COMMONWEALTH v. CLEMENTE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This appeal stems from the defendant's claim of ineffective assistance of counsel. In 2005, he was charged with six motor vehicle violations, of which the most notable for present purposes was leaving the scene of an accident causing personal injury. G. L. c. 90, § 24 (2) (a1/2) (1).² He admitted to sufficient facts and was found guilty on that count. In 2017, he filed a motion to withdraw his guilty plea, arguing that plea counsel had been ineffective in failing to inform him of the immigration consequences of his plea.³ The motion judge (who had not been the plea judge) allowed the motion. The Commonwealth now appeals, arguing that the motion judge should not have done so without an evidentiary hearing. On this record, we agree, and thus we remand for such a hearing and further findings.

Discussion. “A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judge's decision on such a motion “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Though it is “unusual” to grant such a motion without holding an evidentiary hearing, Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012), a judge may rule without a hearing if the motion does not raise a substantial issue. See Commonwealth v. Denis, 442 Mass. 617, 628 (2004); Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). “In determining whether a motion for a new trial warrants an evidentiary hearing, both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue must be considered.” Denis, supra. Because an ineffective assistance of counsel claim “readily qualifies as a serious issue ․ our analysis whether an evidentiary hearing was required focuses on the adequacy of the showing made with respect to that serious issue.” Id. at 629. But “[a] defendant's ‘self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue.’ ” Id. at 633-634, quoting Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003). See Commonwealth v. Companonio, 420 Mass. 1003, 1003 (1995) (when affidavits are missing key elements, case generally remanded for evidentiary hearing).

To prevail on his claim of ineffective assistance, the defendant needed to establish that, first, counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and second, counsel's performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

For counsel's performance to be effective, he must advise clients “when the deportation consequence [of a guilty plea] is truly clear.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010). Commonwealth v. Clarke, 460 Mass. 30, 42 (2011). See Commonwealth v. Sylvain, 466 Mass. 422, 424 (2013), S.C., 473 Mass. 832 (2016). According to the defendant's affidavit, his plea counsel advised him “that the plea agreement that the government was offering would not be a problem for immigration,” and he “was never told that [a guilty plea] could have immigration consequences.” The motion judge credited the affidavit.⁴ Although there may have been reason here to do so without an affidavit from plea counsel,⁵ it would have been helpful to have findings explaining why the judge chose to do so.

More problematic here is that, without any discussion or findings of prejudice (the second prong of Saferian), the motion judge concluded that “justice may not have been done” and granted the motion. We cannot conclude on this record that the defendant sufficiently demonstrated prejudice.

To do so, the defendant must establish that “(1) 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 ․ and (2) that a decision to reject the plea bargain would have been rational under the circumstances” (quotation and citation omitted). Sylvain, 466 Mass. at 438. Rejecting the plea would have been rational if the defendant can show that (1) he had a substantial defense to the charge, (2) he could have negotiated a different plea bargain without the adverse immigration consequences, or (3) other special circumstances were present. Clarke, 460 Mass. at 47-48. The defendant does not argue that any special circumstances were present,⁶ so we focus our discussion on the other two categories of prejudice, beginning with a substantial defense.

A defense is substantial when the court has “a serious doubt whether the jury verdict would have been the same had the defense been presented.” Commonwealth v. Millien, 474 Mass. 417, 432 (2016). The defendant argues that he had a substantial defense: he did not know he had hit anyone with his vehicle.⁷ But the only evidence supporting that assertion was the defendant's own affidavit. The motion judge did not comment on the defendant's claimed lack of knowledge or any other substantial defenses.⁸ Absent findings by the judge, we cannot say “whether [the defendant] was sufficiently prejudiced to justify vacating his guilty plea” or “whether [his] affidavit is merely self-serving.” Sylvain, 466 Mass. at 439.

Next, the defendant argues that an alternative plea was possible: the Commonwealth might have agreed to place the leaving the scene charge on file in exchange for a more significant sentence on the charge of operating under the influence of alcohol, to which the defendant also pleaded guilty. But the statute prohibits placing on file a leaving the scene charge. G. L. c. 90, § 24 (2) (a1/2) (3). Without any findings by the motion judge, it is thus not clear on this record whether any alternative plea bargain with less harmful immigration consequences was reasonably available to the defendant.

The motion judge, if disinclined to deny the motion without an evidentiary hearing, should have held such a hearing and made clear findings on both performance and prejudice.⁹ “We emphasize that the judge on remand should ‘provide some reasons for accepting or rejecting a particular affidavit ․ to assist the appellate court in understanding whether the judge acted within his or her discretion.’ ” Commonwealth v. Lys, 481 Mass. 1, 7 (2018), quoting Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). We vacate the order allowing the defendant's motion to withdraw his guilty plea and remand for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded

FOOTNOTES

2.   The parties agree that the leaving the scene charge was the only charge with immigration consequences.

3.   The motion to withdraw the guilty plea included an affidavit from immigration counsel stating that the leaving the scene conviction was a “crime involving moral turpitude,” making him “ineligible for residency in the United States.”

4.   The motion judge also stated that “[t]he docket itself is not clear as to the issue of whether or not the defendant received any alien or immigration warnings.” The docket in the record reflects the defendant's receipt of immigration warnings pursuant to G. L. c. 278, § 29D. We of course recognize that such warnings are no substitute for effective assistance of counsel regarding immigration issues. See Clarke, 460 Mass. at 48 n.20.

5.   We recognize that motion counsel represented that he had attempted to contact plea counsel without success. A judge is not precluded from relying on such statements, but findings to that effect would be helpful.

6.   Although the defendant's affidavit states that he is currently married to a United States citizen and has two young children, he acknowledged at the motion hearing that this was not the case in 2007, and disclaimed any special circumstances argument.

7.   The Commonwealth concedes that, if true, lack of knowledge would be a legal defense. A leaving the scene conviction requires proof that the defendant “knowingly collid[ed] with or otherwise caus[ed] injury to [a] person.” G. L. c. 90, § 24 (2) (a1/2) (1).

8.   Because the defendant does not expressly claim that his plea colloquy was defective, we must presume that before accepting the plea, the plea judge was satisfied that the defendant understood the knowledge element of the leaving the scene charge, and that by pleading guilty, the defendant admitted to that element. See Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 (1997) (plea colloquy must include “an explanation ․ of the elements of the crimes charged or an admission by the defendant to the facts constituting those crimes”).

9.   The Commonwealth might have been better served if it had conditionally requested such a hearing, instead of merely opposing the motion outright.