COMMONWEALTH v. ALBERTO ESPINAL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant filed a motion in the District Court to “vacate [his] admission to sufficient facts” to one charge of distribution of cocaine. In support of that motion, the defendant, who was a lawful permanent resident who immigrated to the United States from the Dominican Republic, made two arguments. First, he claimed that the immigration warning given by the judge did not comply with the requirements of G. L. c. 278, § 29D, because the judge referred only to the immigration consequences of a guilty plea and not those of an admission to sufficient facts. Second, he claimed that his lawyer provided him with ineffective assistance by not advising him that, among other consequences, the plea rendered him deportable.

Following an evidentiary hearing, the motion was denied by the same judge who had presided over the change of plea hearing. As we discuss in more detail below, the judge rejected the premise that the defendant had admitted to sufficient facts and found instead that the defendant had pleaded guilty to the offense. As a result, the judge reasoned, an immigration warning that advised the defendant of the consequences of a guilty plea was adequate. The judge also found that the defendant's attorney had advised the defendant of the consequences of his guilty plea and rejected the defendant's claim of ineffective assistance of counsel.

The defendant appealed, and while his appeal was pending, he obtained a stay of appellate proceedings and permission from a single justice of this court to file another motion (the second motion) seeking relief in the District Court.² In the second motion, the defendant again alleged that the immigration warning was inadequate and that counsel was ineffective. He also requested a “rehearing” of the original motion on the ground that the plea judge was biased. That motion was denied with no consideration of the merits by a different judge, and the defendant appealed. The already pending appeal from the denial of the defendant's original motion and the appeal from the denial of his second motion were consolidated. For the reasons discussed below, we affirm the orders denying both motions.

Background. On September 21, 2016, the defendant attempted to tender an admission to sufficient facts for a finding of guilty on one charge of distribution of cocaine, in violation of G. L. c. 94C, § 32A. As stated by the prosecutor, the allegations were that the defendant was a member of a drug distribution ring operating in Lawrence and that, on December 15, 2014, he sold $100 worth of cocaine to an undercover police officer.³ After providing a recitation of the facts, the prosecutor informed the judge that the parties' recommendations for disposition were “vastly different.” The prosecutor directed the judge's attention to the “green sheet,” a standard two sided preprinted form used in connection with a tender of a guilty plea or admission to sufficient facts.⁴ As the prosecutor explained, the Commonwealth recommended a guilty finding and that a sentence of eighteen months in the house of correction suspended for two years be imposed, while the defendant's lawyer recommended that the defendant admit to sufficient facts to support a guilty finding and that the matter be continued without a finding for two years. The parties' recommendations are set forth in handwritten notations on the front page of the form in designated boxes.⁵ After hearing from the prosecutor, who described the Commonwealth's offer as “generous” due to the level of the defendant's involvement in the drug distribution scheme, and defense counsel, who emphasized that the defendant had no prior criminal record and was employed, the judge rejected both recommendations. He then offered an alternative “disposition,” which he described to the defendant as follows:

“Mr. Espinal, I'm not entirely in agreement with either attorneys' recommendation. (Inaudible.) I'm telling you in advance that it's not (inaudible) so listen carefully.

“If you would agree to this disposition, you would be admitting that on December 15, 2014, you distributed a class B substance, cocaine.”

The judge then proceeded to enumerate the various rights that the defendant would be giving up if he agreed to the disposition as proposed. In the ensuing colloquy, the defendant indicated by stating “Yes” or “Yes, sir” that he understood, among other things, that he was giving up his right to a trial on the charge against him, his right to have a jury decide his case, and his right to cross-examine the Commonwealth's witnesses. Then, prior to accepting the defendant's plea, the judge advised the defendant of the immigration consequences of his guilty plea:

“You should also understand that if you are not a citizen of the United States, the acceptance by this Court of your plea of guilty may have the consequences of your deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Most likely the offense to which you are pleading guilty is under a federal law one that presumptively mandates removal from the United States. [Inaudible.] And if federal officials decide to seek removal, then it will be inevitable that this disposition would result in your deportation, exclusion from admission, or denial of naturalization pursuant to the laws of the United States.”

The judge asked whether the defendant understood the warning, and the defendant replied “Yes, sir.”

The colloquy continued with the judge informing the defendant that should he agree to the facts as recited by the prosecutor, he would find the defendant guilty. The judge said:

“Let me explain to you (inaudible). If you agree as to the facts that I've heard (inaudible) I will find you guilty. I will sentence you to probation for a period of two years. During that probationary period you will report to the probation department, and if you do not violate the law and you not consume any illegal drugs, including marijuana [sic]. You are to submit to testing by the direction of the probation department. There are fees (inaudible) and there's a monthly $65 probation supervision fee.

“Now, if you successfully complete the two years of probation, you won't serve any jail time. But if you violate your probation, you will be brought back, and there's no trial. It's just a hearing in front of the judge, and if the judge decides [you] violate[d] your probation, the judge then can immediately impose any sentence from zero to two and a half years in the house of correction, and at that state (inaudible).”

The judge again asked the defendant whether he understood, and the defendant again responded, “Yes, sir.” Notwithstanding the defendant's affirmative response, the judge reminded the defendant that the disposition he had described was not the same as the one recommended by defense counsel. The judge then suggested the defendant confer with his lawyer. After a pause in the proceedings, defense counsel reported that the defendant agreed to the disposition. The judge then asked the defendant if he needed more time to speak to his lawyer, to which the defendant replied, “No, sir.”

Thereafter, the judge asked a final question “for the record.” He asked the defendant, “Is it your decision to agree to this disposition that I've explained to you?” The defendant replied, “Yes, sir,” after which the judge stated, “I accept the plea then.” At the end of the colloquy, the clerk of court said “the court having found sufficient facts to find you guilty enters a finding of guilty and places you on probation two years until September 20, 2018.” The clerk recorded a plea of guilty on the criminal docket sheet,⁶ although there is no evidence the defendant ever saw it.⁷

Approximately one year later, the defendant filed the first of the two motions at issue in this appeal. He submitted an affidavit stating that he was born in the Dominican Republic and came to the United States in 2010, when he was twenty-eight years old, to live with his then wife who was a United States citizen. The two subsequently divorced and by the time the defendant committed the offense of distribution of cocaine, he was in a relationship with a woman to whom he became engaged in 2016, and with whom he now has a child. In his affidavit, the defendant claims that when he hired his attorney he told him to “do what you have to do to not get me deported.” He further stated that his English is poor and he relied on his codefendant, see note 2, supra, to translate for him. He claims that he was falsely reassured by his lawyer not to worry about deportation even after he was detained on one occasion upon his return to the United States from the Dominican Republic, where he was visiting his mother. He also claimed that his attorney never discussed any options to resolve his case even though he was willing to cooperate with the investigation. Finally, the defendant averred that he had plans to stay in the United States, to bring up his child, to start a business, and to bring his mother to live here. According to the defendant, he never would have made an admission of guilt if he understood the consequences of doing so.

As noted, the judge held an evidentiary hearing on the motion. At the beginning of the hearing, he made clear that the only issue he intended to address at the hearing was whether defense counsel had provided ineffective assistance of counsel. He stated:

“I am going to say at the outset, I reject utterly defendant's argument that the plea colloquy was inadequate[,] and I will not hear argument or evidence on that issue.

“If you wish to raise that issue, I will give you a response right now that if you are relying on that for your motion, it's denied without further hearing.

“However, the first part where the defendant argues that the plea counsel did not give him adequate advice is why I had this matter scheduled for a hearing, and I will address that issue. If you stray into the other issue, I will cut you off and terminate the hearing. You understand?”

Thereafter, both plea counsel and the defendant testified. Plea counsel did not remember all the facts pertaining to his representation of the defendant. For example, he recalled that the defendant was not a United States citizen, but did not remember the defendant's immigration status. He testified that it was his usual practice to go through all potential consequences and possible resolutions for cases with his clients and that he had spent “quite a bit of time” discussing with the defendant the fact that “given the charge” he would be “subject to deportation.” In addition, plea counsel explained that the codefendant, see note 2, supra, was represented by a public defender, who had sought advice from the Committee for Public Counsel Services (CPCS) regarding whether any plea would have immigration consequences, and that, on the day of the change of plea hearing, he and the public defender explained to both defendants the advice that they had received from CPCS.

The defendant's testimony was consistent with the statements he made in his affidavit. He claimed that his lawyer had not advised him that his plea could result in mandatory deportation, exclusion from readmission into the United States and prevent him from becoming a United States citizen. He said that he was not aware of why he was in court on the day of the plea hearing, and that he did not learn of the immigration consequences of his plea until after the colloquy with the judge.

The defendant's motion was denied in a written memorandum of decision and order. The judge wrote:

“The Court finds Defendant's testimony in support of this motion utterly lacking in credibility. I do not credit an iota of Defendant's testimony as to any immigration advice given by Counsel at the time of the plea(s), or any lack thereof. I do not credit Defendant's assertions that he had only limited conversations with Plea Counsel as to his immigration status and the consequences of the plea, and in fact find that he had lengthy meetings with his then attorney and that the consequences of the plea were discussed in those meetings. Defendant seems to have forgotten the acknowledgments he signed at the time of the pleas -- with the attested help of a certified Court interpreter -- that he understood that the pleas could result in deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. He also ignores his attorney's certifications at that time that the attorney explained those matters to Defendant so as to enable him to tender his plea[ ] of guilty knowingly, intelligently and voluntarily. He also seems not to remember the immigration warning this judge clearly gave him. If it was indeed important to him at the time, he would possibly remember those things. After 14 months I do not fault him for not remembering things, but I do not credit his sworn testimony now as having any persuasive weight on the issue of whether his attorney did not give him competent immigration advice then.

“Moreover I find that Defendant's disposition as a result of the pleas was highly favorable -- a guilty finding with straight probation on a crime involving cocaine distribution. He knew fully what he was doing when he accepted a guilty finding in this case․ Defendant pled guilty on a charge fully supported in the detailed police report in the case․ I therefore conclude that even if there had been any arguably inadequate immigration advice by counsel -- which I do not find -- it did not prejudice Defendant in any way.

․

“The other grounds asserted in the motion were utterly without support. Defendant asserts that it was a violation of [G. L. c. 278, § 29D] for this Court to have phrased the immigration warning premised on the Court's acceptance of Defendant's ‘guilty plea’ instead of being premised on the Court's acceptance of Defendant's ‘admission to sufficient facts[.’] Defendant did submit an ‘admission to sufficient facts[,’] but the Court rejected it orally and in writing. Instead, the Court (as appears in the Docket and the transcript) having rejected the Defendant's proffered admission to sufficient facts proposed a disposition pursuant to which Defendant would actually admit ‘that [he] distributed a class B substance, cocaine’ (not that there were sufficient facts to prove it). Defendant swore under oath that he understood that. The disposition proposed by the Court was a Guilty finding, not a continuance without a finding after a finding of sufficient facts[,] which is what the Defendant had originally requested. Defendant unequivocally accepted the disposition proposed by the Court.

“In those circumstances to suggest that the Court should have phrased the [G. L. c. 278, § 29D] warning in the form of the Court accepting the rejected admission to sufficient facts is beyond credulity.”

Soon thereafter, the defendant filed the second motion at issue in this appeal. That motion is essentially identical to the first motion with the exception that the defendant also claimed that the plea judge was biased. The second motion was heard by a different judge, who summarily denied it without a hearing and without making any findings or rulings of law. The defendant then filed a motion requesting written findings. In denying the motion for findings (an order not before us), the judge wrote in a margin endorsement:

“The Defendant appealed [the earlier judge's] decision on the Motion to Vacate Guilty Plea. That Decision is currently under appeal. I will not re-hear this issue before the Appeals Court makes a final decision on the current appeal.”

Discussion. 1. The defendant's first motion. A motion to withdraw a guilty plea or an admission to sufficient facts 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). “Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. A motion for a new trial is thus committed to the sound discretion of the judge.” Id., quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). “We review [a judge's decision on] a motion to withdraw a guilty plea to determine whether the judge committed an abuse of that discretion or a significant error of law.” DeJesus, supra. “We accept the judge's findings of fact if supported by the evidence, because the judge who heard the witnesses testify is the final arbiter on matters of credibility” (quotation omitted). Id.

a. Adequacy of the immigration warning. It is undisputed that the immigration warning given by the judge referred to the immigration consequences of a guilty plea, not an admission to sufficient facts. The defendant contends this was a violation of G. L. c. 278, § 29D, which provides:

“The court shall not accept a plea of guilty, a plea of nolo contendere, or an admission to sufficient facts from any defendant in any criminal proceeding unless the court advises such defendant of the following: ‘If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’ ”

Id. See Commonwealth v. Marques, 84 Mass. App. Ct. 203, 206 (2013) (holding that warning in that case “did not comport with the amended statutory language; among other things, it did not include the required reference to disposition by way of an admission to sufficient facts” [footnote omitted] ). The statute further provides mandatory relief for a defendant who does not receive a proper warning:

“If the court fails so to advise the defendant, and he later at any time shows that his plea and conviction may have or has had one of the enumerated consequences, ․ the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty, plea of nolo contendere, or admission of sufficient facts, and enter a plea of not guilty.”

G. L. c. 278, § 29D. Neither motion judge had the benefit of the Supreme Judicial Court's decision in Commonwealth v. Petit-Homme, 482 Mass. 775 (2019), which was decided during the pendency of this appeal. There the court observed that, “[r]ecognizing the specificity and ‘unique purpose’ of this legislative mandate to deliver defined spoken warnings or else administer postconviction relief, Commonwealth v. Villalobos, 437 Mass. 797, 800 (2002), our interpretative approach has been relatively literal and strict.” Petit-Homme, supra at 783. Moreover, the Supreme Judicial Court held that § 29D's language makes a new trial mandatory when a judge fails to give orally any aspect of the § 29D warning applicable to the defendant's circumstance, regardless of the defendant's subjective knowledge of the consequences. Id. (“Accordingly, the defendant need not demonstrate lack of previous understanding in order to secure § 29D relief, and, where the defendant has not been warned about the immigration consequence that he or she later seeks to avoid through § 29D relief, evidence of the defendant's actual knowledge of that consequence at the time of the plea will not prevent § 29D relief”).

On the basis of this, the defendant argues that the immigration warning was inadequate and he is entitled to a new trial. By contrast, the Commonwealth argues that the defendant did plead guilty and, as a result, the warning was sufficient. Ordinarily, of course, a plea of guilty occurs only where a defendant utters the words “guilty” or “I plead guilty.” Under long-settled precedent, where that does not happen, we may conclude a defendant pleaded guilty only where circumstances “compel the conclusion that the defendant did enter a plea of guilty.” Commonwealth v. Cavanaugh, 12 Mass. App. Ct. 543, 545 (1981). The only times we have ever found such circumstances were where a defendant said “yes” in response to a question from the judge whether he was pleading guilty.

In this case, ambiguity was created by the judge's asking the defendant whether he agreed to “this disposition” -- perhaps meaning a finding of guilty and perhaps meaning a plea of guilty. The problem presented in this case can be avoided in the future by plea judges following the mandate of Mass. R. Crim. P. 12, as amended, 482 Mass. 1499 (2019), and ensuring that defendants specifically state that they are tendering a plea of guilty, a course we have urged in the past: “We urge judges to follow Mass. R. Crim. P. 12 ․ in accepting guilty pleas and to follow the established practice of having the session clerk read the complaint or indictment to the defendant and ask him how he pleads. The defendant must utter the appropriate words before the guilty plea is accepted.” Cavanaugh, 12 Mass. App. Ct. at 545.

Nonetheless, we need not resolve the question whether the defendant in this case pleaded guilty, merely admitted to sufficient facts, or did something else. That is because it is clear that he agreed to the “disposition” proposed by the judge, and he was warned that “it will be inevitable that this disposition would result in your deportation, exclusion from admission, or denial of naturalization pursuant to the laws of the United States.” To be sure, these are not the literal words of the statute, but the court in Petit-Homme said only that we must be “relatively literal and strict,” Petit-Homme, 482 Mass. at 783, and on the facts of this case, where the defendant was given an adequate warning, we think it would elevate form over substance to require more.

b. Ineffective assistance of counsel. A defendant seeking to withdraw his plea on the basis of ineffective assistance of counsel has the burden of demonstrating that there was “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Britto, 433 Mass. 596, 601 (2001), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant also must show that “the consequence of counsel's serious incompetency [was] prejudicial.” Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011). Where, as here, the ineffective assistance of counsel claim is based on an allegation that counsel provided inaccurate advice regarding the immigration consequences of a plea, the prejudice prong requires the defendant to “establish[ ] 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.’ ” Id. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).

In his written decision, the judge found that plea counsel's performance was not deficient. He explicitly rejected as not credible the defendant's claim that plea counsel had not explained the immigration consequences of changing his plea. The judge, of course, was entitled to make this credibility finding. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998), S.C., 440 Mass. 1001 (2003); Commonwealth v. Gould, 413 Mass. 707, 716 n.9 (1992). Because that finding was not clearly erroneous, the defendant did not meet his burden of showing that counsel's representation fell measurably below that which might be expected from an ordinary fallible lawyer. We therefore need not address the question of whether the defendant was prejudiced. Accordingly, the order denying the defendant's motion to withdraw his guilty plea is affirmed.

2. The second motion. The defendant's second motion requested, as alternative relief, a rehearing of the first motion on the ground that the plea judge exhibited bias.⁸ The defendant relies on certain statements made by the judge during the evidentiary hearing to support his claim. He points to the judge's preliminary remarks in which he stated that he “reject[ed] utterly” the defendant's arguments regarding the sufficiency of the plea colloquy. The defendant argues that the judge improperly threatened to terminate the hearing on the defendant's ineffective assistance claim if his counsel addressed this issue. While the judge's statements were strongly worded, they do not demonstrate bias. To the extent that the judge's language may reflect forceful disagreement or even outright annoyance with the defendant's position in the matter before him, this does not constitute impermissible extrajudicial bias. See Commonwealth v. Eddington, 71 Mass. App. Ct. 138, 145-146 (2008) (“Even if a judge had formed a negative opinion of the defendant because of the judge's prior exposure to the case, this would not constitute prohibited bias ․ [as] the judge's view of the defendant was not derived from an extrajudicial source”).

The defendant also contends that bias appears in the judge's credibility determinations and findings of fact, in which he accepted plea counsel's testimony and rejected the defendant's testimony. We find no merit in this contention. The judge was exercising his prerogative to assess the credibility of witnesses, see DeJesus, 468 Mass. at 178, and his consideration of the witnesses' testimony and his factual findings do not display bias. We therefore conclude that a rehearing on the defendant's motion is not warranted.

The order entered January 2, 2018, denying the defendant's motion to vacate admission to sufficient facts is affirmed. The order entered April 4, 2019, denying the defendant's second motion to vacate admission to sufficient facts or, in the alternative, for rehearing on motion to vacate admission to sufficient facts is affirmed.

So ordered.

FOOTNOTES

2.   The second motion also was framed as a motion to “vacate admission to sufficient facts.”

3.   The defendant and another member of the criminal enterprise, Frances Parrera, were both arrested on January 7, 2015. Although the two were charged in separate complaints, they appeared in court together at the change of plea hearing and were treated as codefendants. However, after the prosecutor summarized the evidence supporting the charges against both defendants, the two were separated and the hearing proceeded with only the defendant present.

4.   See Dist./Mun. Cts. R. Crim. P. 4 (c). The form is entitled “Tender of Plea or Admission and Waiver of Rights.”

5.   In the box captioned “Defendant's recommendation(s),” the following handwritten notation appears: “CWOF 2 yrs. No drugs/screens. $65 p.s.f.” The box captioned “Prosecutor's recommendation(s)” contains the following handwritten notation: “G. 18 months HOC ss for 2 yrs. Drug eval & F/U. No drugs screens.”

6.   On the criminal docket, in the box captioned “Disposition Method,” a handwritten “x” appears in the box indicating “Guilty Plea ․ accepted after colloquy and 278 § 29D warning.” In the box captioned “Finding,” an “x” appears next to the option for “Guilty.”

7.   We note that, at the bottom of the front page of the green sheet under the caption “DEFENDANT'S DECISION WHEN COURT REJECTS DEFENDANT'S RECOMMENDATION,” the defendant signified his acceptance of the judge's proposed disposition by checking the box next to the statement “Defendant ACCEPTS judge's disposition set forth above.” The defendant signed his name in a box directly below that statement. The defendant's signature also appears on the back side of the form on which the immigration warning is set out in full. The signature of the interpreter who translated for the defendant at the hearing and translated the form appears on the same line.

8.   We recognize that the second judge did not rule on the merits of the defendant's motion. However, because the issue has been briefed and the claim of bias is based entirely on statements made by the plea judge during the evidentiary hearing, we are in as good a position as the second judge to review the argument. We therefore exercise our discretion and consider the merits of the appeal from the second order denying the defendant's motion. See Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 3 (1987).