Opinion
No. 11–P–1125.
2012-11-27
COMMONWEALTH v. Carlos PENA.
Clarke, supra at 47–48 (footnote omitted).
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the allowance of the defendant's motion to withdraw his guilty plea, which was decided without an evidentiary hearing. In that motion, the defendant asserted that plea counsel rendered constitutionally ineffective assistance in failing to advise the defendant of the immigration consequences of his admissions. Based upon the affidavits submitted by the defendant and motion counsel, a judge of the Boston Municipal Court, who was not the plea judge, granted the defendant's motion. The Commonwealth contends that the judge erred because (1) the affidavits did not allege sufficient facts to support a claim of ineffective assistance of counsel, and (2) even assuming that the affidavits raised a substantial issue with respect to a claim of ineffective assistance of counsel, the judge nevertheless allowed the defendant's motion without conducting an evidentiary hearing. As we hold that the defendant neither met his burden of alleging prejudice nor, at a minimum, raised a substantial issue warranting an evidentiary hearing on the issue, to have allowed the defendant to withdraw his guilty plea under these circumstances was an abuse of discretion. We reverse the order allowing the defendant's motion to withdraw his plea and direct entry of a new order denying the motion. “The defendant's postconviction motion to withdraw a guilty plea is treated as a motion for a new trial, ... is addressed to the sound discretion of the trial judge, and, absent constitutional error, will not be reversed unless it appears that justice may not have been done.” Commonwealth v. Rodriguez, 52 Mass.App.Ct. 572, 581 (2001). In the instant case, “[t]he motion judge took the unusual step of granting what was effectively a motion for a new trial without holding an evidentiary hearing.” Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394 (2012). A judge should hold an evidentiary hearing where, considering “the seriousness of the issue” in conjunction with “the adequacy of the defendant's showing [thereon],” Commonwealth v. Denis, 442 Mass. 617, 628 (2004), the defendant raises a substantial issue supported by substantial evidence. Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). “[A]n evidentiary hearing provides the Commonwealth the opportunity to challenge the evidence presented in the affidavits.... Such a hearing also enables the judge to make the findings of fact required to decide the motion.” Gordon, supra at 395, citing Commonwealth v. Nolan, 19 Mass.App.Ct. 491, 492 (1985) (“[T]he defendant may offer extraneous evidence to supplement [or contradict] the record, but in that event the Commonwealth has a like right to offer evidence”), and Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001) (judge “shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law”). In other words, in denying a new trial motion a judge may discredit a defendant's uncorroborated self-serving assertions, but in allowing a motion he may not credit them over the objection of the Commonwealth without giving the Commonwealth the opportunity for cross-examination to test those assertions.
The defendant was charged with and pleaded guilty to assault and battery by means of a dangerous weapon, assault and battery, and two counts of threatening to commit a crime. The defendant was sentenced, on the two assaultive offenses, to two years in a house of correction, six months to serve, and the balance suspended for two years. For the convictions of threatening to commit a crime, the defendant was sentenced to two years of probation, concurrent with the primary sentence.
The defendant's motion to withdraw his guilty plea, supported only by the defendant's affidavit, was first denied by the motion judge. Upon the defendant's motion for reconsideration in light of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), and accompanied by the affidavit of motion counsel (who was not plea counsel), the motion was allowed.
As here relevant, a claim of ineffective assistance of counsel requires the defendant to demonstrate the prejudicial consequence of counsel's serious incompetency. Commonwealth v. Clarke, 460 Mass. 30, 46–47 (2011). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Thus, to satisfy the familiar two-prong test articulated in Saferian, “a defendant must prove both deficient performance and prejudice.” Commonwealth v. Chleikh, 82 Mass.App.Ct. 718, 722 (2012). To satisfy the latter within the context of a guilty plea, the defendant must accordingly demonstrate a reasonable probability that but for counsel's errors, the defendant would not have pleaded guilty and would have instead insisted on going to trial, and that under the circumstances, those decisions would have been rational. Clarke, supra at 47. See Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010); Premo v. Moore, 131 S.Ct. 733, 743–744 (2011).
On appeal, the Commonwealth first contends that the defendant failed to allege in his affidavit that, but for plea counsel's advice, he would have proceeded to trial and that it would have been rational for him to do so. This deficiency alone, according to the Commonwealth, warrants a reversal of the judge's order granting the defendant's motion to withdraw his guilty plea, and an order directing the court below to deny the motion outright. We agree. Even assuming that counsel rendered constitutionally ineffective assistance, we fail to discern that the defendant's proffer made a showing sufficient to even warrant an evidentiary hearing as to prejudice.
The parties disputed whether, during the plea negotiation process, plea counsel provided the defendant adequate representation under the first prong of Saferian. We need not address this issue because, as discussed infra, the defendant has not raised a substantial issue with regard to the second prong. See Chleikh, 82 Mass.App.Ct. at 725.
Specific to the prejudice prong, the defendant's affidavit stated:
“4. During the pendency of the trial, I told counsel that I never used any weapon or any item that may [be] considered to be a dangerous weapon against anyone, and that I was acting in self-defense during the incident in question.
“5. I feel that a manifest injustice has occurred in this case since I was not made aware that even if the victim was present and available to testify I could have cross-examined her through counsel and show her tendency to lie and present my own defense.”
Under the prejudice prong of Saferian,
“the defendant bears the substantial burden of showing that (1) he had an ‘available, substantial ground of defence,’ [ Saferian, supra ], 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 immigration consequences in deciding whether to plead guilty.”
Clarke, supra at 47–48 (footnote omitted).
This case is unlike Gordon, 82 Mass.App.Ct. at 400–401, where, on the basis that there existed a reasonable probability that a different plea bargain could have been negotiated, the defendant averred facts sufficient to raise a substantial issue as to prejudice. There, the defendant alleged that had plea counsel apprised him of the fact that a sentence of one day fewer would carry altogether different deportation consequences, he would have rejected the plea and sought a trial or a reduction. Id. at 401. The defendant's averments here, however, do not compare favorably to those presented in Gordon. Averring only that he was unaware of his abilities both to cross-examine the victim (in order to show her tendency to lie) and to present his own defense, the defendant here did not indicate that he would have actually proceeded to trial, nor did he suggest a basis for concluding that so proceeding would have been rational. See Clarke, supra at 49 (declining to remand for an evidentiary hearing with regard to the issue of prejudice where “the defendant ha[d] not alleged in his affidavit that had he known the deportation consequences of his plea, he would have insisted on going to trial”).
“A defendant's ‘self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue’ “ warranting an evidentiary hearing. Denis, 442 Mass. at 633–634, quoting from Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). The judge accepted the defendant's self-serving affidavit and uncorroborated allegations in spite of having heard from no witnesses, not only giving it full credit but drawing unsupported inferences therefrom.
Among the “findings of fact” made by the judge, the following are particularly questionable, especially without the benefit of having conducted an evidentiary hearing:
“7. [Plea counsel] did not tell [the defendant] that as a result of his plea, conviction and sentence he would be deported.
“8. If [the defendant] had been told that a result of his plea would be deportation or removal, he would have rejected the court's sentence, withdrawn his tender of admission and insisted on a trial.
“9. At the time of his plea a significant majority of the jury trials in the Central Division of the Boston Municipal Court Department resulted in not guilty verdicts on the most serious counts of the complaints.
“10. There is a reasonable probability that but for the error of counsel there would have been a significant, different, more favorable result in the disposition of [the defendant's] case and the effect it would have had on his immigration status.”
Likewise, the defendant's self-serving and uncorroborated assertions that he never used a dangerous weapon and that he acted in self-defense are scant evidence of an otherwise available, substantial ground of defense. There is no showing here of a reasonable probability of an alternative plea bargain. Additionally, the defendant has put forth no evidence of special circumstances demonstrating particular importance he placed on avoiding deportation.
Indeed, the record shows this to have been a disparate plea and that the judge rejected the defendant's first proposal for a continuance without a finding.
In short, the defendant has failed to “make a substantial evidentiary showing” (see Stewart, 383 Mass. at 260) that it would have been rational for him to reject the guilty plea, and specifically that had he so opted, it was reasonably probable he would have avoided the deportation consequences he now faces. Clarke, 460 Mass. at 49. Consequently, the order allowing the defendant's motion to withdraw his guilty plea is reversed and a new order is to enter denying the motion.
So ordered.