Opinion
14-P-1727
09-25-2015
COMMONWEALTH v. MANUEL SOTO.
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 for a new trial pursuant to Mass.R.Civ.P. 30(b), as appearing in 435 Mass. 1501 (2001), based on a claim of ineffective assistance for failure to advise him of the immigration consequences of an admission to sufficient facts to warrant a finding of guilty. Padilla v Kentucky, 559 U.S. 356 (2010). We affirm.
The charge to which the defendant admitted sufficient facts, possession of a class B substance with intent to distribute, was the product of a plea bargain that resulted in the dismissal of charges of school zone violation and possession of cocaine, and the filing of a civil motor vehicle infraction as responsible. In connection with the plea bargain the defendant waived a previously-filed motion to suppress evidence.
The recitation of facts surrounding the defendant's arrest proffered by the Commonwealth was as follows: As the arresting officer approached the defendant's vehicle, he saw the defendant handling a clear plastic sandwich bag. The defendant then waived his Miranda rights, admitted that three bags of cocaine were hidden in the vehicle, admitted that he had been selling drugs for the previous four-month period and admitted that he intended to sell the drugs in the vehicle to a friend. Thus, the record suggests that conviction was a likely outcome of trial and undermines the defendant's affidavit, at least insofar as he claims that he was optimistic he would be acquitted at trial.
In support of his motion, the defendant filed his own affidavit and one from successor counsel. The defendant's affidavit, in pertinent part, states that when he hired his own attorney to represent him in the underlying case, he informed his counsel that he was not a United States citizen, that he reminded counsel of that fact when the plea bargain was negotiated and specifically asked counsel whether the plea would cause a "problem with immigration." He avers that his attorney told him he would not suffer any immigration consequence because he would be on probation for less than a year. He further stated that, correctly advised, he would have insisted on a trial because the allowance of his motion to suppress evidence or, alternatively, his chances of acquittal were reasonably likely as the drugs in question were hidden in a vehicle that did not belong to him.
The vehicle was apparently registered to the defendant's father.
The affidavit of the defendant's successor counsel simply notes that a motion to suppress evidence was filed by the defendant before the plea deal was consummated and recites the details of the defendant's arrest set forth in the police incident report.
The record indicates that the judge administered the immigration warnings and that the defendant signed an acknowledgement that he had been advised by the judge of the immigration consequences. Plea counsel, from whom an affidavit is conspicuously absent without explanation, certified at the hearing that he had explained his "legal rights and consequences" to the defendant. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550-551 (2014).
During the plea hearing, the judge advised the defendant, "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your . . . admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization."
The judge was free to disbelieve the defendant's affidavit. See Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). And, with the single exception of the defendant's own affidavit, the record contains only the evidence that immigration warnings were administered at the plea hearing by the judge and that proper advice as to "legal rights and consequences" was provided to the defendant by his attorney. On this record we therefore conclude that denial of the defendant's motion on the papers alone was not an abuse of discretion. Ibid.
Order denying motion for new trial affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 25, 2015.