Opinion
11-P-537
04-25-2012
COMMONWEALTH v. MERRICK A. UPHA.
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
On April 12, 2010, the defendant, Merrick A. Upha, pleaded guilty to assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b); assault and battery, G. L. c. 265, § 13(A)(a); and armed robbery, G. L. c. 265, § 17. The defendant filed a motion for postconviction relief, alleging that defense counsel erroneously advised him on the immigration consequences of pleading guilty. On appeal, the defendant argues that the judge abused his discretion in denying the motion.
'We review a judge's decision denying a motion for a new trial . . . 'only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). To prove ineffective assistance of counsel, the defendant has the burden of showing counsel's conduct fell 'measurably below that which might be expected from an ordinary fallible lawyer' and deprived him of 'an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Defense counsel's failure to inform the defendant of the immigration consequences of a guilty plea can constitute ineffective assistance of counsel. See Commonwealth v. Clarke, 460 Mass. 30, 45-46 (2011) (holding that defense counsel's failure to know the defendant's immigration status and, thus, inform him of the effect of a guilty plea on that status 'satisfies the first prong of Saferian'). However, a defendant 'has the burden of establishing that 'there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Here, the defendant has failed to meet this burden. The defendant relies on affidavits, from himself and defense counsel, to make the point that defense counsel did not inform him of his constitutional rights. However, defense counsel denies failing to inform the defendant properly and there is no evidence to the contrary. In addition, even assuming defense counsel so failed, the defendant's affidavit does not allege any facts to suggest that 'but for counsel's errors' he would not have pleaded guilty. Last, it was clear that the defendant knew of his immigration problems. As the affidavit from counsel indicated: 'During my representation at the plea hearing, Mr. Upha knew he was held in custody under an Immigration Detainer.'
'During my representation, I explained at length Mr. Upha's rights, potential defenses, potential penalties and immigration consequences if he were to plead or be convicted of the charges which he pled guilty to.'
The charges against the defendant were serious, one of which carried a life sentence. Additionally, the Commonwealth's case was exceedingly strong, the defendant being caught shortly after the incident with some of the victim's property on him. The bargain he struck was exceedingly generous to him.
It appears further that the defendant admitted to sufficient facts on a charge of possessing cocaine (reduced from distribution) and received a continuance without a finding, which might also have contributed to his deportation order.
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There is nothing before us to suggest that the defendant did not know of the immigration consequences of pleading guilty or to suggest that he would have chosen an alternate path if counsel had informed him differently. As a result, it was within the judge's discretion to deny the motion.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),