Opinion
14-P-665
11-24-2015
COMMONWEALTH v. JACOBSON LABADY.
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
On September 28, 1994, following a jury trial, the defendant, Jacobson Labady, was convicted of malicious destruction of property having a value greater than $250, and of being an accessory after the fact to assault and battery by means of a dangerous weapon. He was sentenced to a term of three to five years in State prison, suspended for three years, with an order to pay $875 in restitution and a fine of $635 during a concurrent term of three years' probation. He did not appeal the convictions or the sentence.
In September of 2013, nearly nineteen years later, the defendant moved to revise or revoke his sentence, pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), and citing Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983). The defendant contended that trial counsel provided ineffective assistance by failing either to file a motion to revise or revoke the sentence, or to advise the defendant of his right to file such a motion within sixty days after sentencing or the conclusion of the appellate process, and that, as stated by the motion judge, "had [the defendant] known of the right, he would have filed such a motion so as to protect his future opportunity to become a citizen." In the defendant's view, this failure, combined with counsel's failure to advise the sentencing judge of the defendant's alien status, together constituted ineffective assistance of counsel. The motion judge, who was not the trial judge, denied the motion in a careful memorandum. We affirm.
The defendant is a longtime legal permanent resident. He filed this motion to revise or revoke because his immigration attorney informed him that, because of the length of his sentence he would be ineligible for citizenship and, should he apply for naturalization, he could be subject to removal proceedings.
Background. We take the underlying facts from the "Commonwealth's statement of the case," filed at the time of trial and contained in the record appendix. Apparently, the defendant was present with his codefendant when two men, the victims in the case, came to collect a debt owed by the codefendant. At some point, the two victims fled from the building and the codefendant "began firing shots with his 9 mm automatic weapon." One victim was hit in the foot and the codefendant continued to fire as the two victims ran away. The defendant then "kicked in the driver's side window of [one of the victims'] car." The codefendant continued to fire at the stationary vehicle and then ran, with the defendant, to the defendant's vehicle. With the defendant in the driver's seat, the two drove "in the same direction as the victims had run." Responding police officers observed the vehicle and followed it into the parking lot of a mall. The codefendant got out of the car and fell; he then picked up his gun, a nine millimeter caliber Jennings firearm and apparently deposited it on a large pile of snow as he ran back to his apartment. The defendant was arrested immediately.
Discussion. The defendant's motion to revise or revoke his sentence was untimely, as it was not filed within sixty days of sentencing. See Mass.R.Crim.P. 29(a). The question is whether trial counsel was ineffective for not either timely filing the motion or advising the defendant that he could file it, but only within the requisite time period. See Commonwealth v. Stubbs, 15 Mass. App. Ct. 955, 955 (1983). In order to succeed on a claim of ineffective assistance of counsel, the defendant must demonstrate that (1) "there has been 'behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer'" and (2) that "it has likely deprived the defendant of an otherwise available substantial ground of defence." Commonwealth v. Sylvain, 466 Mass. 422, 427 n.5 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
In Stubbs, supra, the defendant alleged that his lawyer had promised to file a motion to revise or revoke and never did so. This court concluded that "[i]f there is a finding of ineffective assistance of counsel based on counsel's failure to file in a timely manner, as he promised, a motion to revoke or revise sentence, the judge should vacate the sentence and reimpose it, thereby affording the defendant an opportunity to file timely a motion pursuant to Mass.R.Crim.P. 29(a) to revise the new sentence" (emphasis supplied).
This defendant fails on both grounds. First, the defendant makes no showing that an ordinary fallible lawyer would have anticipated in 1994 the immigration consequences created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (IIRIRA) (effective April 1, 1997), which "eliminated the Attorney General's authority to grant discretionary relief from deportation." Padilla v. Kentucky, 559 U.S. 356, 363 (2010). As the court made clear in Sylvain, supra at 424, it is "defendants whose State law convictions were final after April 1, 1997, [who] may attack their convictions collaterally on Padilla grounds." Nor, unlike in Stubbs, did trial counsel promise to file the motion to revise or revoke the sentence and then fail to do so. 15 Mass. App. Ct. at 955.
In addition, this was a trial, not a decision to plead guilty, and the defendant makes no showing whatsoever that advising the trial judge of his immigration status at the time of sentencing or thereafter filing a motion to revise or revoke the sentence would have accomplished something better for him -- that is, would have changed what was, in fact, a relatively lenient sentence, given the crimes for which he was sentenced.
On appeal, the defendant essentially concedes that the teachings of Padilla and Sylvain do not apply to him. He argues instead that, "[i]n 1994 immigration law provided for the non-discretionary deportation and ineligibility for nationalization [sic] for Labady as a consequence of a five year sentence, and even if for some reason Labady's conviction was non-discretionary [then] it would certainly have been discretionary." This argument is presented for the first time on appeal and without citation to any relevant Federal or Massachusetts law. It is therefore waived. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).
Order denying motion to revise or revoke affirmed.
By the Court (Green, Rubin & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 24, 2015.