COMMONWEALTH v. BARBOSA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Alfeu Barbosa, appeals from an order denying his motion to withdraw his pleas and vacate the resulting convictions.² When his pleas were tendered on March 27, 2017, the defendant was a lawful permanent resident of the United States, who had emigrated from Cape Verde when he was ten years old; his pleas rendered him deportable. On January 7, 2019, he was detained by United States Immigration and Customs Enforcement (ICE), and, on July 30, 2019, a United States Immigration Court judge ordered him deported to Cape Verde.

On August 29, 2019, the defendant filed a motion to withdraw his pleas and to vacate his convictions; he argued that he had received ineffective assistance of counsel at the time of the pleas, claiming, inter alia, that he would not have pleaded guilty if his counsel had properly advised him about the immigration consequences of his pleas. The motion judge, who was also the plea judge, denied the motion after an evidentiary hearing. The judge agreed that the defendant's counsel was ineffective ³ but found that the claim failed for lack of prejudice.

On appeal, the defendant argues that the motion judge erred in finding that he was not prejudiced by the ineffective representation. Specifically, he contends that there was a reasonable probability that he could have negotiated different pleas, and that he presented special circumstances supporting the conclusion that he “placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). For the following reasons, the order denying the defendant's motion is vacated and the matter is remanded for proceedings consistent with this memorandum and order.

Background. As the judge did not make specific findings of fact, the following facts are drawn from the record; the Commonwealth does not contest the underlying facts, only the conclusions to be drawn therefrom. The defendant was born on October 23, 1997, in Fogo, Cape Verde. He lived with his mother in Praia, Cape Verde, until age three or four when his father took him back to Fogo.⁴ In Fogo, the defendant's paternal and maternal grandparents split the responsibility as his primary caretakers. The defendant briefly attended school, but his primary education came from his grandparents while working in the fields harvesting corn and beans.

When the defendant was approximately eight years old, his mother died of a heart attack. The defendant flew back to Praia for her funeral, and thereafter remained in Praia with his maternal uncle for approximately two years. During that time, the defendant's uncle ran a bar and often left the defendant alone in the house; the defendant essentially took care of himself, frequently relying on neighbors for food and company.

When the defendant was approximately ten years old, his father brought him to the Dorchester section of Boston to live with his father's wife and their two daughters.⁵ While living with his father, the defendant suffered both physical and mental abuse.⁶ The abuse culminated when the defendant was fourteen. After receiving a call about an issue at school, the defendant's father beat him severely, knocked him to the ground, and then continued punching and kicking him. The defendant fled and was discovered outside a police station. An officer leaving the station asked him what had happened and, when he told her, the police notified the Department of Children and Families (DCF) and transported the defendant to a nearby hospital. Thereafter, DCF took custody and his father was criminally charged for the beating.

Over the next two years, DCF sent the defendant to many different placements; he ran from them because, he recounts, there was physical violence and he did not feel safe. Eventually, the Department of Youth Services took custody. Following his release, the defendant was homeless. His father refused to permit him to enter his home. At one point, the defendant snuck into his father's home to take a hot shower and get clean clothes. When the father discovered him, he called the police and reported the defendant for trespassing. During this time, the defendant relied on friends for housing, but could not stay at one place for too long.

On the suggestion of a friend, the defendant contacted Lezito DaVeiga about a place to stay. Eventually, the defendant moved in with DaVeiga and began to sell marijuana for him in exchange for housing. Over time, the defendant became aware that DaVeiga possessed firearms and was affiliated with a gang. When the defendant tried to move out, DaVeiga threatened him and insisted that he owed him a debt. Eventually, DaVeiga was arrested and deported to Cape Verde. However, DaVeiga's threats continued to arrive from Cape Verde over social media. Specifically, DaVeiga promised to kill the defendant immediately -- as soon as he returned to Cape Verde. In the meantime, the defendant still struggled to find housing.

On April 12, 2016, the defendant was arrested on a number of charges.⁷ As a result, Quincy police officers identified him as a suspect for a breaking and entering offense in Quincy. On April 13, 2016, he was arraigned on the five charges that were the basis for the pleas at issue. See note 1, supra. On March 27, 2017, the day of the defendant's pleas, the Commonwealth answered ready for trial on counts one through four,⁸ but agreed to dismiss count three and count four if the defendant agreed to plead guilty. On the remaining charges, the prosecutor recommended a sentence of eighteen months in the house of correction, to be served concurrently with a sentence the defendant was then serving. Defense counsel recommended that the defendant serve only one year.

At the time of the pleas, the victim gave a victim impact statement, explaining that his home had been broken into on two separate and unrelated instances. Understandably, he expressed considerable concern about the effect that the video recording of the defendant walking around his house with a knife would have on his two boys. He also said that it would be unjust for the defendant to serve a concurrent sentence with the sentence he was then serving. At the motion hearing, the judge emphasized that she found the victim's statement compelling.

The judge accepted the Commonwealth's recommendation of eighteen months concurrent. She explained, “[g]iven his record, which dates back to his juvenile days, which are replete with B & E homes ․ I would adopt the Commonwealth's recommendation․ Otherwise, I see him getting from and after time.”

Significantly here, these sentences had profound consequences for the defendant's immigration status. Under Federal law, breaking and entering in the daytime and larceny over $250, when accompanied by a term of imprisonment of at least one year, are aggravated felonies. 8 U.S.C. § 1101(a)(43)(G) (2018). The relevant Federal statute provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii) (2018). Accordingly, the defendant's sentences rendered him deportable; on January 7, 2019, when the defendant was in court for another matter, ICE took him into custody.

As aggravated felonies, the defendant's convictions severely limited his options to remain in the United States. First, he is ineligible to apply for cancellation of removal. See 8 U.S.C. § 1229b(a)(3) (2018); Commonwealth v. Valdez, 475 Mass. 178, 188-189 (2016). He also is barred from applying for asylum. See 8 U.S.C. § 1158(b)(2)(A)(ii) (2018); 8 U.S.C. § 1158(b)(2)(B)(i) (2018). He is barred from applying for a withholding of removal under the Convention Against Torture (CAT), see 8 C.F.R. § 208.16(d)(2) (2019); 8 U.S.C. § 1231(b)(3)(B) (2018); and, he is permanently barred from applying for readmission, see 8 U.S.C. § 1182(a)(9)(A)(ii) (2018); 8 U.S.C. § 1182(h) (2018). The defendant applied for a deferral of removal under the CAT.

On July 4, 2019, in preparation for the defendant's immigration hearing for his CAT application, Dr. Claudia Pucci conducted a psychological evaluation and diagnosed the defendant with major depressive disorder and posttraumatic stress disorder according to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. She opined that the defendant's fear for his life and safety if he is returned to Cape Verde are credible; he presented suicidal ideation that is consistent with her diagnosis; and deportation could further increase his risk of imminent self-harm. Moreover, the defendant's relationship with his fiancé and his motivation to be a partner to her are protective factors in his mental health, and physical separation from her would significantly undermine his mental health and ability to treat his major depressive disorder and posttraumatic stress disorder. Dr. Pucci concluded that the results could be fatal if the defendant were to return to Cape Verde and not have access to the appropriate mental health services and, also, that remaining in the United States would allow him to seek appropriate treatment.

Liz Miranda, a State Representative of the Fifth Suffolk District, also wrote a letter in support of the defendant. Miranda, a Cape-Verdean American, has traveled to Cape Verde and spoken directly with deportees. She said that, along with violence and gang issues, “many who have been deported ․ have nowhere to live and do not have access to basic care. Medical needs are left unmet, especially for those who have mental health needs.”

On July 24, 2019, following a hearing on the merits, an immigration judge denied the defendant's application for deferral of removal under CAT. She concluded that the defendant “did not meet his heavy burden of establishing that it is more likely than not that he will be subject to torture in Cape Verde.”⁹ However, the judge explicitly credited the defendant's testimony about his fear of returning to Cape Verde and “acknowledge[d] the difficulties that the [defendant] may experience upon returning to Cape Verde, a country that is unknown to him and with no family support.”

On August 29, 2019, as noted supra, the defendant filed a motion to withdraw his pleas and to vacate his convictions, arguing that he had received ineffective assistance of counsel. The defendant averred that if he had known of the immigration consequences, he would not have accepted the plea bargain. Rather, he would have pursued other options, including going to trial. He argued that rejecting the plea bargain would have been rational under either of two theories: (1) there is a reasonable probability that a different plea bargain (absent such immigration consequences) could have been negotiated at the time; and (2) the presence of special circumstances supports the conclusion that he would have placed a particular emphasis on immigration consequences in deciding whether to plead guilty. The motion judge denied the motion after an evidentiary hearing, finding that the defendant did not establish prejudice.¹⁰

Discussion. A motion to vacate an admission to sufficient facts is treated as a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014). We review the denial of such a motion for “a significant error of law or other abuse of discretion” (citation omitted). Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018). An abuse of discretion occurs “where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We extend substantial deference to a motion judge who was also the plea judge. Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016).

Because the defendant is not a United States citizen and there is no question that an admission to sufficient facts, coupled with the disposition the judge stated she would impose, would have “ ‘truly clear’ deportation consequences,” plea counsel was required to advise the defendant of that consequence. Commonwealth v. Lys, 481 Mass. 1, 5 (2018), quoting Padilla v. Kentucky, 559 U.S. 356, 369 (2010). The defendant asserts, and the Commonwealth concedes, as the judge found, that plea counsel did not do so. Accordingly, plea counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

As a baseline requirement for raising an issue of prejudice, a defendant must allege that he or she would have gone to trial if given constitutionally effective advice. See Lys, 481 Mass. at 7. Here, the defendant's affidavit satisfied the test. He averred that he would have pursued other options, including going to trial, had he known about the immigration consequences of his pleas. Compare id. (baseline requirement for raising issue of prejudice satisfied by defendant's affidavit which averred same).

Once a defendant has satisfied this baseline requirement, a judge should proceed in two steps. First, the judge must “determine whether the defendant has shown that a decision to reject the plea bargain would have been rational under the circumstances” (quotation and citation omitted). Lys, 481 Mass. at 9. Proving rationality requires showing at least one of the following Clarke factors: (1) an available, substantial ground of defense that the defendant would have pursued if given proper advice about the plea's dire immigration consequences; (2) a reasonable probability that the defendant could have negotiated a plea bargain that did not include those dire immigration consequences; or (3) special circumstances supporting the conclusion that the defendant “placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Clarke, 460 Mass. at 47-48. “If the defendant fails to establish any of these Clarke factors, then the ineffective assistance of counsel claim must fail for lack of prejudice.” Lys, supra at 7.

Here the judge found that the claim failed to satisfy any of the Clarke factors. Regarding the defendant's special circumstances, the judge concluded, “[t]he court respectfully rejects defendant's argument that ․ special circumstances exist that would require a finding of prejudice.”¹¹ In reaching her conclusion, the judge made no specific factual findings. As a result, “it is impossible to discern from this statement whether the judge disbelieved the defendant's affidavits as they pertained to the special circumstances analysis or whether [s]he decided that the defendant did not aver any facts that, even if believed, would qualify as special circumstances.” Lys, 481 Mass. at 8. Arguably, the evidence of the defendant's circumstances provided on this record –- some of which, as noted, explicitly were credited by the immigration judge ¹² –would support a conclusion that the defendant might reasonably have accepted even a longer total sentence on a combination of charges in order to forestall the immigration consequences of the plea bargain he accepted. For that reason, we remand the matter with instructions to provide findings relating to the issue of special circumstances and, if necessary, to hold an additional evidentiary hearing for that purpose. See Commonwealth v. Sylvain, 466 Mass. 422, 424 (2013).

Of course, the decision on the issue of prejudice will be for the motion judge. However, on the record before us, we cannot say that the defendant will be unable to meet this burden. See Lys, 481 Mass. at 8 (“In evaluating whether the defendant has established the existence of special circumstances, a judge must consider collectively all of the factors supporting the conclusion that the defendant ‘placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty’ ” [citation omitted] ). His situation -- he was brought to the United States from Cape Verde at the age of ten and has not since returned; he has friends, family, and a fiancé in the United States; he has no connection with any family members in Cape Verde; he is not now proficient in the language spoken in Cape Verde; and he has been diagnosed with serious mental health issues, for which treatment would not be available in Cape Verde -- compares favorably with that of the defendant in Lys, supra at 9.

Furthermore, in Commonwealth v. Cano, 87 Mass. App. Ct. 238, 248 (2015), we found a substantial issue had been raised concerning the presence of special circumstances where a doctor opined that the defendant would face extreme difficulties were he to be returned to Colombia. Here, the record before the motion judge included an affidavit and testimony from the defendant indicating a tumultuous and abusive childhood; a psychological evaluation diagnosing the defendant with severe mental health issues that, if left untreated in Cape Verde, could be fatal; and, evidence that Cape Verdean deportees do not have access to basic care and medical needs, especially mental health services.

Should the judge find that special circumstances exist, the next issue is 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. See Commonwealth v. Lavrinenko, 473 Mass. 42, 55, 59 (2015). In Lys, 481 Mass. at 11, the court reaffirmed the “nonexhaustive list of potential factors” announced in Lavrinenko, which include “the defendant's assessment of success at trial [and] the risks of going to trial rather than pleading guilty.” However, any “assessment of the apparent benefits of a plea offer ․ must be conducted in light of the recognition that a noncitizen defendant confronts a very different calculus than that confronting a United States citizen.” DeJesus, 468 Mass. at 184. This is true because “[t]he decision whether to plead guilty ․ involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive.” Lys, supra, quoting Lee v. United States, 137 S. Ct. 1958, 1966 (2017). On this record, it appears that there is at least a reasonable possibility that the defendant would have chosen to go to trial –- or even chosen to negotiate a different plea deal with a longer total period of incarceration, albeit with the sentence for each charge kept to less than one year, in order to avoid the “aggravated felony” category of Federal immigration law rather than face a result “that made his deportation virtually mandatory.” Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 553 (2014), quoting DeJesus, supra at 179.

For the foregoing reasons, the order denying the defendant's motion is vacated and the matter is remanded for proceedings consistent with this memorandum and order.

So ordered.

FOOTNOTES

2.   On April 13, 2016, the defendant was arraigned on five offenses, including breaking and entering a building in the daytime (G. L. c. 266, § 18) (count one); larceny over $250 (G. L. c. 266, § 30 [1] ) (count two); receiving stolen property (G. L. c. 266, § 60) (count three); witness intimidation (G. L. c. 268, § 13B) (count four); and attempt to commit a crime (G. L. c. 274, § 6) (count five). On March 27, 2017, the defendant admitted to sufficient facts as to the breaking and entering a building in the daytime and larceny over $250 charges, and the remaining charges were dismissed. For brevity, we refer to the admissions as guilty pleas.

3.   The judge stated that “defense counsel ․ provided advice that was not clear, accurate or specific as to the immigration consequences of the plea.”

4.   Prior to this, the defendant's father lived in Portugal; after bringing his son to Fogo, he moved with him to the United States.

5.   The defendant had no contact and formed no relationship with his father before moving with him to the United States.

6.   The mental abuse included an incident where his father told him “Your mother is in hell” and also one where his father shaved the defendant's head for punishment. The physical abuse included several serious beatings – for things such as playing with other children outside of a church service. Once, during a church retreat, the defendant's father punched him across the face in front of other people.

7.   The defendant was charged with attempt to commit a crime, breaking and entering, and misleading an officer. He also was charged on three outstanding warrants from the Dorchester Division of the Boston Municipal Court Department: breaking and entering a building in the daytime (felony) and larceny over $250 (docket number 1607CR000396); breaking and entering in the daytime (felony) and larceny over $250 (docket number 1607CROOOl12); and, breaking and entering and trespassing (docket number 1507CROO5184).

8.   Count five was dismissed without prejudice as the Commonwealth was not ready on that charge.

9.   The judge concluded that the defendant had failed to establish that the government of Cape Verde will acquiesce to the defendant's torture because he is a criminal deportee. Nor could the defendant establish that his mental illness would manifest in a way that would more likely than not lead to his imprisonment and torture. Accordingly, the defendant's argument that private actors would torture and kill him upon arriving to Cape Verde was insufficient.

10.   The motion judge also rejected the “defendant's argument that there were substantial grounds of defense”; however, as the defendant does not now contest this conclusion, we do not address it.

11.   As noted, the defendant does not argue that there were substantial grounds of defense to the underlying charges.

12.   Of course, the motion judge here is free to make her own judgments regarding credibility, based upon the evidence before her.