected as an applicant for citizenship in the United States."Plea counsel signed the defense attorney's approval, acknowledging:
"I have discussed this case and the plea recommendation with my client in detail and have advised the defendant of all matters within the scope of Massachusetts Rules of Criminal Procedure Rule 12, including, the constitutional and other rights of the accused, the factual basis for and the nature of the offense or offenses to which the guilty plea will be entered, possible defenses, and the consequences of the guilty plea. After explaining the above to the defendant, I am satisfied that the defendant has understood my explanation."Nothing in these warnings informed the defendant "that all of the conditions necessary for removal would be met by the defendant's guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities." Commonwealth v. DeJesus, 468 Mass. 174, 182 (2014).
Twelve years later, the defendant moved for a new trial, claiming that he was denied effective assistance of counsel. Specifically, he claimed that his plea was involuntary because his plea counsel "failed to inform him . . . of the immigration consequences[s] of his admission" as required under Padilla. He further claimed that "he would not have [pleaded] had his trial attorney advised him of the immigration consequences of his plea," and that a "decision not to plead would have been rational under the circumstances."
In support of his motion, the defendant filed two affidavits: one from himself and one from his postconviction counsel. In his own affidavit, the defendant claimed that plea counsel had failed to advise him correctly about the immigration consequences of his plea, and that he would not have pleaded guilty had he known of those consequences. Postconviction counsel's affidavit set out the law establishing that the defendant's plea makes him subject to mandatory deportation, stated that the defendant's plea counsel was addicted to drugs at the time of the plea, and said that he had attempted to locate plea counsel to speak with him but was unable to do so. The record includes a disbarment order concerning plea counsel, which states that bar counsel's investigation commenced two years after the plea here. The disbarment order also accepts that plea counsel was addicted to heroin and OxyContin.
In denying the defendant's motion for a new trial without an evidentiary hearing, the motion judge did not credit the defendant's affidavit and concluded the defendant had not met his burden of proof.
Discussion. "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)." DeJesus, 468 Mass. at 178. When a defendant appeals from the denial of his motion for new trial, we review "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 350 (2009), quoting Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
When a motion for a new trial is based on a claim of ineffective assistance, "[t]o prevail, 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 because of his attorney's unprofessional errors." Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).
The defendant argues that the judge was required to credit the defendant's affidavit. Although we acknowledge plea cousnsel's disbarment, the motion judge acted within her discretion in declining to credit the defendant's affidavit. "A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial and may evaluate them in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Torres, 469 Mass. 398, 403 (2014). To be sure, where the failure to obtain an affidavit from plea counsel has been explained to the judge in some detail in affidavits, we have in some cases remanded for an evidentiary hearing where a judge has rejected the defendant's own affidavit, see, e.g., Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 552 (2014); the defendant has not asked us to remand for such a hearing. And there is no case in which we have gone so far as the defendant suggests, and held that a judge is required to credit a defendant's own affidavit.
Even had the defendant sought a remand for an evidentiary hearing, the bare-bones statement contained in motion counsel's affidavit that "I have attempted to locate attorney Clifford to speak with him about this case but have been unable to do so," would not have provided sufficient evidence of the diligence of counsel's efforts to warrant a remand for such a hearing.
Because the judge was not required to credit the defendant's affidavit, her conclusion that there has not "been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), was not error. We therefore need not address the question of prejudice.
Order denying motion for new trial affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 17, 2020.