Opinion
15-P-266
03-30-2016
COMMONWEALTH v. MARIA A. QUITERO.
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
The defendant appeals from the denial of her motion for a new trial, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), in which she sought to withdraw her guilty plea to a charge of shoplifting, based on a claim of ineffective assistance of plea counsel. We agree with the conclusion of the motion judge that the defendant satisfied neither prong of the showing required under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and affirm the order denying her motion.
To be more precise, the plea tendered by the defendant admitted to sufficient facts on the charge, and the case was continued without a finding for a six-month probationary period during which the defendant performed twenty hours of community service. For immigration purposes, an admission to sufficient facts is equivalent to a conviction. See 8 U.S.C. § 101(a)(48)(A) (2012).
As a threshold matter, we discern no abuse of discretion in the refusal by the motion judge (who was also the plea judge) to credit the defendant's uncorroborated self-serving assertion that her plea counsel did not advise her of potential immigration consequences of her guilty plea. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). In particular, the motion judge was entitled to draw an adverse inference from the defendant's failure to supply an affidavit of plea counsel corroborating her assertion. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
In any event, we discern no error of law or abuse of discretion in the motion judge's rejection of the defendant's assertion that, but for counsel's alleged ineffectiveness, she would have rejected the plea and insisted on going to trial. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012). Contrary to the defendant's claims on appeal, the Commonwealth's case against her was quite strong, including surveillance video showing the defendant and her companion removing merchandise from its packaging and concealing it in their coat pockets, then leaving the store without making any attempt to pay for it. The defendant's affidavit submitted in support of her new trial motion contains only vague and uncorroborated allusions to unspecified "evidence that would have come out at trial [that] might have exonerated" the defendant. There is nothing in the record to substantiate the defendant's speculation that her plea counsel might have been able to negotiate a more favorable disposition, specifically one that would have avoided immigration consequences, and the experienced motion judge specifically rejected the possibility. Finally, we discern no abuse of discretion in the conclusion by the motion judge that the defendant had failed to demonstrate the presence of "special circumstances" supporting a conclusion that she would have placed particular emphasis on immigration consequences in deciding whether to plead guilty. Commonwealth v. Clarke, 460 Mass. 30, 47-49 (2011). Compare, e.g., Commonwealth v. Cano, 87 Mass. App. Ct. 238, 247-248 (2015).
Indeed, the defendant obtained a quite lenient disposition. See note 1, supra.
Order denying motion for new trial affirmed.
By the Court (Green, Vuono & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.