Opinion
No. 11–P–1855.
2012-11-19
COMMONWEALTH v. Jamesson MYRTHIL.
By the Court (WOLOHOJIAN, BROWN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the defendant, Jamesson Myrthil, entered a plea admitting to sufficient facts of possession of crack cocaine, his immigration status changed from nondeportable to deportable. On appeal, Myrthil contends that the motion judge erred in denying his motion for new trial based on ineffective assistance of counsel. We affirm.
Background. In April, 2007, police initiated a motor vehicle stop after witnessing Myrthil litter from a vehicle in which he was a passenger. As the police approached the vehicle, they saw Myrthil holding a white piece of paper folded in half with marijuana in the middle. Myrthil was removed from the car and police conducted a search of the vehicle. The police found what was later determined to be crack cocaine on the floor where Myrthil was sitting. He was arrested for possession of cocaine and marijuana. During booking, and after receiving Miranda warnings, Myrthil admitted to smoking both the crack cocaine and marijuana that was found in the vehicle.
In August, 2007, Myrthil entered into a plea agreement whereby, in exchange for admitting to sufficient facts of cocaine possession, his case would be continued without a finding for one year with a condition of abstaining from drugs and alcohol. The docket sheet contains a stamped notice that Myrthil was “advised of possible alien consequences during plea colloquy. [G.L. c. 278, § 290].” On the tender of plea form, Myrthil signed the section titled “Defendant's Waiver of Rights [and] Alien Rights Notice.” The trial judge also signed the tender of plea form swearing that he advised Myrthil of possible alien consequences of his plea.
Myrthil did not successfully complete his term of probation because he was convicted of drug offenses and held in contempt in Plymouth County while he was on probation in this case. Upon his conviction in Plymouth County, the defendant admitted to a violation of probation and was sentenced to ninety days in a house of correction.
The Plymouth County drug convictions were subsequently reversed on Melendez–Diaz grounds. Massachusetts v. Melendez–Diaz, 557 U.S. 305 (2009). The judgment of contempt was affirmed.
In 2009, the Department of Homeland Security initiated removal proceedings against Myrthil because he had admitted to sufficient facts for possession of cocaine. After a hearing, an immigration judge denied Myrthil's application for cancellation or withholding of removal.
In 2011, Myrthil filed a motion for new trial in which he sought to withdraw his plea on the ground that his trial counsel failed to specifically advise him that his admission to the charge of cocaine possession would immediately change his immigration status from nondeportable to deportable. The motion judge denied Myrthil's motion on the ground that he had not established sufficient prejudice.
Discussion. On appeal, Mythril does not argue that he had an “an available, substantial ground of defence,” or that there was a reasonable probability that a different plea bargain would have been negotiated. See Commonwealth v. Clark, 460 Mass. 30, 47 (2011) (citation omitted). Rather, Myrthil contends that had he been properly advised of the immigration consequences of his plea, he would have proceeded to trial because “the prospect of being deported to Haiti would have been particularly daunting because that country was, and is, entirely foreign to him.” We perceive this to be an argument that “ ‘special circumstances' ... support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Id. at 47–48 (citation omitted).
Myrthil was advised of the potential adverse consequences of his plea orally by the judge and in writing, which he signed. See Clark, 460 Mass. at 48 n. 20 (notice of possible immigration consequences is highly relevant to the question of prejudice). There were no concerns of special circumstances raised, and there was no effort to tailor his plea in a way that would have more favorable to his immigration status. Nor is there evidence that a different plea could have been negotiated. Id. at 47 n. 18. Myrthil raises concerns of “special circumstances” for the first time on appeal. We conclude that the motion judge did not abuse his discretion in determining that Myrthil did not meet the substantial burden he bears in order to prevail on the issue of prejudice. See Clark, 460 Mass. at 47.
Myrthil also argues that the motion judge abused his discretion by denying the motion for new trial without holding an evidentiary hearing. Where a motion for new trial was made without any supporting affidavits and raises only a question of law, it is within the judge's discretion to decide the motion without holding an evidentiary hearing. Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394–395 (2012).
Order denying motion for new trial affirmed.