COMMONWEALTH v. COMPERE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order denying his motion for a new trial. The motion claimed that the defendant's trial counsel was ineffective for failing to properly advise him of the immigration consequences of his guilty plea pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), such that his guilty plea was not knowing and voluntary. We affirm.

Background. We summarize the relevant background. Based on information from a confidential informant corroborated by three controlled purchases of heroin from the defendant, the police applied for and received a warrant to search the defendant's residence. The search resulted in the seizure of heroin, crack cocaine, packaging materials, cutting agent, a digital scale, and a firearm. The defendant was charged in the District Court with illegal possession of a firearm, possession of a firearm in the commission of a felony, possession of heroin with intent to distribute, possession of cocaine with intent to distribute, and a school zone violation.

Ultimately, the firearm offenses were dismissed at the request of the Commonwealth and the defendant pleaded guilty to the drug charges. The defendant was sentenced to one year in the house of correction on the substantive drug charges and a consecutive two-year sentence on the school zone charge.

Over six years later, on October 2, 2017, the defendant, a citizen of Haiti, was served with a notice to appear in a removal proceeding initiated by the United States Department of Homeland Security. The notice alleged that the defendant was subject to deportation based on three convictions for controlled substance offenses: (1) the convictions at issue in this case on April 11, 2011, in the Worcester District Court; (2) a conviction in the Brockton District Court on July 9, 2015, for possession of suboxone; and (3) a conviction in the Haverhill District Court on June 10, 2016, for possession of amphetamine.

On August 1, 2018, the defendant filed the motion for a new trial claiming ineffective assistance of counsel. Following an evidentiary hearing, the judge (who had also taken the plea) denied the motion in a comprehensive written decision, reasoning that the defendant had failed to meet his burden to show that his counsel was ineffective and that he suffered prejudice as a result. This appeal followed.

Discussion. “A motion to withdraw a guilty plea is treated as a motion for a new trial,” Commonwealth v. Furr, 454 Mass. 101, 106 (2009), and is “committed to the sound discretion of the judge.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014). To prevail on his motion to withdraw a plea for ineffective assistance of counsel, the defendant was required to “show[ ] that his attorney's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorney's unprofessional errors.” Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). For the reasons that follow, we discern no error in the judge's determination that the defendant failed to meet this burden.

It is undisputed that the defendant, a Haitian citizen, was subject to mandatory deportation based on his convictions of controlled substance offenses. See 8 U.S.C. § 1227(a)(2)(B)(i); Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014). The defendant claims that plea counsel failed to advise him that he would be deported as a result of his guilty pleas and that, had he known that, he would have attempted to negotiate a more favorable plea agreement, or elected to proceed to trial.

After evaluating the pleadings and the affidavits of the defendant and plea counsel, the judge found otherwise, concluding that “the affidavit of counsel, along with the Court's practice of asking defense counsel and the defendant about the possibility of immigration consequences suggests that the defendant was adequately advised of the consequences that his convictions would have for his immigration status.” For the reasons set forth on pages twenty through twenty-two of the Commonwealth's brief, we see no reason to disturb this ruling.

The judge credited plea counsel's affidavit that, although he did not have a specific memory of his conversation with the defendant over six years earlier, it was his normal practice to ascertain the immigration status of his clients and inform them of the immigration consequences of a guilty plea. The judge also appropriately relied on his own customary practice of advising a defendant of the immigration consequences during the plea colloquy and specifically inquiring of counsel whether he had discussed those consequences with the defendant.² See Commonwealth v. Yardley Y., 464 Mass. 223, 228-229 (2013) (judge acted within her discretion in relying on her general practice). In light of this evidence, the judge did not abuse his discretion in discrediting the defendant's self-serving claim that he had not been advised of the “consequence[ ] of deportation.”³ See Commonwealth v. Lopez, 426 Mass. 657, 661 (1998) (judge not required to credit defendant's self-serving affidavit).

Finally, even if the advisement regarding immigration consequences had been inadequate, the defendant has failed to establish prejudice. “In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, the 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.’ ” Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must “convince the court that [his] decision to reject the plea bargain would have been rational under the circumstances.” Clarke, supra, quoting Padilla, 559 U.S. at 372. To satisfy this requirement,

“the defendant bears the substantial burden of showing that (1) he had an available, substantial ground of defence, 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 footnote omitted).

Clarke, supra at 47-48.

Here, the evidence against the defendant was strong and he did not offer an “available, substantial ground of defence.” Id. at 47. Although the quantity of drugs seized at the defendant's residence was not significant, the packaging materials and twenty-eight knotted individual bags of drugs found in the defendant's residence were powerful evidence of an intent to distribute. The defendant's assertion that he could have negotiated a more favorable resolution is belied by the record. His attempt to resolve the case with a sentence of thirty days in the house of correction on the drug charges followed by two years on the school zone offense was rejected by a different judge, presumably because the defendant was already on probation for an unrelated drug offense. The defendant failed to demonstrate that the Commonwealth would have made a more favorable offer that would have been accepted and approved by the judge. See Commonwealth v. Marinho, 464 Mass. 115, 129 (2013). Finally, the defendant's argument that his family situation provided special circumstances supporting his claim that he would have placed particular emphasis on the immigration consequences of his guilty plea, is undermined by his guilty pleas to two more recent drug offenses subjecting him to removal. In these circumstances the judge did not abuse his discretion in discrediting the “special circumstances” argument.

For all of these reasons we discern no abuse of discretion in the judge's denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   Because of the age of the case, the recording of the plea colloquy no longer existed.

3.   Prior to pleading guilty, the defendant executed a tender of plea form, acknowledging that he understood that his “plea of guilty ․ may have [the consequence] of deportation.”