Opinion
10-P-1329
12-12-2011
COMMONWEALTH v. PETERSON ROSADO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Before us are consolidated appeals from the denial of the defendant's third and fourth motions for a new trial. The motions sought to withdraw guilty pleas to drug trafficking and firearm charges on the grounds that the defendant's plea attorney rendered ineffective assistance of counsel by (1) failing to advise the defendant regarding his options as to a pending Franks hearing and (2) failing to advise him of the immigration consequences of his guilty pleas. We affirm.
The motions were dated November 16, 2009, and August 20, 2010, respectively.
See Franks v. Delaware, 438 U.S. 154 (1978).
1. The Franks question. We agree with the well-reasoned memorandum of the motion judge that there is no merit to the claim that defense counsel was ineffective in failing to advise the defendant of his options regarding a pending Franks motion. When the case was called for trial on March 4, 2008, the defendant faced separate indictments of trafficking heroin and trafficking cocaine in excess of two hundred grams. Each indictment carried a minimum mandatory sentence of not less than fifteen years and a maximum sentence of twenty years. Other indictments for firearm charges carried further terms of imprisonment. After the judge denied the defendant's motion to suppress the evidence seized pursuant to a search warrant, the only question remaining was whether the defendant's Franks motion, supported by the affidavit of Joline Rivera, provided the necessary 'substantial preliminary showing' to merit further inquiry.
Far from being manifestly unreasonable, defense counsel's decision to negotiate a very favorable plea deal to reduced charges rather than argue the Franks motion was an intelligent strategic choice given the posture of the case. See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 324 (2009) (omitting motion with minimal chance of success does not amount to ineffective assistance of counsel). The defendant had lost his motion to suppress the evidence, and the judge had reminded counsel that an evidentiary hearing on the Franks motion would only occur if 'the defendant in the first instance ma[de] a substantial preliminary showing' of falsity. The likelihood that the judge would conclude that the defendant had made the requisite showing was remote; the key defense witness on the Franks claim was not present; and the trial was unlikely to be continued. In the face of overwhelming evidence of the defendant's guilt and the realistic assessment that the Franks motion would not succeed, defense counsel's advice to the defendant to tender a plea on reduced charges was well within the range of competence expected from an attorney. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant initially pleaded guilty to reduced charges of trafficking more than 100 but less than 200 grams of heroin and cocaine. Prior to sentencing, his cooperation resulted in a new plea to further reduced charges of trafficking more than twenty-eight but less than 100 grams of heroin and cocaine. Ultimately, the defendant's pleas resulted in concurrent prison sentences of nine to eleven years on the drug offenses and lesser sentences on the firearm charges, all of which were concurrent with the drug sentences.
As the motion judge later determined, had the Franks motion been argued, he would not have concluded that Rivera's affidavit provided the necessary substantial preliminary showing that Officer Enfantis's affidavit was intentionally false to warrant an evidentiary hearing.
Our independent review of Rivera's affidavit supports this determination.
Were that not enough, the judge's factual findings establish that even had an evidentiary hearing occurred, he would have denied the Franks motion because he credited Officer Enfantis's testimony as to the contents of his affidavit. A more complete discussion between the defendant and defense counsel regarding the legal arcana of a Franks motion would have accomplished nothing material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
2. Failure to advise of immigration consequences. Relying on Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) (competent counsel must inform client whether his plea carries risk of deportation), the defendant contends that his plea attorney rendered ineffective assistance of counsel by failing to advise him of the immigration consequences of his guilty pleas, and that had he been advised of the prospects of deportation he would not have pleaded guilty. We agree that the rule of Padilla extends to the guilty pleas that the defendant offered in this case. See Commonwealth v. Clarke, 460 Mass. 30, 31 (2011) (Padilla applies retroactively to collateral challenge to guilty pleas obtained after April 1, 1997). Nevertheless, the applicability of Padilla does not avail the defendant.
The motion judge was not required to rely on the defendant's self-serving affidavit that his plea counsel did not advise him of the immigration consequences of his guilty pleas, and that had counsel done so the defendant 'never would have [pleaded] guilty and would have insisted on going to trial.' The defendant proffered no affidavit from his plea counsel that he failed to warn the defendant of the immigration consequences of his guilty pleas.
In a motion for reconsideration, the defendant offered an unsworn letter wherein defense counsel stated that he did, 'in fact advise [the defendant] as to the possibility of deportation' and that the judge did advise the defendant 'the same.'
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Even were we to assume that defense counsel failed to warn the defendant that his pleas carried a risk of deportation, the defendant has failed to satisfy his burden of demonstrating that 'had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different.' Commonwealth v. Clarke, supra at 31. The record and circumstances attendant to the defendant's guilty pleas suggest unmistakably that the driving factor in the guilty pleas was the extraordinary discounting of lengthy mandatory minimum prison sentences for much lesser ones. Having lost his motion to suppress, and with the evidence mounted against him, the defendant was left with 'little prospect of escaping those sentences, after which, of course, he would have faced the same deportation consequence that he faces now.' Id. at 48. In successive and separate guilty pleas, the judge provided the defendant the statutory immigration warnings set forth in G. L. c. 278, § 29D. See Commonwealth v. Clarke, supra at 48 n.20 (provision of warnings relevant to prejudice prong of Saferian). In view of all the circumstances, the defendant has failed to explain, let alone demonstrate, how it would have been rational to reject the plea deal offered and proceed to trial. See Padilla v. Kentucky, supra at 1485; Commonwealth v. Clarke, supra at 48-49.
Orders denying motions for new trial dated November 16, 2009, and August 20, 2010, affirmed.
By the Court (Grasso, Smith & Meade, JJ.),