Opinion
21-P-526
08-10-2022
COMMONWEALTH v. JOKO THOMAS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After pleading guilty to two complaints for violation of an abuse prevention order, G. L. c. 209A, § 7 (209A order), the defendant moved to vacate his convictions, asserting that his plea counsel was ineffective for not having adequately advised him about the possible immigration consequences of his pleas, and his pleas were not knowing and voluntary because the plea judge did not provide him immigration warnings as required by G. L. c. 278, § 29D. He now appeals from the denial of that motion. Because the defendant's motion raised a sufficient basis for an evidentiary hearing, we vacate the order denying the defendant's motion and remand the case for further factual findings.
Background.
On August 6, 2009, the defendant pleaded guilty to the two complaints at issue here, one with a docket number ending in 1455, and the other ending in 4640. Each of those complaints charged the defendant with a single count of violation of a 209A order. The defendant, his counsel, the prosecutor, and the judge all signed a tender of plea and waiver of rights form, colloquially referred to as a "green sheet," which bore the 1455 docket number but listed two counts. Just above the defendant's signature on that green sheet was a warning including that the court's acceptance of the plea "may have consequences of deportation." A second green sheet bearing the 4640 docket number was not signed by the plea judge, though it was signed by the defendant, his counsel, and the prosecutor. Each of the two dockets had a box checked stating, "Guilty Plea . . . accepted after colloquy and [G. L. c.] 278[,] § 29D warning," and each was stamped "ALIEN WARNING GIVEN." Consistent with the parties' agreed upon recommendation, the plea judge sentenced the defendant to concurrent two-year terms in the house of correction, suspended for two years.
In April 2021, the defendant moved to vacate his convictions, supported by an affidavit of plea counsel averring that although he did not specifically remember having done so in this case, "it was my usual practice to warn my clients [if] there was a possibility of deportation or immigration consequences. I would provide general warnings that a conviction 'may' have immigration consequences." Plea counsel's affidavit also averred that he did not remember the plea judge delivering the § 29D warnings, and that it was the plea judge's "usual practice" not to do so. The plea judge had retired, and the audio recordings of the pleas were no longer available, and so the motion judge considered the motion on the documentary evidence.
The motion judge denied the motion, concluding that, even assuming that plea counsel had not informed the defendant of the immigration consequences of his pleas, the defendant had not met his burden to show that he would not have pleaded guilty and instead would have gone to trial. The motion judge further concluded that, although the plea judge signed the green sheet pertaining to only one of the two pleas, the defendant received the required warnings under G. L. c. 278, § 29D, because the pleas were entered at the same time and the sentences were concurrent.
Discussion.
1. Ineffective assistance of counsel as to immigration consequences of plea.
The defendant's motion to vacate his convictions is the equivalent of a motion for new trial, Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and we review the denial of such a motion for a significant error of law or other abuse of discretion. See Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016); Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 393-394 (2012). To establish that he was entitled to a new trial, the defendant was required to show that, by not advising him of the immigration consequences he would face if convicted of two violations of a restraining order, his plea counsel's conduct fell below the standard of an ordinary, fallible lawyer, and that shortcoming deprived him of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also Commonwealth v. Lavrinenko, 473 Mass. 42, 51-52 (2015) (ineffective assistance of counsel on immigration consequences of plea). Because the motion judge was not the plea judge and ruled on the motion without an evidentiary hearing, the record before us does not contain factual findings entitled to deference. See Commonwealth v. Perkins, 450 Mass. 834, 845 (2008). Contrast Lavrinenko, supra at 47 (plea judge who held evidentiary hearing on motion for new trial was "final arbiter" on witnesses' credibility).
a. Performance.
"In determining whether the defendant met his burden under the performance prong of the Saferian standard, we must first address what level of advice plea counsel w[as] constitutionally required to provide the defendant given the charges against him." Commonwealth v. Henry, 88 Mass.App.Ct. 446, 452 (2015). When the immigration consequences of a plea are "truly clear," then "the duty to give correct advice is equally clear." Commonwealth v. Chleikh, 82 Mass.App.Ct. 718, 723 (2012), quoting Padilla v. Kentucky, 559 U.S. 356, 369 (2010). See Sylvain, 466 Mass. at 436 ("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]). However, "when the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Chleikh, supra, quoting Padilla, supra.
The motion judge "[a]ssum[ed], without deciding," that plea counsel's advice was "inadequate," and noted that plea counsel "submitted an affidavit stating that he had no personal recollection of these cases but his usual practice was to warn his clients of the possibility of immigration consequences." The judge never stated whether he credited that affidavit, nor did he make any findings of fact as to what advice plea counsel gave to the defendant about the immigration consequences of his pleas.
The Commonwealth contests the motion judge's assumption that plea counsel's advice was inadequate, arguing that the advice was in fact accurate because, as a lawful permanent resident, the defendant was entitled to petition the Attorney General pursuant to 8 U.S.C. § 1229b(a), for cancellation of removal despite these convictions. "[T]he opportunity to petition for cancellation of removal is a 'serious benefit.'" Gordon, 82 Mass.App.Ct. at 398, quoting Commonwealth v. Martinez, 81 Mass.App.Ct. 595, 596 n.2 (2012).
This court has held that a conviction for violation of a 209A order "makes the chance of deportation almost certain," noting that 8 U.S.C. § 1227(a)(2)(E)(ii) "'specifically commands removal' for . . . violations of . . . protection orders." Henry, 88 Mass.App.Ct. at 453, quoting Padilla, 559 U.S. at 368. In Henry, we held that plea counsel's advice that his "standard practice was to advise clients that pleas may have immigration consequences and that they should consult an immigration attorney" was "insufficient," because that defendant's pleas to two 209A offenses made his deportation "presumptively mandatory." Id. at 454.
The question then becomes whether, as the Commonwealth argues, the defendant's opportunity to petition for cancellation of removal reduces his likelihood of deportation to a level less than "almost certain," and thus renders adequate plea counsel's standard advice that the pleas "may" have immigration consequences. The Commonwealth cites to no case holding that the mere opportunity to apply for cancellation of removal reduces a defendant's likelihood of deportation to something less than "almost certain." The record before us contains no findings of fact as to the likelihood of success of the defendant's application for cancellation of removal, which under 8 U.S.C. § 1229b(a) is at the discretion of the Attorney General, or any advice plea counsel gave on that subject. Contrast Commonwealth v. Lopez, 96 Mass.App.Ct. 34, 37 (2019) (after evidentiary hearing, judge found that plea counsel advised defendant that plea would result in denial of petition for cancellation of removal). Nor does the record contain any findings of fact as to whether the defendant's criminal record as of the time of these pleas would have impacted his likelihood of success in applying for cancellation of removal. See Commonwealth v. Diaz, 75 Mass.App.Ct. 347, 353 n.11 (2009) (declining to reach Commonwealth's argument that other criminal convictions would have made defendant deportable, where that information was not in appellate record).
The defendant's motion and supporting affidavits demonstrated that he is entitled to an evidentiary hearing on whether plea counsel's advice on the immigration consequences of his pleas fell below the standard of an ordinary, fallible lawyer. See Henry, 88 Mass.App.Ct. at 454-455 (judge should not have "bypassed" performance prong, but rather should have made express findings as to whether plea counsel informed defendant that 209A offense was deportable).
b. Prejudice.
The defendant's motion and supporting affidavits also demonstrated a sufficient showing of prejudice to warrant an evidentiary hearing. His affidavit averred that had he been properly advised by plea counsel of the immigration consequences of his pleas, he would not have entered them and instead would have gone to trial. That satisfied the "baseline" requirement for raising an issue of prejudice. Commonwealth v. Lys, 481 Mass. 1, 7 (2018).
Once the defendant has satisfied that baseline requirement, a judge should proceed in two steps. First, the judge should determine whether the defendant has shown that rejecting the plea bargain would have been "rational under the circumstances." Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Padilla, 559 U.S. at 372. See also Commonwealth v. Rodriguez, 101 Mass.App.Ct. 54, 58 (2022). To prove that rejecting the plea deal would have been rational, the defendant bore the "substantial burden" of showing that "(1) he had an available, substantial ground of defen[s]e 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" (quotations and citations omitted). Clarke, 460 Mass. at 47-48. If the defendant establishes at least one of those Clarke factors, then the judge must move to the second step and determine "whether, under the totality of the circumstances, there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice." Lys, 481 Mass. at 7-8.
Here, the motion judge concluded that the defendant had not met the substantial burden as to any of the Clarke factors, stating that he "reviewed the defendant's submissions on these three factors and does not credit any of them." The defendant argues that the motion judge was required to make more detailed factual findings, and in particular, that the judge "bypassed consideration" of the special circumstances raised in the defendant's affidavit. As to the third Clarke factor, we agree. See Henry, 88 Mass.App.Ct. at 455-456 (remanding for factual findings on special circumstances).
As to the first Clarke factor, in his motion and on appeal, the defendant summarily asserted that he had "an available, substantial ground of defense" that he would have raised had he gone to trial, but never explained what that defense would have been. Similarly, as to the second Clarke factor, the defendant asserted that he "would have tried to negotiate a different plea bargain" had he known about the likely immigration consequences of his pleas but did not point to any weaknesses in the Commonwealth's case, such as any hesitancy of the victim to testify, that might have made a more favorable plea feasible. Contrast Henry, 88 Mass.App.Ct. at 449 (motion to withdraw plea supported by affidavit of 209A victim recanting accusations).
However, the defendant's showing as to the third Clarke factor was more substantial and warranted an evidentiary hearing. The defendant averred that he was born in Sierra Leone, has not returned there since 1996, has no family there, and has medical issues for which he would likely not be able to obtain proper treatment there. He has lived in the United States for twenty-five years and has a five year old son who lives here, as do the defendant's brothers and their families. However, from the defendant's affidavit alone, we cannot discern the degree to which any such special circumstances, including medical issues and family ties, existed in 2009, at the time of these pleas. See Henry, 88 Mass.App.Ct. at 449, 456 (remanding for further findings, where special circumstances included presence of defendant's children in United States, at least two of whom were already born by time of plea). Cf. Commonwealth v. DeJesus, 468 Mass. 174, 176, 183-184 (2014) (presence of special circumstances, including that defendant's child and pregnant wife lived in the United States at the time of the motion hearing, sufficient to establish prejudice).
Absent further factual development, we cannot determine whether those special circumstances would have impacted the defendant's decision to plead guilty to these 209A offenses had he been properly counseled as to the immigration consequences at the time of the pleas in 2009. Because of the lack of factual findings, we cannot discern whether the motion judge disbelieved the defendant's affidavits as to his special circumstances -even though the facts in them were uncontroverted -- or whether he decided that, even if believed, those facts did not amount to special circumstances. See Lys, 481 Mass. at 8. "[W]ithout findings of fact that address the defendant's specific contentions . . . 'it is not possible for us to say with any certainty whether the defendant's affidavit is merely selfserving or whether he was sufficiently prejudiced to justify vacating his guilty plea and ordering a new trial.'" Henry, 88 Mass.App.Ct. at 457, quoting Sylvain, 466 Mass. at 439.
2. Immigration warnings.
The defendant also argues that his pleas were not knowing, voluntary, and intelligent because the plea judge did not inform him of the immigration warnings required by G. L. c. 278, § 29D. That statute requires that, before accepting a plea, the judge must orally inform the defendant as follows:
The defendant does not argue that the judge omitted the immigration warning required at the time of these pleas pursuant to Mass. R. Crim. P. 12 (c) (3) (C), as appearing in 442 Mass. 1514 (2004), and so we do not reach that issue. See Commonwealth v. Petit-Homme, 482 Mass. 775, 779-783 (2019) (discussing differences between warnings required by § 29D and Rule 12, as later amended).
"If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."G. L. c. 278, § 29D. Where the judge's oral warnings do not meet the requirements of § 29D, the defendant's signature on the green sheet does not suffice to cure the infirmity. See Commonwealth v. Petit-Homme, 482 Mass. 775, 783 (2019) . See also Commonwealth v. Hilaire, 437 Mass. 809, 810 (2002).
The motion judge found that "the [p]lea [j]udge did give the required warnings under G. L. c. 278, [§] 29D for those two complaints." Because a recording of the 2009 plea hearing is no longer available, the motion judge based that finding on the notations on both dockets signifying that each plea was "accepted after colloquy and [G. L. c.] 278[,] § 29D warning," and the presence of "ALIEN WARNING GIVEN" stamps on both dockets. A docket notation may suffice to evidence that the § 29D warning was given. See Commonwealth v. Podoprigora, 46 Mass.App.Ct. 928, 929-930 (1999) (docket notation sufficed). In addition to the docket notations, the motion judge also considered that the plea judge certified on the green sheet for docket 1455 that he had given the § 29D warning. See Hilaire, 437 Mass. at 818 n.5 (judge's signature on green sheet certifies that oral § 29D warning was given). Because the defendant tendered the pleas in the two cases simultaneously, and the plea judge imposed concurrent sentences, the motion judge had ample basis to conclude that the § 29D warning pertained to both dockets. See Commonwealth v. Ciampa, 51 Mass.App.Ct. 459, 464 (2001) (finding that § 29D warnings were given may be based on "an essentially contemporaneous writing created by a manifestly percipient witness to the colloquy"). We also think it is significant that the green sheet for docket 1455 listed two counts, although that complaint contained only one, and so it appears that the plea judge signed that green sheet on the understanding that it pertained to both pleas.
The motion judge properly credited that documentary evidence over plea counsel's assertion that it was the plea judge's "usual practice" not to give immigration warnings. Contrary to the defendant's argument, the mere fact that the plea judge signed only one of the green sheets does not evidence that he failed to advise the defendant of the verbal warning required by G. L. c. 278, § 29D. Just as a green sheet signed by a defendant does not cure a deficiency in a judge's verbal § 29D warning, see Petit-Homme, 482 Mass. at 783, so too a judge's failure to sign one of the green sheets is not dispositive of whether he gave the required verbal § 29D warning.
We vacate the order denying the defendant's motion to vacate convictions, and remand that matter to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
The panelists are listed in order of seniority.