COMMONWEALTH v. VILLANUEVA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On January 14, 2003, the defendant, Alex Villanueva, admitted to sufficient facts on a charge of malicious destruction of property.² After a period of probation, the charges were dismissed. The admission to sufficient facts to this offense, coupled with probation, carried with it mandatory deportation consequences. See Neto v. Holder, 680 F.3d 25, 28 n.5 (1st Cir. 2012). Immigration authorities began proceedings after the defendant returned to the United States through Logan Airport from a trip abroad in 2012. He has since been denied a green card and an order of deportation has issued. He now appeals from the orders denying his second motion for new trial, or in the alternative for reconsideration, in which he asserted that his plea counsel's failure to advise him of the deportation consequences of an admission to sufficient facts constituted ineffective assistance of counsel. See generally Commonwealth v. DeJesus, 468 Mass. 174, 181-182 (2014). The defendant contends that the motion judge erred in denying the motions because the defendant made an adequate showing of prejudice. We affirm.

Discussion. We review the denial of a motion for a new trial to set aside a plea due to immigration consequences for abuse of discretion or other error of law. See Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). The judge passed over the questions whether the defendant's affidavit was sufficient to establish that plea counsel failed to advise the defendant of the deportation consequences of his admission to sufficient facts, and whether any such failure fell below the standards expected of ordinary fallible counsel, id. at 51, and proceeded directly to the question of prejudice.³ As to prejudice, the defendant bore “the substantial burden of showing that (1) he had an ‘available substantial ground of defense’ 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” (citations and footnote omitted). Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). The judge found that there was no credible evidence of prejudice under any one of the three prongs of Clarke.

On appeal the defendant contends that he had a substantial defense to the charge, namely that his conduct was wanton but not intentional. There is no transcript of the plea colloquy, presumably because of the passage of time, and there was no effort to reconstruct the record. The sole evidence in the record of the nature of the offense lies in the police report. That report states that after the eighteen year old defendant was arrested for being a minor in possession of alcohol, he was placed in the back of the police car. After the car arrived at the police station, it was reported that the defendant had kicked the seat and door, and that the door of the car was no longer able to open or close properly. There is nothing in the defendant's affidavit concerning his state of mind at the time or why he kicked the inside of the police car.

The facts as appearing in this record do not raise a substantial defense that his behavior was wanton. The judge was not required to credit the psychologist's opinion stating that the defendant had experienced emotional trauma and was therefore unable to form the intent to cause damage to the property. The facts support a finding of intentional effort born of hostility to cause actual damage to the vehicle. See Commonwealth v. Rumkin, 55 Mass. App. Ct. 635, 640-641 (2002). A substantial defense of wanton conduct is not presented. Compare Commonwealth v. Armand, 411 Mass. 167, 170-171 (1991).

The defendant's reliance on the report of his psychologist is inapt for additional reasons. The report states that as a young man the defendant suffered when his father left the family, he was impulsive, and suffered from attention deficit hyperactivity disorder. The report suggests that the defendant would have been unable to make a knowing, intelligent, and voluntary plea without expert advice of counsel, because his fear of incarceration would have overridden any other consideration. The fact that the defendant had suffered emotional trauma, or carried with him some long term emotional injury, does not rise to the level necessary to establish that the plea was not knowing or voluntary. See Commonwealth v. Cano, 87 Mass. App. Ct. 238, 241 (2015). Appellate counsel does not cite any cases suggesting that the plea was somehow involuntary, and the brief's passing reference to the lack of a knowing, intelligent, or voluntary plea does not rise to the level of appellate argument. See Commonwealth v. Tracy, 50 Mass. App. Ct. 435, 442 (2000); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

Leaving aside whether the plea was knowing or voluntary, the judge denied the motion on the basis that prejudice was not demonstrated. The reference to fear of incarceration cuts against rather than in favor of allowing the motion. If avoiding incarceration was the defendant's motivating impulse, the judge could (and implicitly did) find that a risk of deportation would not have been determinative in the defendant's decision making.

Moreover, the report does not adequately address the defendant's state of mind at the time the offense was committed. Impulsivity does not negate the mental state necessary to prove malicious destruction of property. See Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 4 n.2 (2001). On this record, we cannot say that the judge abused his discretion or erred as a matter of law in determining that the defendant had failed to raise a substantial ground of defense.⁴

The defendant also claims that the motion should have been allowed on the grounds of special circumstances. The defendant has lived in this country since the age of six. While we do not minimize the gravity of a deportation order, there is nothing else in his affidavit that addresses special ties to the United States. His psychologist's affidavit reveals a history of substantial family dislocation. For a period of time at age sixteen the defendant was committed to the custody of the Department of Youth Services. There is no indication that he has a spouse or children, and no reference is made to his mother or other family members. The psychologist's report contains hearsay to the effect that the defendant was employed in a responsible position at the time of the evaluation, but the defendant's affidavit offers nothing regarding his job history, and the judge was not obligated to credit hearsay in the psychologist's report.

On this record, the judge did not abuse his discretion in determining that the defendant had failed to establish special circumstances. We also discern no error or abuse of discretion in the judge's determination that the defendant had not raised a substantial issue warranting an evidentiary hearing on the basis of the record presented.

Conclusion. The orders denying the defendant's second motion for new trial, or in the alternative for reconsideration, are affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   Earlier, the defendant also admitted to sufficient facts on charges of disorderly conduct and resisting arrest. The defendant acknowledges that these offenses do not carry mandatory immigration consequences, see 8 U.S.C. § 1182(a)(2), but states they may be considered as aggravating circumstances in an immigration proceeding. He seeks a new trial only as to the offense of malicious destruction of property.

3.   The defendant filed an affidavit stating that counsel told him nothing about immigration consequences. Plea counsel filed an affidavit stating he had no memory of his advice to the client some seventeen years earlier. The plea was taken before the 2004 amendments to G. L. c. 278, § 29D, which added to the mandatory statutory warnings regarding a guilty plea an additional warning regarding an admission to sufficient facts. See Commonwealth v. Marques, 84 Mass. App. Ct. 203 (2013). Likewise, the alien warning in the green sheet signed by the defendant did not contain a reference to an admission to sufficient facts.

4.   The defendant does not claim, and we do not address, whether a more favorable plea agreement could have been made.