Opinion
14-P-1623
10-19-2015
COMMONWEALTH v. EDWIN RUA.
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
The defendant appeals from the denial of his motion to withdraw his guilty plea to one count of larceny from a person. The guilty plea entered on November 27, 2000. Some eleven years later in 2011, the defendant filed this motion to withdraw the plea. During the intervening eleven years, the defendant amassed a substantial criminal history. In 2012, a deportation order was affirmed by the United States Court of Appeals for the First Circuit, which cited "multiple grounds," including the instant larceny conviction. See Rua v. Holder, No. 11-2278 (1st Cir. Nov. 8, 2012), cert. denied, 134 S. Ct. 1768 (2014).
These convictions include (1) February 14, 2001, No. 0018CR7915, carrying a dangerous weapon (a knife) and assault and battery on a police officer, sentenced to six months committed in a house of correction; (2) June 5, 2008, No. 0518CR996, operating a motor vehicle under the influence of intoxicating liquor, continuance without a finding revoked after probation violation, sentenced to ninety days committed in a house of correction; (3) June 10, 2008, No. 0462CR2335, resisting arrest and disorderly conduct, sentenced to four months committed in a house of correction; (4) July 8, 2009, No. ESCR2008-00302, assault by means of a dangerous weapon, sentenced to one year to one year and one day committed; and (5) January 13, 2011, No. WOCR2008-08374, possession of a firearm, sentenced to two years in a house of correction.
In this appeal, the defendant contends that plea counsel provided constitutionally ineffective assistance by advising him that a guilty plea and the attendant eleven-month sentence would not render him eligible for deportation. The motion judge, who was not the plea judge, denied the plea withdrawal. We affirm.
By way of further procedural background, a motion to revise and revoke the sentence was filed one day after the plea, that is, on November 28, 2000. This revise and revoke motion was accompanied by an affidavit of plea counsel concerning erroneous advice to the defendant "that he would not be eligible for deportation if he accepted the recommended plea bargain." The revise and revoke motion specifically requested that the motion not be acted upon, but rather "be kept on file until the [d]efendant moves for a hearing on this issue."
No hearing was ever requested, and, according to the docket, no action was ever taken on the revise and revoke motion. Notwithstanding dormancy of that November 28, 2000, motion, in ruling on the 2011 plea withdrawal motion, the judge considered counsel's affidavit, and based thereon, the judge was persuaded that the legal advice given the defendant about no deportation risk flowing from the larceny plea was in error. However, the motion judge found that the error was not prejudicial, that is, was not outcome determinative because the defendant would have been determined subject to deportation not just for the larceny conviction, but also on the independent basis that the defendant was not documented as lawfully in the United States. See Commonwealth v. Marinho, 464 Mass. 115, 130 (2013) ("The reality of the defendant's status as an undocumented person living in the United States was that he was deportable per se on account of his unlawful status").
Specifically, on June 6, 2008, the United States Department of Homeland Security had initiated removal proceedings under section 240 of the Immigration and Naturalization Act. The removal notice stated that the defendant was not a citizen or national of the United States, that he was not admitted or paroled after inspection by an immigration officer, and, further, that he had been convicted of larceny in 2000. As stated above, the United States Court of Appeals for the First Circuit affirmed a deportation order for removal, stating that the defendant "is both removable and ineligible for relief from removal on multiple grounds, including particularly his conviction and sentence for larceny" (emphasis supplied). Rua v. Holder, supra.
Mitigating against withdrawal, and reflecting the rationality of the defendant's acceptance of the plea, is that the deal negotiated by plea counsel was quite favorable to the defendant in terms of a lenient sentence. The defendant's original indictment included charges of (1) assault and battery and (2) unarmed robbery. As part of the plea agreement, the assault and battery charge was dropped, and the more serious unarmed robbery offense (which at the extreme includes a potential life sentence) was reduced to larceny from a person with an eleven-month sentence in a house of correction. On this more lenient disposition, plea counsel's affidavit, indeed, acknowledges advice to the defendant that, were the defendant to have stood trial and "were he convicted after trial of the original charges he would be deported." Consistent with this strategic advice, this 2000 plea did, in fact, not lead to any deportation action until almost eight years later, within which, as noted, there was an intervening criminal history of offenses by the defendant.
In order to prevail on a motion to withdraw a plea based on error in plea counsel's advice concerning immigration consequences, the defendant must demonstrate (1) that counsel provided "constitutionally ineffective assistance"; and (2) "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014) (DeJesus), quoting from Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) (Clarke). The defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." DeJesus, supra at 183, quoting from Clarke, supra.
The Supreme Judicial Court has referred to three factors bearing on whether a defendant can show that rejecting a plea deal would have been rational:
"that (1) he had an 'available, substantial ground of defence,' Commonwealth v. Saferian, [366 Mass. 89,] 96 [(1974)], that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty. Hill [v. Lockhart, 474 U.S. 52, 60 (1985)]."DeJesus, 468 Mass. at 183, quoting from Clarke, 460 Mass. at 46-47.
None of these three DeJesus factors are met on this record. To start, the record is devoid of any apparent substantial defense that was available to the defendant. The identity of the suspect -- the defendant -- was not in question. The victim reported the crime shortly after it happened and arrived at the police station with visible injuries that corroborated his allegations of battery. The property which the defendant was charged with stealing in the unarmed robbery was recovered, corroborating the theft. There is nothing in the record to suggest that the defendant waived any other viable defense.
As to the second factor referred to in DeJesus, the defendant has not advanced reasons which contradict the motion judge's determination that a different -- perhaps more favorable -- deal was not likely to have been struck. In exchange for his guilty plea to the lesser larceny offense, the defendant received a substantially lesser sentence of eleven months in a house of correction than would have been imposed if the defendant had been convicted of the original charges of unarmed robbery and assault and battery. The affidavit of plea counsel referred to above so acknowledges.
As to the third factor referred to in DeJesus, there is little to support that the defendant's circumstances were so special that withdrawal of the plea would be justified. The "multiple grounds" underlying the deportation order (not just the larceny conviction) cited by the First Circuit do not bespeak special circumstances. See Rua v. Holder, supra. Further, the lack of special circumstances here is a contrast between this defendant and the defendant in DeJesus. The defendant in DeJesus maintained steady employment in the Boston area and had a minimal history of criminal offenses outside of his subject offense, and in his case conviction after trial was not a "near certainty," see DeJesus, 468 Mass. at 176-177, 183- 184. In marked contrast stands this defendant's continuing criminal history record in the years following the subject plea to larceny. See note 1, supra, for the criminal history which occurred after this plea. On this point, the defendant's plea counsel also acknowledged in his affidavit that, "I also told Mr. Rua that I could not advise him what effect any future charged criminal conduct could have on his immigration status."
Order denying motion for new trial affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 19, 2015.