Opinion
19-P-1457
03-30-2020
COMMONWEALTH v. Jean M. PROVIDENCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On November 24, 1998, the defendant pleaded guilty to the charges of uttering a false document, forgery of a document, and possession of a blank credit card. He completed eighteen months of probation on May 22, 2000. On March 2, 2018, the defendant filed a motion for new trial claiming ineffective assistance of counsel on the grounds that his plea counsel had failed to inform him of the immigration consequences of his guilty plea. That motion was denied. On appeal, the defendant claims that the motion judge erred in finding that the signed tender of plea form was sufficient. We vacate the denial of the motion for new trial, and remand for further findings.
On September 28, 2018, the defendant filed a motion to reconsider his motion for new trial. On February 6, 2019, the motion judge also denied the motion for reconsideration.
In his affidavit, the defendant claimed that had his plea attorney advised him of the specific immigration consequences, he would not have pleaded guilty. However, the motion judge in this case did not consider whether the defendant was credible in his assertion, nor did the judge clarify whether the defendant offered sufficient facts to establish special circumstances. As such, we review the denial of the defendant's motion for "a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
The Sixth Amendment to the United States Constitution requires a criminal defense attorney to provide accurate advice on the deportation consequences resulting from a guilty plea. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). In this case, the defendant and his plea counsel both submitted affidavits acknowledging that a tender of plea form "is not an adequate substitute for defense counsel's professional obligation to advise [her] client of the likelihood of specific and dire immigration consequences that might arise from such a plea" (quotation omitted). Commonwealth v. Sylvain, 466 Mass. 422, 425 n.2 (2013). Specifically, plea counsel indicated that in 1998, while representing the defendant, she would "not have told a client that deportation or removal from the United States was mandatory or a certainty," and that her advice would have merely been consistent with the language on the plea form. If the motion judge had credited this evidence, precedent would dictate that plea counsel failed to properly advise her client of the deportation consequences of his conviction, satisfying the first prong of the ineffective assistance analysis. See Commonwealth v. DeJesus, 468 Mass. 174, 181-182 (2014) ; Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Article 12 of the Massachusetts Declaration of Rights also requires defense counsel to accurately advise a noncitizen of the deportation consequences of a guilty plea. See Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013). On these grounds, a defendant can collaterally attack convictions that occurred after April 1, 1997. Id. at 429 n.8.
"In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ " Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018), quoting Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). In addition, "the defendant must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ " Lastowski, supra, quoting Clarke, supra.
Under the second prong, a finding of special circumstances requires only that the defendant "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (quotation omitted), at which point the motion judge must take into account the particular circumstances informing the defendant's desire to remain in the United States. Commonwealth v. Lys, 481 Mass. 1, 8 (2018). Here, the defendant claims that his status as a legal permanent resident, the fact that his entire family resided in the United States, and the fact that he had never returned to Haiti after arriving in the United States at age fourteen, qualified as special circumstances existing at the time he made his plea. Accordingly, he contends that had he been correctly advised, he would have placed particular emphasis on these circumstances in deciding whether to plead guilty. See Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011).
To satisfy the second prong of an ineffective assistance analysis, the defendant must show prejudice by establishing "(1) an available, substantial ground of defense that the defendant would have pursued if given proper advice about the plea's dire immigration consequences; (2) a reasonable probability that the defendant could have negotiated a plea bargain that did not include those dire immigration consequences; or (3) special circumstances supporting the conclusion that the defendant placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (quotation omitted). Commonwealth v. Lys, 481 Mass. 1, 7 (2018). Where the defendant establishes at least one of these factors, the judge must consider whether a reasonable person in the defendant's situation would have rejected a plea offer if correctly informed. Id. at 7-8.
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Because the motion judge did not consider whether the defendant was credible in his assertion of special circumstances, we do not know whether the judge discredited the defendant's assertions or whether he decided that the defendant did not aver any facts that, even if believed, would qualify as special circumstances. In these circumstances, we remand for additional findings. See Lys, 481 Mass. at 8.
The order denying the motion for new trial is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.