Opinion
11-P-2048
12-06-2012
COMMONWEALTH v. NELSON E. ROSARIO.
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
Upon review of the briefs, record appendix, and other filings in this matter, when viewed through the prism of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), as clarified by Commonwealth v. Clarke, 460 Mass. 30, 47-49 (2011), we think the motion judge erred. See and compare Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 596 (2012). Specifically, as to the claim of ineffective assistance, we think the first and second prongs of the Saferian standard have been satisfied.
See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
'To succeed on an ineffective assistance of counsel claim, the consequence of counsel's serious [constitutionally deficient advice] must be prejudicial.' Commonwealth v. Clarke, supra at 46-47. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012) ('[A] defendant must prove both deficient performance and prejudice'). We agree that counsel's performance was substandard here, meeting the first prong of Saferian, based substantially on the reasoning and authorities set out in the defendant's briefs. Turning now to the second prong, in order for a defendant to demonstrate that he was prejudiced by counsel's ineffective representation, the defendant would have to prove that it would have been a rational decision on his part to reject the government's plea bargain. See Commonwealth v. Clarke, supra at 47. The Supreme Judicial Court opined that prejudice in this context may be established in one of three ways. Id. at 47-48. We think the defendant has shown that it would have been rational not to plead guilty. See Padilla v. Kentucky, supra at 1485.
Here, the judge considered the first two methods of establishing prejudice, but did not appropriately consider the third method -- demonstrating the presence of ''special circumstances' that support the conclusion that [the defendant] placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.' Commonwealth v. Clarke, supra at 47-48, quoting from Hill v. Lockhart, 474 U.S. 52, 60 (1985). It is readily apparent from the record, and the Commonwealth does not dispute, that this defendant, indeed, had special circumstances, including but not limited to the following: he came to the United States when he was three years old; he was a legal resident; and he had significant and important relationships with his parents and siblings, especially due to his below average intelligence and need for special education. Such special circumstances would have caused the defendant to place particular emphasis on immigration consequences in making a determination whether to plead guilty. Preserving the possibility of discretionary relief from deportation has been recognized as a significant factor in making such a decision. Padilla v. Kentucky, 130 S. Ct. at 1483. It may fairly be concluded that in the circumstances presented here a decision to reject a guilty plea would have been rational. The United States Supreme Court has recognized that the possibility of discretionary relief may, in fact, be deemed more important than serving a potential jail sentence. Ibid.
The Commonwealth's argument that the defendant had no defense to the charges is not dispositive in this context. Nor is its complaint that application of the standards articulated in Clarke will result in a flood of litigation. Such a concern is not relevant to consideration of the merits of a particular case.
We recognize that 'the judge did not have the benefit of Clarke' when he rendered his decision. Commonwealth v. Martinez, supra. Nevertheless, the record clearly establishes the defendant's unchallenged special circumstances, and he is entitled to withdraw his guilty plea. Contrast Commonwealth v. Clarke, 460 Mass. at 49; Commonwealth v. Chleikh, 82 Mass. App. Ct. at 728- 729.
Deciding as we do, we thus have no occasion to discuss whether the evidence the defendant offered through his affidavits fairly suggests that 'there [was] a reasonable probability that a different plea bargain (absent [the dire immigration] consequences) could have been negotiated at the time.' Commonwealth v. Clarke, 460 Mass. at 47. See Commonwealth v. Martinez, 81 Mass. App. Ct. at 600.
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The order denying the motion to withdraw the guilty plea is reversed and a new order shall enter allowing the motion. Both judgments, and the orders placing the remaining counts on file or continuing them without findings, are vacated.
So ordered.
By the Court (Katzmann, Brown & Sullivan, JJ.),