COMMONWEALTH v. NDAULA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2008, the defendant was charged in District Court with possession of a class E substance. Through a plea agreement, he admitted to sufficient facts, and his case was continued without a finding (CWOF) for one year. In 2018, representing himself, he filed a motion to withdraw his plea on the grounds that his attorney was constitutionally ineffective by failing to provide him adequate advice regarding the immigration consequences of his plea. See Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010). A District Court judge denied the motion without a hearing, and subsequently denied the defendant's motion for reconsideration, also without a hearing. We affirm.

The defendant's motion was accompanied by an “affirmation” from the defendant that we will assume -- for the purposes of our analysis -- satisfies the need for an affidavit. In that affirmation, the defendant avers that he was informed that “paying a fine and staying trouble free for one year would result in [the] charges being dismissed.” He further avers that when he agreed to the plea agreement, he did not understand that a CWOF disposition could be considered as a criminal conviction for immigration purposes.

The omissions in the defendant's submittal in support of his motion are salient. Absent is an affidavit from his plea counsel regarding what legal advice the defendant was given regarding the potential immigration consequences of the CWOF disposition. Nor did the defendant offer any explanation for the absence of such an affidavit. In addition, although the defendant avers that he is now facing potential deportation, he does not specify what role his CWOF plays in that process. The defendant also does not explain what he would have done differently had he fully been apprised of the immigration consequences when he accepted the plea agreement.

The absence of an affidavit from plea counsel “speaks volumes.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). Without any explanation as to why the defendant could not secure such an affidavit, the motion judge was not required to accept the defendant's allegations about the advice he received. See Commonwealth v. Cano, 87 Mass. App. Ct. 238, 244 (2015). Denial of the motion was justified on this ground alone.

Moreover, even if we assumed arguendo that the defendant's plea counsel was negligent in not advising him about the likelihood of facing potential deportation as a result of the plea agreement, see Commonwealth v. DeJesus, 468 Mass. 174, 180-182 (2014), his motion still was deficient. To prevail on his claim of ineffective assistance, the defendant would have had to demonstrate that the advice he received “deprived [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In the context of a plea bargain, that means “the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded [as he did] and would have insisted on going to trial.’ ” Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Supreme Judicial Court has laid out three paths to proving such prejudice, see Clarke, supra at 47-48, and the defendant has not shown how any of these paths apply to him.

Although the defendant makes a vague allusion to “suppression and proof problems” in the underlying prosecution, he provided no explanation as to what these problems were and why it would have been rational for him to reject the plea offer and proceed to trial. Similarly, the defendant has made no showing that he had any realistic chance of securing a better plea bargain. Finally, he nowhere set forth what “special circumstances” were present that may have provided him particular reason to reject the plea agreement and hope for a better result at trial. Clarke, 460 Mass. at 47-48. Without his having shown how any deficiency in the advice that his plea counsel provided caused him prejudice, the motion judge was justified in denying his motion to withdraw the plea without a hearing. See Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016) (whether evidentiary hearing warranted for motion for new trial depends not just on seriousness of issue but also on “adequacy of the defendant's showing on that issue”). The defendant also has not shown that the judge abused her discretion in denying his motion for reconsideration.

Order denying motion for new trial affirmed.

Order denying motion for reconsideration affirmed.