COMMONWEALTH v. TORRES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Luis Torres, appeals from the denial of his motion to withdraw his plea without a hearing. He advances two arguments on appeal. First, he maintains that his motion raised a substantial issue of ineffective assistance of plea counsel such that it should not have been denied without an evidentiary hearing. Second, he puts forward an ineffective assistance of counsel claim. Specifically, he claims that his plea counsel failed to adequately advise him of the immigration consequences of his pleas, and that counsel's constitutionally deficient performance in that respect caused him prejudice. Padilla v. Kentucky, 559 U.S. 356 (2010). We discern no error of law or abuse of discretion in the judge's decision. We affirm.

Background. On August 9, 2017, the defendant pleaded guilty to two counts of assault with a dangerous weapon and one count of carrying a firearm without a license. In February 2019, the defendant filed a motion to vacate his guilty plea, claiming ineffective assistance of counsel for failing to adequately advise the defendant of the immigration consequences of pleading guilty. The motion was denied without a hearing by the same judge who presided over the change of plea hearing.

In support of the motion the defendant submitted affidavits and other documents. In his affidavit the defendant represented that he arrived in the United States from the Dominican Republic when he was five years old in 2003. The defendant further stated that his attorney told him that although the offenses that he was charged with could render him deportable, there was a law preventing the deportation of anyone who came into the United States under the age of eight. The defendant also submitted affidavits from his mother and girlfriend stating that trial counsel told them the defendant would not be deported because he had come to the United States when he was five. In addition, the defendant filed a supplemental memorandum that included a decision of the U.S. Immigration Court ordering his removal to the Dominican Republic. The defendant contends in his affidavit that he would not have pleaded guilty to the offenses had he been made aware that it would lead to deportation, but would have risked trial and the potential for a longer sentence.

In an affidavit that was filed in response to an order by the motion judge, the defendant's trial attorney represented that he advised the defendant the offenses “would make him subject to deportation if the Federal government sought to remove him”; counsel agreed that he told the defendant “that it was possible he would not be deported since he had come to the United States as a child,” but he made no guaranty that he would not be deported.

The judge denied the defendant's motion without a hearing in a comprehensive and well reasoned decision. In his decision, the judge credited trial counsel's affidavit and found the defendant's and his mother's and girlfriend's affidavits selfserving and unpersuasive and found that the defendant failed to show that trial counsel's performance “fell measurably below that of an ordinary fallible attorney.”

Discussion. 1. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). We review the motion judge's conclusion for abuse of discretion or error of law. See Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). Substantial deference is warranted where, as here, the judge passing on the motion was the same judge who took the plea. See Commonwealth v. Grant, 426 Mass. 667, 672 (1998).

2. Denial of hearing. The defendant contends that it was error to deny the motion without an evidentiary hearing. We disagree. “The decision to hold an evidentiary hearing on a motion for a new trial is ‘left largely to the sound discretion of the judge’ ” (citation omitted). Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015). “Indeed, [Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001),] encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). We review the decision not to hold an evidentiary hearing for abuse of discretion.

A judge “must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing’ ” (citation omitted). Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). Here, the judge found that “the affidavits and other documents before the court fail[ed] to establish a substantial issue as to the alleged ineptitude of plea counsel.” In denying the motion for a new trial and the request for an evidentiary hearing, the judge declined to credit the defendant's affidavit, as well as his mother's and girlfriend's affidavits. This was within the judge's discretion. “A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, and may evaluate them in light of factors pertinent to credibility, including bias, self-interest, and delay.” Commonwealth v. Torres, 469 Mass. 398, 403 (2014). We conclude that the judge did not abuse his discretion in not holding an evidentiary hearing on the defendant's motion for new trial.

3. Denial of motion. To prevail on a claim of ineffective assistance of counsel, “the defendant bears the burden of showing 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” (citation omitted). Lavrinenko, 473 Mass. at 51. “Thus, a defendant must prove both deficient performance and prejudice.” Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012). Here, the judge did not find persuasive the defendant's claim that trial counsel advised him that he could not be deported because of his age when he entered the country. Because the judge was not required to credit the defendant's affidavits, we discern no error of law or abuse of discretion in the judge's conclusion that trial counsel's performance did not fall “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We therefore need not address the question of prejudice.

Order denying motion for new trial affirmed.