Opinion
11-P-664
12-12-2011
COMMONWEALTH v. KENSON A. PHILLIPS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from the denial of his motion for new trial and motion to reconsider that denial, the defendant argues that defense counsel's misadvice regarding the immigration consequences of the defendant's guilty pleas denied him the effective assistance of counsel. We affirm. The motion judge's factual findings establish that defense counsel's advice regarding the likely immigration consequences of the defendant's guilty pleas was accurate and did not fall measurably below an objective standard of reasonableness, as required under Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).
The motion judge credited the testimony of the defendant's attorney and discredited contrary averments in the defendant's affidavit and in testimony from the defendant's family members.
The motion judge properly rejected the defendant's argument that defense counsel misadvised the defendant by explaining that he was 'likely' (rather than 'certain') to be deported as result of his pleas. An experienced attorney who had consulted immigration attorneys in the past, defense counsel was acutely aware of the defendant's immigration concerns and advised the defendant about the likely immigration consequences of the charges each time they appeared in court. Counsel was aware that any person convicted of a felony involving distribution or possession with intent to distribute narcotics likely would be deported.
Indeed, defense counsel's advice to the defendant that his pleas were 'likely' to result in deportation differs little from the opinion set forth in the supporting affidavit of the defendant's immigration expert that deportation for an aggravated felony was 'most likely.'
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The case against the defendant, who was present when the police executed the search warrant, was compelling. Although the Commonwealth was not ready for trial because of the unavailability of the chemist required under Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009), any dismissal by the judge would have been without prejudice and would have exposed the defendant to indictment and more serious penalties. Counsel presented the defendant with the Commonwealth's offer to reduce the charges and avoid a sentence of incarceration by pleading guilty, telling the defendant that if he were to accept the favorable disposition offered by the Commonwealth, he 'would likely be deported.' Counsel explained further that there was a 'good chance' he would be deported back to Trinidad if Immigration and Customs Enforcement (ICE) caught up with him, but that the defendant was 'better off fighting immigration on the outside than from jail.' If the defendant were tried and found guilty, he likely would go to jail and be an easy target for ICE. If the defendant were not in jail, he had a better chance of eluding ICE.
Likewise without merit is the defendant's bald assertion that his plea attorney's failure to negotiate an outcome free from immigration consequences amounts to ineffective assistance of counsel. Defense counsel negotiated a criminal disposition that was very favorable to the defendant, and the defendant advanced nothing to establish that more competent counsel could have extracted greater concessions and immigration-free consequences from the Commonwealth.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Grasso, Smith & Meade, JJ.),