Opinion
14-P-109
08-11-2015
COMMONWEALTH v. VORN VONG.
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 Superior Court orders denying his motions for new trial, to correct the record, and for reconsideration. He argues that the judge erred in denying his motion for new trial without first holding an evidentiary hearing, and in failing to address the defendant's ineffective assistance claim under Padilla v. Kentucky, 130 S. Ct. 1473 (2010). We agree. As a result, we vacate the orders and remand for an evidentiary hearing.
Background. On November 26, 1997, the defendant pleaded guilty to rape of a child under the age of sixteen, and indecent assault and battery on a child under the age of fourteen. On January 3, 2013, the defendant filed a motion for new trial, seeking to withdraw his guilty plea on the grounds of ineffective assistance of counsel. In his motion, the defendant alleged that, at the time of his plea, he "was improperly advised that an admission to the indictments(s) . . . could not result in deportation, denial of naturalization or exclusion from this country." The motion was accompanied by two affidavits, one signed by the defendant and one by plea counsel. Plea counsel's affidavit stated that, "[t]o the best of [her] memory," she advised the defendant that, if he "received a sentence of less than one year committed time [he] might avoid serious immigration consequences such as deportation"; she also asserted that she "may have told Mr. Vong that the United States government was not deporting people to Cambodia at the time" his plea was entered.
The motion judge, who was not the plea judge, denied the motion without an evidentiary hearing, saying, "In light of . . . the Commonwealth's opposition and the [defendant]'s waiver having been provided, this motion is denied." The defendant then filed a motion to correct the record pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 934 (1979), seeking permission from the court to correct a misstatement in the Commonwealth's opposition regarding the defendant's legal permanent resident status at the time of the 1997 guilty plea. That motion was "[d]enied for the reasons stated in the Commonwealth's opposition." The defendant moved for reconsideration, claiming that the judge had made her decision before she had reviewed his reply brief to the Commonwealth's opposition to his motion to correct the record. On May 15, 2014, after reviewing all of the related pleadings, the judge concluded that she did "not have a sufficient basis to correct the record as defendant requests, i.e. to determine that defendant was at the time of his conviction a lawful permanent resident."
In its opposition, the Commonwealth had argued, among other things, that the denial was proper as the immigration advice dispensed by plea counsel and the warnings issued by the judge upon tendering a plea were accurate; there was a twenty-five year lapse in time between the plea tender and the motion for new trial; there were inconsistent claims made in the motion, the supporting memorandum, and the affidavits; and the public has an interest in the finality of criminal convictions.
Discussion. A judge may grant a motion for a new trial only "if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). "We review a judge's denial of a motion for a new trial 'to determine whether there has been a significant error of law or other abuse of discretion.'" Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting from Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013). "When, as here, the motion judge did not preside at [the plea hearing], . . . we regard ourselves in as good a position as the motion judge to assess the . . . record." Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
To succeed on his ineffective assistance claim, the defendant was required to supply facts sufficient to show that plea counsel's representation fell "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014), quoting from Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). "If this defendant's plea counsel in fact informed him that, so long as he served less than a year of incarceration, he was not likely to be deported, that advice was ineffective at this [1997] plea hearing." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014). According to plea counsel's affidavit, that is most likely the advice that was given to the defendant and that he relied upon in deciding to plead guilty.
Counsel's advice regarding the risk of deportation is a serious issue for a noncitizen tendering a guilty plea to a charge of rape of a child, considered under Federal law as an aggravated felony for purposes of deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). "Without the benefit of [effective] counsel, a client cannot enter a knowing and voluntary plea." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012). "[A]ny noncitizen convicted of an 'aggravated felony' is deportable, and 'shall, upon the order of the Attorney General, be removed,' or deported." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 397 (2012)), quoting from 8 U.S.C. § 1227(a) (2006). "[I]f a noncitizen has committed a removal offense after [1996], his removal is practically inevitable." Gordon, supra at 398, quoting from Padilla, 130 S. Ct. at 1480.
The "rape, or sexual abuse of a minor" is considered an aggravated felony for purposes of deportation. 8 U.S.C. § 1101(a)(43)(A) (2012).
"On this record, it appears that there is at least a reasonable possibility that the defendant in the present case would have chosen to go to trial rather than face 'charges that made his deportation virtually mandatory.'" Commonwealth v. Martinez, supra at 553, quoting from DeJesus, supra at 179. As a result, we vacate the orders denying the defendant's motions for new trial, to correct the record, and for reconsideration, and remand this matter for further proceedings consistent with this memorandum and order.
An evidentiary hearing will also provide the parties with an opportunity to litigate the issue of the defendant's status at the time of the plea.
So ordered.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 11, 2015.