Opinion
19-P-463
04-21-2020
COMMONWEALTH v. EUGENE SLAW.
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 moved to withdraw his plea of guilty based on ineffective assistance of counsel on the basis that trial counsel failed to advise him properly of the mandatory immigration consequences that would result from his plea. See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010); Commonwealth v. DeJesus, 468 Mass. 174, 179 (2014). The motion judge concluded that the defendant had met the first prong of the test for ineffective assistance of counsel under Saferian, a finding the Commonwealth does not contest. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (in addition to prejudice, defendant must show that "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer").
With respect to the second prong, prejudice, the judge concluded that "special circumstances" existed "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. Lavrinenko, 473 Mass. 42, 56 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). The circumstances identified by the defendant in his affidavit include that he entered the United States at the age of fourteen as a legal permanent resident, that his family lives in the United States, that he no longer has family in his country of origin, Ghana, that he attended school in the United States and has consistently worked in the United States since 2004, and that he is currently employed as a sound engineer and music producer here in the United States.
In a handwritten notation on the motion for new trial, which the judge entered in addition to a typed written order, the judge said, "I have taken into consideration the special factors . . . which I do find compelling but not enough that the defendant would not have plead guilty." The notation also concluded that the judge "does not find credible that the defendant would have chosen trial over plea." The judge further explained his credibility determination in the typed order: because the judge had not merely provided the immigration warning that the defendant "could and potentially would face deportation," because of his guilty plea, but had also asked the defendant at the time of the plea whether he understood, and he said yes, the defendant must therefore have weighed the risk of deportation against the strength of the Commonwealth's case and the risk that trial would result in a mandatory minimum sentence.
The judge ultimately concluded that the decision not to go to trial "was not an irrational decision" even based on the defendant's "'special circumstances' which I adopt as true." The judge did not credit the portion of the defendant's affidavit asserting that he would have gone to trial if given constitutionally effective advice.
The judge erred in taking this approach to prejudice. To begin with, the advice to which the defendant is entitled under Padilla and DeJesus is that the immigration consequences of his guilty plea are mandatory. Padilla, 559 U.S. at 368-369. DeJesus, 468 Mass. at 181. The advice that the guilty plea would result only in the possibility of deportation is erroneous and precisely what has been held constitutionally inadequate. DeJesus, 468 Mass. at 181 (defendant facing mandatory deportation is entitled to advice that "if Federal authorities apprehended the defendant, deportation would be practically inevitable"). Therefore, the fact that a judge has provided a defendant with that same inadequate advice, even if the judge asks the defendant specifically if he understands it, reveals nothing except what already is known: when misinformed about the mandatory nature of the immigration circumstances, the defendant chose to plead guilty. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551-552 (2014) (judicial warning of potential deportation consequences, even if painstaking, does not cure counsel's failure to provide constitutionally required advice).
More fundamentally, the Supreme Judicial Court has held specifically that the question before the judge is not whether the defendant is credible in his assertion, in response to an unanswerable question about a decision the defendant never made, that he would have pleaded guilty had he been given constitutionally adequate advice. Rather, "[t]he judge must determine, based on the credible facts, whether there is a reasonable probability that a reasonable person in the circumstances of the defendant would have chosen to go to trial had he or she received constitutionally effective advice from his or her criminal defense attorney regarding the immigration consequences of a guilty plea." Lavrinenko, 473 Mass. at 55. "In making this determination, a judge may evaluate the credibility of the defendant and other witnesses in determining the facts, but a judge does not evaluate the credibility of the defendant's assertion that he or she would have gone to trial had the defendant known then what the defendant knows now." Id. at 55 n.16.
Finally, the question is not whether it would have been rational to plead guilty if properly informed, but whether it would have been rational to reject the plea offer. DeJesus, 468 Mass. at 183. Again, the question is whether the defendant has demonstrated a reasonable probability that a reasonable person in the defendant's circumstances would have chosen to go to trial had he or she been given the proper advice. Lavrinenko, 473 Mass. at 55.
In this case, the judge has already made the factual findings necessary to answer that question. The judge's factual finding that the defendant received inadequate advice is adequately supported. His finding that the special circumstances identified by the defendant were not only present, but were "compelling" is as well. Finally, the defendant's "legal position" and "situation . . . compares . . . favorably" with that of the defendant in DeJesus. Martinez, 86 Mass. App. Ct. at 553. That defendant faced a trafficking charge with a five-year mandatory minimum sentence rather than a school zone charge with a two-year mandatory minimum sentence as the defendant did here. See DeJesus, 468 Mass. at 184 ("We reject the Commonwealth's argument . . . that the defendant was not prejudiced notwithstanding these circumstances because he 'got a very good deal': he received straight probation when he was facing a mandatory minimum sentence of five years of incarceration"). On all the facts and circumstances, the judge's findings suffice to demonstrate a reasonable probability that a reasonable person in the circumstances of the defendant would have chosen to go to trial if he or she knew the immigration consequences attendant upon a conviction. Martinez, 86 Mass. App. Ct. at 553. The order denying the defendant's motion for a new trial is therefore reversed; the judgment and the guilty plea are vacated, and the findings are set aside.
So ordered.
By the Court (Vuono, Rubin & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 21, 2020.