Opinion
20-P-1187
12-22-2021
COMMONWEALTH v. Anthony RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals the denial of his motion for a new trial, in which he sought to withdraw his guilty plea. On appeal, he claims that the judge improperly denied the motion because: (1) the plea judge failed to provide the defendant with the required immigration warnings pursuant to G. L. c. 278, § 29D, (2) plea counsel provided ineffective assistance of counsel for failing to discuss with the defendant the possible negative immigration consequences of the guilty plea, and (3) the motion judge abused her discretion in failing to conduct an evidentiary hearing. We affirm.
The defendant pleaded guilty to two counts of violation of a G. L. c. 209A abuse prevention order. The remaining charges of witness intimidation and resisting arrest were continued generally for one year.
The motion judge was also the plea judge.
1. Statutory immigration warnings. "Postconviction motions to withdraw pleas are treated as motions for a new trial" (citations omitted). Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). A judge may grant a motion for a new trial any time "it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion" (citation and quotation omitted). Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357 (2019). However, as is the case here, we award "particular deference" to the rulings of a motion judge who also served as the plea judge in the case. See id.
In his affidavit for his motion for a new trial, the defendant alleges he "does not recall" the court providing him with the immigration warnings required by G. L. c. 278, § 29D. Further, the defendant claims that we should presume the defendant did not receive such warnings because the record is devoid of any proof that such warnings were actually provided. We disagree.
Prior to accepting a defendant's guilty plea, a judge must advise the defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." G. L. c. 278, § 29D. The Commonwealth bears the burden of providing an affirmative record that such warnings were given, regardless of how much time has passed since the defendant's guilty plea. See Commonwealth v. Marques, 84 Mass. App. Ct. 203, 204-205 (2013). Where there is no affirmative record to demonstrate that the defendant received such warnings, we ordinarily presume that the warnings were not given. See id. at 205.
A reconstructed record of the plea hearing, as provided here, may be used to satisfy the requirement of an affirmative record that the immigration warnings were actually provided. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347, 351 (2009).
Here, the judge was permitted to discredit the defendant's affidavit, where he claims the statutory immigration warnings, pursuant to G. L. c. 278, § 29D, were not provided. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016) (judge may discredit defendant's self-serving affidavit). Furthermore, the record contains the green sheets in which the judge certified that the defendant was advised of the statutory immigration warnings in accordance with the exact language found in G. L. c. 278, § 29D. Cf. Marques, 84 Mass. App. Ct. at 206 (green sheets did not exactly comport with amended statutory language of G. L. c. 278, § 29D ). Such green sheets demonstrate an affirmative record that the defendant did in fact receive the statutory immigration warnings at his guilty plea, and as such, the defendant is not entitled to the presumption. See Commonwealth v. Cortez, 86 Mass. App. Ct. 789, 790 n.6 (2014) (docket sheet and green sheets "amply demonstrate" immigration warnings were actually provided). Cf. Commonwealth v. Grannum, 457 Mass. 128, 134 (2010) (defendant entitled to presumption only where "nothing" in record, or reconstruction of such record, demonstrates that warnings were actually given). Therefore, in light of our particular deference to the judge, we discern neither an abuse of discretion, nor a significant error of law. See Lewis, 96 Mass. App. Ct. at 357.
In the green sheets, the judge certified the following: "I certify that I have advised the defendant as follows: ‘If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ "
The defendant also signed the green sheet, which affirmed the following: "I understand that if I am not a citizen of the United States, the acceptance by this court of my plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
The Commonwealth argues that even if such statutory warnings were not given, the defendant is not entitled to withdraw his guilty plea, as his plea will not result in one of the enumerated consequences, namely deportation, exclusion from admission to the United States, or denial of naturalization. See Grannum, 457 Mass. at 134. We disagree. In their supplemental appendix, the Commonwealth provides the notice to appear from the U.S. Department of Homeland Security, which demonstrated that the defendant's removal proceedings arose out of his conviction for distribution of a Class B substance, in violation of G. L. c. 94C, § 32A (a ). However, as properly noted by the defendant in his own supplemental appendix, the Department of Homeland Security withdrew those allegations, and substituted his violations of G. L. c. 209A as the trigger for his potential removal from the United States.
2. Ineffective assistance of counsel. The defendant also claims that plea counsel was ineffective in failing to discuss the immigration consequences that would result from his guilty plea. We disagree.
To prevail on his claim of ineffectiveness of counsel, the defendant must show: (1) that counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must prove both deficient performance and prejudice" (emphasis added). Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).
"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" (citation and quotations omitted). Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246-247 (2015). Moreover, the defendant must also demonstrate that the decision to insist on going to trial would have been rational by: (1) showing he had an available, substantial ground of defense, (2) there is a reasonable probability that a different plea bargain could have been negotiated at the time, or (3) there exist special circumstances to support the conclusion that the defendant placed, or would have placed, particular emphasis on immigration consequences when deciding to plead guilty. See id. at 247.
Here, contrary to the defendant's claim, plea counsel did in fact provide the defendant with adequate immigration warnings. In particular, the judge found that plea counsel's handwritten notes demonstrate that he "spoke with defendant on seven separate occasions regarding immigration issues and immigration consequences." During those occasions, plea counsel recommended that the defendant speak with an immigration attorney, and advised him that the plea could have negative immigration consequences, including deportation. The defendant, in his own affidavit accompanying his motion for a new trial, even admits such facts, as he states that he was informed by counsel that "as a consequence of the convictions of violating the restraining order that [he] may be deported."
Plea counsel declined to submit an affidavit concerning the defendant's claim. "[I]n ineffective assistance claims, the court is entitled to draw a negative inference from the defendant's failure to secure an affidavit from trial or plea counsel" (citations omitted). Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014). Such a negative inference is entirely permissible here, where the judge could reasonably infer that a truthful affidavit from plea counsel would not have assisted the defendant. See id. at 551.
At bottom, the burden is on the defendant to demonstrate that there existed "serious incompetency, inefficiency, or inattention" on the part of counsel. Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 396 (2012), quoting Saferian, 366 Mass. at 96. Here, where plea counsel did in fact advise the defendant of the potential immigration consequences that could result from his guilty plea, including the risk of deportation, the defendant has failed to meet his burden. See Commonwealth v. Lopez, 96 Mass. App. Ct. 34, 40 (2019). Therefore, where the defendant has failed to demonstrate that plea counsel's performance was deficient in any way, we discern no error in the denial of the motion.
Where the defendant has failed to demonstrate plea counsel's serious incompetency, inefficiency, or inattention, we need not address the issue of prejudice. See Chleikh, 82 Mass. App. Ct. at 722 (ineffective assistance of counsel claims require proof of both deficient performance and prejudice).
3. Evidentiary hearing. Finally, the defendant argues a remand is necessary where the judge erred in deciding the motion for a new trial without conducting an evidentiary hearing. We disagree.
"A judge may decide a motion for a new trial without holding an evidentiary hearing if ‘no substantial issue is raised by the motion or affidavits.’ " Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), citing Mass. R. Crim. P. 30 (c) (3). "On appeal, we review a decision not to hold such a hearing for an abuse of discretion" (citation omitted). Id. "To sustain an appellate claim that a judge committed an abuse of discretion, it must be demonstrated that ‘no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her]’ " (citation omitted). Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). Where the judge discredited the defendant's self-serving affidavit, the green sheets demonstrated that the defendant did actually receive the required statutory immigration warnings, and the defendant has shown no credible evidence that plea counsel failed to advise him of his guilty plea's immigration consequences, there was no abuse of discretion. Moreover, as the motion judge found, plea counsel's handwritten notes demonstrated that he spoke with the defendant on numerous occasions about his immigration consequences, recommended that he seek advice from an immigration attorney, and that he faced deportation. In light of this, we are satisfied that the defendant has failed to raise a substantial issue that would require the judge to conduct an evidentiary hearing. See Commonwealth v. Marrero, 459 Mass. 235, 240-241 (2011).
Order denying motion for new trial affirmed.