Opinion
20-P-1362
12-23-2021
COMMONWEALTH v. Angel SANCHEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Three years after his conviction by a jury of assault and battery on a family or household member, G. L. c. 265, § 13M, the defendant moved for a new trial, asserting that his trial lawyer was ineffective for not having advised him about some way to resolve the case without triggering the immigration consequences of a conviction of a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(1). The trial judge denied the motion. We affirm.
Background. At trial, the victim, who is the defendant's ex-wife, testified that on March 13, 2016, they had an argument. He punched her in the left eye, threw her cell phone against their bedroom wall, and then punched her in the right eye. When she tried to leave the bedroom, he grabbed her by the arm and threw her onto the bed, pushing her down and ordering her not to move as she kicked and struggled. After she got up from the bed, he said, "Now I'm going to hit you like a man," and punched her in the chin. She ran toward the door again, and he grabbed her from behind in a bear hug. She bit him, and he bit her shoulder. While they struggled on the floor, the defendant's cousin came into the room. The victim ran out of the room and called 911. Police and an ambulance responded, and she was taken to a hospital where her injuries were photographed.
The defendant testified that the victim attacked him first; he grabbed her wrists to calm her down, and she scratched, bit, and kicked him. He admitted that his hands came into contact with her eyes, but only because she bit him and he was trying to get away from her. On cross-examination, the prosecutor showed him photographs of the victim's injuries, and he admitted that in them she looked really hurt and that he had inflicted the injuries.
At sentencing, the prosecutor recommended eighteen months probation on the condition that the defendant complete a certified batterer's program. Defense counsel asked for "under one year of probation with the [b]atterer's [p]rogram for reasons which I cannot state in court." The judge noted that he was not considering "any immigration problems," which were a "[c]ollateral issue that I shouldn't consider, and I'm not consider[ing]." The judge then imposed eleven months’ probation, on the condition that the defendant complete the batterer's program.
In her impact statement, the victim told the judge that the prosecutor's recommendation was "fair," and that it was important to her that the defendant complete the batterer's program to "make sure that this doesn't happen to any other woman."
Immediately after trial, the defendant pleaded guilty to violation of a restraining order for sending a Facebook message to the victim on April 13, 2016. During the plea colloquy, the judge advised the defendant that it was "likely" that his plea may lead to immigration consequences including deportation. The judge imposed an agreed-upon recommendation of a six months’ continuance without a finding.
Discussion. We assess trial counsel's performance under the familiar Saferian standard: whether it "f[ell] measurably below that which might be expected from an ordinary fallible lawyer," and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the same judge who presided at trial also ruled on the motion for new trial, the defendant faces "a very uphill road" to establish that the judge abused his discretion in denying the motion. Commonwealth v. Hammond, 50 Mass. App. Ct. 171, 178 (2000). See also Commonwealth v. Lys, 481 Mass. 1, 4 (2018) (according "substantial deference" to plea judge, but ruling that judge should have recognized his discretion to credit or discredit defendant's affidavit stating that trial counsel gave him no advice about immigration consequences, where trial counsel submitted no affidavit).
The judge did not abuse his discretion in finding that trial counsel's performance did not fall below the standard of an ordinary, fallible lawyer. In denying the motion for new trial, the judge found that trial counsel had advised the defendant as to immigration consequences, and had made extensive attempts to resolve the case before trial by talking to the prosecutor and the judge. With that finding, the judge implicitly credited the portions of counsel's affidavit averring that before trial he knew that, if convicted of assault and battery on a household member, the defendant faced deportation, and that counsel sought guidance from the Committee for Public Counsel Services, which "confirm[ed]" his view. Counsel's affidavit averred that he discussed with the defendant "the immigration consequences of a conviction for a crime of domestic violence as well as a crime of violence," and the defendant's own affidavit averred that counsel told him "that if I was convicted of this offense and sentenced to jail I would be deported." See Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013) ("defense counsel [has] a duty to inform a noncitizen client that conviction, whether by plea or by trial, may carry adverse immigration consequences" [quotation and citation omitted]). Counsel tried to negotiate a disposition of the case entailing reduction of the charge to simple assault and battery, but the Commonwealth refused to reduce the charge because the victim wanted a conviction on the offense as charged.
At trial, defense counsel cross-examined the victim, insinuating that she attacked the defendant first and eliciting that she scratched, hit, and bit him. From the defendant's testimony, defense counsel then argued in closing that the injury to the victim's face was "an accident" that occurred when the defendant reacted in self-defense. Given the difficulties of the case, the judge had ample basis to rule that trial counsel's performance before and during trial met or exceeded the standard of an ordinary, fallible lawyer.
Nor did trial counsel's handling of immigration consequences deprive the defendant of an otherwise available, substantial ground of defense. Trial counsel's affidavit asserts that he should have proposed "a guilty-filed with no conditions." But that was not a viable option, because G. L. c. 265, § 13M (d ) required the judge to impose the condition of a certified batterer's program. Thus the defendant has not shown that, if his counsel had asked for that disposition, it would have afforded him "any real opportunity to avoid the immigration consequences of a conviction." Commonwealth v. Marinho, 464 Mass. 115, 130 (2013) (defendant convicted at trial of assault and battery causing serious bodily injury did not show that trial counsel was ineffective for not attempting to negotiate plea to simple assault).
Order denying motion for new trial affirmed.