Opinion
14-P-1103
06-15-2015
COMMONWEALTH v. RAUL RODRIGUEZ.
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
In March of 1999, the defendant pleaded guilty in District Court to two counts of possession of a class A substance. Over fourteen years later, he filed a motion for new trial alleging that he had received inadequate immigration warnings. See generally Padilla v. Kentucky, 559 U.S. 356 (2010). Following an evidentiary hearing, a judge (different from the plea judge) denied the motion. The motion judge concluded that although the defendant received inadequate immigration advice from his counsel, he failed to demonstrate prejudice. We affirm.
Even though the defendant was informed that his pleading guilty could result in deportation, the judge found he was not adequately advised as to the degree of likelihood of this. See Commonwealth v. DeJesus, 468 Mass. 174, 181-182 (2014). The Commonwealth accepts that ruling arguendo, as do we.
As the cases establish, to show prejudice from an inadequate immigration warning, a defendant -- carrying the burden of proof -- must show a "reasonable probability" that he would have insisted on going to trial had he received proper advice and that such a decision "would have been rational under the circumstances." Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) (quotations omitted). Although this can be shown in one of three ways, see Commonwealth v. Sylvain, 466 Mass. 422, 438 (2013), we focus on the first prong of whether the defendant "had an 'available substantial ground of defence.'" Ibid., quoting from Clarke, supra.
The defendant makes no argument as to the second prong (whether a different plea agreement could have been negotiated at the time). In addition, he is unable to make any significant showing as to the third prong (whether there were "special circumstances" that had a particular bearing on his remaining in the country). In this regard, we note that the defendant came to the United States from the Dominican Republic at age twenty-three, after which he retained extensive ties to the Dominican Republic (including two young children there). The plea bargain occurred less than one and one-half years later. His wife at the time of the plea bargain was a naturalized United States citizen, but she also was originally from the Dominican Republic and there is evidence in the record suggesting that she maintained ties to her home country (for example, her marriage to the defendant was celebrated in the Dominican Republic). The facts are thus very different from those in cases in which "special circumstances" have been found. See, e.g., Commonwealth v. Cano, 87 Mass. App. Ct. 238, 248 (2015) (denial of motion for new trial remanded for evidentiary hearing on "special circumstances" where defendant with significant mental deficiencies had presented uncontroverted showing regarding "extreme difficulties" he would face if deported).
The charges that the defendant originally faced were set forth in two criminal complaints. The parties stipulated (for purposes of the motion for new trial) that the charges were based on facts laid out in police reports regarding separate incidents that occurred on August 28, 1998, and September 23, 1998. In the first incident, Springfield police stopped a van that the defendant was driving based on information from a confidential informant that the defendant and another (a passenger in the van) were about to make a delivery of heroin. According to the police report, the officers at the scene of the stop observed the passenger drop ten bags of heroin, and they subsequently discovered additional heroin and various drug distribution paraphernalia in the passenger's apartment (which, according to the confidential informant, the passenger and the defendant had just left). The defendant was charged with possession of heroin with intent to distribute and a related school zone violation.
In the second incident, the police approached the defendant inside a restaurant after he left his car running in a parking lot. While questioning him, the police noticed what appeared to be a plastic bag inside his mouth. Following a struggle, the defendant spit out the bag, which contained ten individually wrapped bags of heroin. For this incident, the defendant was charged with possession of heroin with intent to distribute, a related school zone violation, and resisting arrest.
Had the defendant been convicted as charged, he would have faced mandatory minimum sentences of two years in the house of correction for each of the school zone violations, and maximum sentences of up to two and one-half years for each of the remaining three charges. By accepting the plea bargain offered by the Commonwealth, he pleaded guilty to two counts of simple possession and received sentences of one year in the house of correction, each suspended for one year, with special conditions. The school zone violations were nol prossed, and the resisting arrest charge was filed with consent.
On appeal, the defendant seeks to contest the strength of the Commonwealth's case in various respects. As to the first set of charges, the defendant argues that the heroin was found only in the passenger's possession. On this basis, he questions the sufficiency of the Commonwealth's proof that the defendant himself was guilty (as opposed to being a mere innocent bystander). We disagree with the defendant's characterization that this made the case against him "incredibly thin." Indeed, as the motion judge noted, the Commonwealth retained the option of having the confidential informant testify.
As to the second set of charges, as the motion judge observed, if the evidence of the ten bags of heroin found secreted in the defendant's mouth "had been admitted at trial, and if the testimony of the police officers had been believed, a conviction for at least possession of a class A substance appears to have been extremely likely, making the defendant's subsequent removal from the United States inevitable." The defendant contends that he would have succeeded in pursuing a motion to suppress the heroin on the ground that it was the product of an illegal search and seizure. It is somewhat difficult to evaluate the defendant's argument on the present record. As a threshold matter, we note that the motion to suppress filed by the defendant's trial counsel was not accompanied by a memorandum of law or affidavits describing the grounds on which it was based. In addition, the defendant did not develop a factual record regarding the two incidents beyond the police reports. As the limited record before us indicates, the police initially approached the defendant on September 23, 1998, because he had left his car running in a parking lot next to a restaurant. Although we disagree with the motion judge's conclusion that this provided police with reasonable suspicion that the defendant had violated G. L. c. 90, § 13, it certainly provided them a caretaking reason to approach the defendant inside the restaurant, and it was during this encounter that the police observed the bag inside the defendant's mouth. Even if we were to assume, favorably to the defendant, that the comment in the police report that an officer "blocked [the defendant's] exit route from the store" constituted a seizure, any complete evaluation of the validity of the police actions required a full factual presentation that the defendant did not provide. In any event, even if the motion to suppress had a significant chance of success, the defendant still would have faced the charges from the other incident, and the plea arrangement he accepted (even in the face of warnings that he could be deported) was extremely favorable. In these circumstances, we conclude that the defendant has not met his "substantial burden" of proving he was prejudiced by the immigration advice he was given. Clarke, 460 Mass. at 47.
For the defendant's actions to have constituted a violation of G. L. c. 90, § 13, as amended by St. 1978, c. 264, the parking lot here would have had to qualify as a "way." There is at least substantial doubt that the parking lot here so qualified. Compare Commonwealth v. Paccia, 338 Mass. 4, 6 (1958). See Commonwealth v. Callahan, 405 Mass. 200, 202-203 (1989) (discussing amendments made to G. L. c. 90, § 24, in response to Commonwealth v. Paccia).
Order denying motion for new trial affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 15, 2015.