Opinion
No. 15–P–1359.
06-17-2016
COMMONWEALTH v. Jhoan RAMIREZ–MOSCAT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In July of 1999, the defendant, Jhoan Ramirez–Moscat, pleaded guilty to possession with intent to distribute a class B substance, and received a suspended sentence and probation. He now appeals from the denial of his second motion to withdraw the guilty plea and for a new trial, see Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), claiming that plea counsel was ineffective because counsel failed to adequately advise him of the immigration consequences of his plea. See Padilla v. Kentucky, 559 U.S. 356 (2010) ; Commonwealth v. Sylvain, 466 Mass. 422, 423–424 (2013) ; Commonwealth v. DeJesus, 468 Mass. 174, 178–182 (2014).
The defendant's first motion to withdraw the plea and for a new trial was denied because he mistakenly identified Attorney Champa (see infra ) as his plea counsel.
In support of his motion the defendant filed an affidavit representing the following. He has been a lawful permanent resident of the United States since 1992, and would not have pleaded guilty had he been made aware of the mandatory deportation consequences of his plea. At the time of the plea, his original defense counsel, Attorney Ralph Champa, was ill. Attorney Stephen Lagana filled in on the day of the plea; the defendant met him for the first time that day. The defendant first averred that Attorney Lagana “stood next to me while I plead[ed], but I don't remember receiving any advice from him.” The defendant next averred that “Attorney Lagana never explained to me that I would be deportable because I was taking this plea. Neither Attorney Champa nor Attorney Lagana ever explained the immigration consequences to me.” Plea counsel provided an affidavit in which he stated that he no longer possessed the case file in accordance with his retention policy, and that he had no memory of the case, but that it would have been his practice to read the plea sheet word for word and to explain the rights the defendant waived by pleading guilty.
This attorney's surname is also spelled in the record as “Ciampa.”
A judge of the Boston Municipal Court denied the motion on the ground that the affidavit filed with the motion was not signed by the defendant. The judge also found, in the alternative, that the defendant's affidavit was not credible because the defendant stated in one paragraph that he did not remember that Attorney Lagana had advised him, and in another paragraph that Attorney Lagana had not advised him of the immigration consequences of his plea. The judge also did not credit the assertion that Attorney Lagana had failed to fully advise him of the deportation consequences of the plea, based on counsel's representation in his affidavit that he practiced both criminal and immigration law.
The defendant filed a motion for reconsideration, together with an affidavit signed by the defendant, and a copy of an order of the Board of Bar Overseers imposing a suspension of three months (stayed for one year) for Attorney Lagana's mishandling of immigration matters, aggravated by his previous disciplinary history and “lack of candor.” The motion for reconsideration was denied.
We review the judge's decision for significant error of law or other abuse of discretion. Commonwealth v. Martinez, 81 Mass.App.Ct. 595, 598–599 (2012). A motion judge is not obligated to credit the allegations of the defendant's affidavit, even if they are undisputed. See Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 551 (2002). Where a substantial issue is raised by the motion, “an evidentiary hearing is required to address ambiguities and gaps in the affidavits.” Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 401 (2012). This is equally true in the context of challenges involving the mandatory immigration consequences of a plea. See ibid.; Commonwealth v. Almonte, 84 Mass.App.Ct. 735, 739 n. 2 (2014).
Because the judge considered the arguments on their merits, and because a signed affidavit was filed, we consider the matter on the merits as well.
Arguably, the defendant's affidavit posed an ambiguity, rather than a conflict; it could be as easily read to say that the defendant did not recall receiving general legal advice regarding the plea from Attorney Lagana, whom he met on the day of the plea, but that neither attorney told him that a consequence of the plea was mandatory deportation. When faced with such questions, the “ ‘better practice’ has been to conduct an evidentiary hearing.” Id. at 738 (emphasis omitted). See Gordon, supra. However, even if we were to accept the judge's conclusion that the defendant's affidavit was merely self-serving, the affidavit of plea counsel raises a substantial question warranting an evidentiary hearing.
The judge's decision hinges on his conclusion that Attorney Lagana gave constitutionally competent advice to the defendant regarding the deportation consequences of his plea. However, Attorney Lagana's affidavit itself raises significant questions as to the adequacy of the immigration advice he customarily gave defendants.
The judge made his initial findings regarding Attorney Lagana's immigration expertise before the judge was informed of the stayed suspension of Lagana's license for providing inadequate immigration counsel. There is no affidavit of Attorney Champa, who had passed away by the time the motion was filed.
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Nowhere in plea counsel's affidavit does counsel state that it was his practice to tell defendants subject to mandatory deportation that “presumptively mandatory deportation would have been the legal consequence of pleading guilty,” or that “if Federal authorities apprehended the defendant, deportation would be practically inevitable.” DeJesus, 468 Mass. at 181. Rather, the affidavit states that it was his practice to read and discuss the warning contained in the “green sheet,” which states only that the defendant “may” be deported, excluded from reentry, or denied naturalization. Reading the immigration warning from the green sheet, without more, does not satisfy the constitutional requirement that the defendant be adequately advised of the mandatory deportation consequences of his plea. See ibid. A failure to so advise the defendant would satisfy the substandard performance prong of the ineffective assistance of counsel standard. Id. at 182. Accordingly, we conclude that “a substantial issue necessitating a hearing” concerning the ineffectiveness of counsel has arisen. Almonte, 84 Mass.App.Ct. at 738, quoting from Commonwealth v. Shuman, 445 Mass. 268, 278 (2005).
The Commonwealth contends that the motion should be denied regardless because the defendant has made an inadequate showing of prejudice to warrant an evidentiary hearing. See Commonwealth v. Clarke, 460 Mass. 30, 46–47 (2011). In Clarke, the Supreme Judicial Court noted that long-term legal residency may be a significant consideration to be weighed in connection with all of the factors in a given case. Id. at 47–48 & n. 19. “For a noncitizen defendant, preserving his ‘right to remain in the United States' “ may be of utmost importance. DeJesus, supra at 184, quoting from Padilla, 559 U.S. at 368. At the time of the plea the defendant had been in the country for seven years, arriving at the age of fourteen. The strength of his commitment or desire to remain in the United States at the time of the plea presents a factual question, which is ultimately for the motion judge on remand, if the issue of prejudice is reached.
The order denying the second motion to withdraw the guilty plea and for a new trial is vacated, and the matter is remanded for an evidentiary hearing on the motion.
So ordered.