Opinion
11-P-68
12-22-2011
COMMONWEALTH v. MANUEL SOTO.
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
The defendant appeals from the denial of his motion to withdraw his guilty plea. The defendant contends, in particular, that where he was not informed of adverse immigration consequences that may result from the plea, the judge erroneously denied his motion on the grounds that (1) the guilty plea was not voluntary and intelligent, (2) counsel's conduct constituted ineffective assistance of counsel, and (3) the standard set forth in Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), applies retroactively to the defendant's plea. In addition, the defendant complains that there was no factual basis for his plea. We affirm.
A postsentence motion to withdraw a guilty plea is treated as a motion for new trial. Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). The defendant does not claim that the plea colloquy conducted by the judge inadequately conveyed the immigration warnings required by statute nor his 'intra-trial rights.'
The defendant filed a timely notice of appeal on January 7, 2011, and submitted his brief on February 22, 2011. The Supreme Judicial Court decided Commonwealth v. Clarke, 460 Mass. 30 (2011), on June 17, 2011, which discusses the application of Padilla v. Kentucky, and holds it applies to all pleas taken after the effective date of the Illegal Immigration Reform and Immigrant Responsibilty Act (IIRIRA) (effective April 1, 1997). In light of this, we hold that Padilla does not apply retroactively to the plea tendered in the instant case.
Factual and legal background. On May 5, 1992, the defendant was indicted for trafficking in cocaine in an amount greater than fourteen grams, in violation of G. L. c. 94C, § 32E, and for conspiracy to violate the drug laws, in violation of G. L. c. 94C, § 40. Represented by counsel (plea counsel), the defendant subsequently pleaded guilty to the charge of conspiracy on February 23, 1996. The defendant was sentenced to three years probation, and subject to the conditions that he forfeit his firearm, ammunition, and $630 in cash, and not renew his FID card. The defendant served probation and was discharged on April 27, 1999.
On motion of the Commonwealth, the judge dismissed the trafficking charge during the plea hearing.
In 2010, the United States Supreme Court decided Padilla v. Kentucky, supra, holding that counsel must inform a client whether his plea carries a clear risk of deportation. The Supreme Court did not clarify whether it announced a new rule in Padilla or whether the decision merely reflected the current trend of criminal law. In Commonwealth v. Clarke, 460 Mass. 30 (2011), the Supreme Judicial Court considered whether the holding in Padilla applies retroactively to cases on collateral review. Clarke clarified that, in Massachusetts, Padilla was not a new rule but an application of Strickland v. Washington, 466 U.S. 668 (1984), governing claims of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. See Commonwealth v. Clarke, supra at 40. The defendant asserts his claims against the backdrop of these recent legal developments.
In Strickland, the United States Supreme Court articulated the steps through which a defendant must prove counsel was ineffective. First, the defendant must show that the counsel's performance was deficient, and second, that the deficient performance prejudiced the defense. See 466 U.S. at 687.
Commonwealth v. Clarke, supra, and Padilla v. Kentucky, supra, now make clear that, for cases in which they apply, deportation warnings given at a plea colloquy are 'not an adequate substitute for defense counsel's professional obligation to advise her client of the likelihood of specific and dire immigration consequences.' Commonwealth v. Clarke, supra at 48 n.20.
Discussion. 1. Plea was intelligent and voluntary. The defendant avers that because he was not aware of the adverse immigration consequences, he did not intelligently tender his guilty plea. Under Massachusetts law, the defendant bears the burden of demonstrating that his plea was not intelligent or voluntary. See Commonwealth v. Desrosier, 56 Mass. App. Ct. 348, 354 (2002). A plea is 'intelligent' where the defendant is made aware of the elements of the charged offense and has a basic understanding of the legal consequences and legal rights waived by pleading guilty. See Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 61-62 (2008). See also Commonwealth v. Russin, 420 Mass. 309, 317-318 (1995).
The defendant also contends that the motion judge erred in denying the defendant's motion for a new trial because the judge failed to address the defendant's claim, asserted below, that his plea was not intelligently made. In his denial of the motion, the judge articulated that he denied the motion 'for the reasons stated in the Commonwealth's opposition.' While the reasoning set forth by the Commonwealth in its opposition does not expressly address the issue, the Commonwealth does discuss the 'knowledge' held by the defendant at the time of the plea, arguing that the defendant was properly 'on notice' of the immigration consequences that may flow from the plea prior to tendering his plea. We therefore find this contention to be without merit.
It is well settled that immigration ramifications of a conviction are collateral and not direct. See Commonwealth v. Quispe, 433 Mass. 508, 513 (2001); Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989). A failure to make a defendant aware of collateral consequences at the time of plea does not render the plea involuntary. See Hason, supra; Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005). Despite the defendant's contention otherwise, Massachusetts has not yet held immigration consequences to be a direct consequence of a plea. Accordingly, that the defendant may not have been aware of the risk of deportation resulting from his guilty plea is immaterial to whether the plea was intelligently given.
Moreover, the defendant cannot rely on Padilla v. Kentucky, supra, to alter this analysis. Before considering the merits of Padilla, we take note of the Supreme Judicial Court's ruling in Commonwealth v. Clarke, that Padilla only applies retroactively to pleas tendered after the IIRIRA was enacted. 460 Mass. at 45. As such, the defendant cannot avail himself of Padilla, regardless of the effect Padilla may or may not have had on the 'intelligent' nature of guilty pleas that involved immigration consequences.
2. Ineffective assistance of counsel. The defendant also contends that plea counsel was ineffective because counsel failed adequately to warn the defendant of the immigration consequences of his plea. The defendant sets forth a claim under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), that counsel's advice fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that, but for such deficiency, the outcome of the case would be different. The crux of defendant's claim is that the advice given to the defendant by plea counsel, namely that defendant could be incarcerated if he violated the terms of his probation, was deficient.
Massachusetts has refused to render a counsel's performance ineffective where counsel provides inaccurate legal advice as to a collateral matter. See Commonwealth v. Fraire, 55 Mass. App. Ct. 916, 917-918 (2002); Commonwealth v. Shindell, 63 Mass. App. Ct. at 507-508. Padilla v. Kentucky, supra, does not apply to the defendant's plea and thus does not change our analysis of an ineffective assistance of counsel claim under these circumstances. As the law is in agreement that an ordinary, fallible attorney need not advise on collateral matters, plea counsel behaved effectively as required by law. See Commonwealth v. Saferian, supra. As the assistance rendered by plea counsel was not defective, we need not reach the claim of prejudice under Saferian.
3. Factual basis. The defendant further asserts that the plea judge lacked a sufficient factual basis upon which to accept the guilty plea, and as such, the defendant is entitled to a new trial. Based on the facts as they appear in the record, the Commonwealth presented sufficient facts that the defendant was guilty of all elements of conspiracy.
In Massachusetts, a conspiracy is '[a] combination of two or more persons who seek by some concerted action to accomplish a criminal act.' Commonwealth v. Cook, 10 Mass. App. Ct. 668, 670 (1980). A conspiracy is most often proved by '[t]he acts of different persons who are shown to have known each other, or to have been in communication with each other, directed towards the accomplishment of the same object,' and other circumstantial evidence. Commonwealth v. Nelson, 370 Mass. 192, 200-201 (1976), quoting from Commonwealth v. Smith, 163 Mass. 411, 417-418 (1895). At the colloquy, the Commonwealth presented evidence from an undercover drug sale, whereby the defendant was at the location that the attempted sale originated from and he picked up a call on a telephone line that purported to be directly connected with the sale of cocaine. Moreover, the plea judge properly relied on the defendant's statement that he had joined in the acts alleged by the Commonwealth and was admitting to the truth of the Commonwealth's statement of expected evidence, suggesting that he knew he could be convicted on the Commonwealth's evidence. See Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998)(collateral challenge to a guilty plea must be supported by 'credible and reliable evidence to rebut a presumption that the prior conviction was valid '). That the defendant did not expressly admit all the facts at the colloquy is not dispositive of the underlying factual basis for the charge.
The Commonwealth also opposed the defendant's motion on the ground that the favorable nature of the plea agreement should outweigh any claims asserted by the defendant in his self-serving affidavit. The Commonwealth contends that the outcome for the defendant, including the resulting dismissal of a charge that carried a minimum mandatory sentence and the option of pleading to a joint recommendation of probation, is controlled by the facts in Commonwealth v. Clarke, supra. In Clarke, the Supreme Judicial Court found that similar evidence outweighed the defendant's self-serving affidavit in which he posits that he would not have pleaded guilty had he been made aware of the impact on his immigration status. 460 Mass. at 49. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998)(judge can discredit an affidavit of the defendant as self-serving and conclusory); Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 581- 582 (2001)(facts do not justify withdrawal of plea where no evidence that defendant would otherwise fully benefit from trial).
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Order denying motion to withdraw guilty plea affirmed.
By the Court (Grainger, Fecteau & Agnes, JJ.),