COMMONWEALTH v. MENDEZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On August 28, 2018, the defendant, through a plea agreement, admitted to sufficient facts for the charges of assault and battery on a family or household member, pursuant to G. L. c. 265, § 13M (a), and violation of an abuse prevention order, pursuant to G. L. c. 209A, § 7. His case was continued without a finding for one year, with conditions that he complete a certified batterer's program, abide by the c. 209A order, and refrain from abusing the victim. The defendant subsequently moved for a new trial, arguing that his counsel was constitutionally ineffective for failing to properly advise him of the immigration consequences of his plea. His motion was denied, and the defendant now appeals. We vacate the order denying the defendant's motion and remand the case for further factual findings.

Background.² 1. Plea. The defendant's assault and battery charge arose from a dispute with his wife, where he pushed her, causing her to fall and sustain a cut on her right elbow. Subsequent to that charge and the imposition of a c. 209A abuse prevention order, the defendant's uncle called the victim to coordinate when the defendant could retrieve his belongings from their residence. Although the defendant was at the police department coordinating with the police about obtaining his belongings at the time the telephone call was made, he was also charged with violating the abuse prevention order as a result of the third-party communication. The defendant ultimately admitted to sufficient facts for each charge, and as part of a plea, received a continuance without a finding for one year. The defendant successfully completed probation, and the charges against him were dismissed.

2. Motion for a new trial. On June 18, 2019, the defendant filed a motion for a new trial, arguing that his plea counsel was constitutionally ineffective for failing to advise him that admitting to sufficient facts for the purpose of receiving a continuance without a finding constituted a conviction under Federal law, and that his plea was not voluntary and knowing. In support of his motion, the defendant submitted two affidavits: his own and that of his motion counsel (who was not plea counsel). The defendant's affidavit stated that he was born in Peru, but has been a lawful permanent resident of the United States since he entered the country when he was eleven years old. It further stated that he retained his own private immigration attorney to discuss whether his case would have any negative consequences on his immigration status. He attested in his affidavit that his immigration attorney informed him that he would need to have the charges against him dismissed in order to avoid deportation. The defendant further averred that he relayed this information to his court-appointed defense counsel, who advised him to accept a continuance without a finding because it would ultimately lead to a dismissal and protect his immigration status. Based on this advice, the defendant admitted to sufficient facts in order to receive a continuance without a finding for one year on both charges. Later, however, the defendant learned that his plea in fact made him subject to deportation.³

Motion counsel's affidavit stated that he had attempted to contact the defendant's plea counsel several times without success. Although motion counsel was able to contact plea counsel on one occasion to discuss transferring the defendant's files, plea counsel never sent the defendant's files to motion counsel, and did not answer or return any of motion counsel's follow-up telephone calls.

Following a nonevidentiary hearing, the motion judge, who was also the plea judge, denied the defendant's motion for a new trial in a margin order. She did not make any findings of fact, but instead explained only that “[a] full and complete colloquy about immigration consequences was done.”

Discussion. A motion to withdraw an admission to sufficient facts is treated as a motion for a new trial, and we review the denial of such a motion for a significant error of law or other abuse of discretion. Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Although we extend “substantial deference” to a motion judge who was also the plea judge, Commonwealth v. Lys, 481 Mass. 1, 4 (2018), that judge's discretion “is not boundless and absolute.” Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting Commonwealth v. Genius, 402 Mass. 711, 714 (1988). “While the defendant bears the burden of proof on a motion for a new trial, and the motion judge is entitled to discredit affidavits, ․ the motion judge must make ‘such findings of fact as are necessary to resolve the defendant's allegations of error of law.’ ” Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451 (2015), quoting Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

Where the basis for a motion for a new trial is ineffective assistance of counsel, “the defendant bears the burden of showing that (1) there has been ‘behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer’ and (2) that ‘it has likely deprived the defendant of an otherwise available substantial ground of defence.’ ” Commonwealth v. Sylvain, 466 Mass. 422, 437 (2013), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Satisfying this standard necessarily satisfies the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).” DeJesus, 468 Mass. at 178-179. We conclude that a remand is required here as the fact finding and legal analysis on each prong of the ineffective assistance of counsel test is incomplete.

1. Performance. For plea counsel to be constitutionally effective, he or she must accurately advise the defendant “about a guilty plea's ‘truly clear’ deportation consequences.” Lys, 481 Mass. at 5, quoting Padilla v. Kentucky, 559 U.S. 356, 369, 374 (2010). See Sylvain, 466 Mass. at 424 (applying same rule under art. 12 of Massachusetts Declaration of Rights). The provision of immigration warnings during a plea colloquy “is not an adequate substitute for defense counsel's professional obligation to advise [his or] her client of the likelihood of specific and dire immigration consequences that might arise from such a plea.” Commonwealth v. Clarke, 460 Mass. 30, 48 n.20 (2011). Thus, we agree with the defendant that it was error for the judge to reject his claim of ineffective assistance on the basis that such warnings were given during the plea colloquy.

Because the judge's denial of the defendant's motion rested on her impression that immigration warnings in a plea colloquy could cure potentially deficient advice by counsel, she did not make any factual findings addressing what plea counsel had advised the defendant regarding the immigration consequences of his plea. Such findings are necessary to resolve the defendant's claim that his plea counsel did not correctly advise him about the effect under Federal immigration law of admitting to sufficient facts for the purpose of receiving a continuance without a finding.

If plea counsel gave the defendant the advice he describes, it was incorrect. Under Federal immigration law, “an admission to sufficient facts followed by a continuance without a finding now constitutes a ‘conviction’ whenever the terms of the continuance include any ‘restraint on the alien's liberty,’ notwithstanding the fact that the underlying charge has been or will be dismissed.” Commonwealth v. Villalobos, 437 Mass. 797, 803 (2002), quoting 8 U.S.C. § 1101(a)(48)(A) (2000). Further, the immigration consequences of a conviction for the charges against the defendant were truly clear: 8 U.S.C. § 1227(a)(2)(E)(i)-(ii) (2000) explicitly provides that a conviction for a crime of domestic violence or a violation of a protection order renders an alien deportable.

As described above, to establish that his counsel provided ineffective advice concerning the immigration consequences of his plea, the defendant submitted his own affidavit. His affidavit stated that he was advised by his immigration attorney that his immigration status would be at risk unless the charges against him were dismissed; he relayed this advice to his plea counsel; and his plea counsel, relying on that advice, advised him to admit to sufficient facts to receive a continuance without a finding, which would ultimately lead to a dismissal and protect his immigration status.

To begin with, it would not be enough for plea counsel to simply rely on the defendant's account of his immigration attorney's advice without doing more. See, e.g., Henry, 88 Mass. App. Ct. at 454 (practice of advising clients to consult with immigration attorney regarding immigration consequences of plea is insufficient); Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 441-444 (2014) (attorney's failure to conduct legal research to determine whether crimes pleaded to were deportable offenses was constitutionally deficient, despite advising client to seek advice of immigration attorney).

Further, the defendant's affidavit was not the only evidence of plea counsel's reliance on the defendant's description of the immigration attorney's advice. The defendant's assertions are consistent with plea counsel's statements during the plea hearing. When the plea judge asked counsel whether he had reviewed with the defendant the elements of the crimes, the maximum penalties, the possible defenses, and the potential immigration consequences of the pleas, plea counsel stated, “I have, Your Honor. I -- and just on the immigration consequence, Mr. Mendez is a permanent resident, and he indicated to me that he has private immigration counsel and has discussed the consequences with that.”

In addition, although the defendant did not submit an affidavit from plea counsel, the defendant's motion counsel submitted an affidavit attesting that he had attempted to contact plea counsel several times without success. Motion counsel's affidavit states that he spoke to plea counsel on one occasion about transferring the defendant's files. However, plea counsel did not answer or return any of motion counsel's additional telephone calls. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (defendant may defeat adverse inference from absence of plea counsel affidavit by filing “affidavits attesting to plea counsel's lack of cooperation”).

Nonetheless, it is not the province of this court to make findings of fact, and, as the judge did not make any findings of fact with respect to what advice the defendant received from plea counsel -- a finding necessary to determine whether plea counsel fulfilled his affirmative duty to accurately advise the defendant about the immigration consequences of his plea -- the proper disposition of this matter is to remand it to the trial court so that such a finding can be made.⁴

2. Prejudice. In order to obtain relief, the defendant must also show that he was prejudiced by plea counsel's constitutionally deficient advice. Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246 (2015). The defendant must demonstrate 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.” Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). He must “provide an affidavit to that effect, and in addition, he must convince the court that a decision to reject the plea bargain would have been rational under the circumstances” (quotations omitted). DeJesus, 468 Mass. at 183, quoting Clarke, supra. The defendant may prove that his decision to reject the plea was rational by showing

“that (1) he had an ‘available, substantial ground of defence’ ․ 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” (citation omitted).

Clarke, supra at 47-48. If the defendant is able to establish at least one of the three Clarke factors, “then the judge must move to the second step and evaluate 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.” Lys, 481 Mass. at 7-8.

While the defendant satisfied the “baseline requirement for raising an issue of prejudice” by averring in his affidavit that he would have rejected the plea and proceeded to trial if he had been advised that his admission to sufficient facts for each charge subjected him to deportation, Lys, 481 Mass. at 7, the judge did not make any findings of fact relating to the question whether this decision would have been rational under the circumstances of this case. Compare id. at 8.

In assessing whether a defendant's decision to reject a plea is rational, “[e]ach case will, of course, stand on its own facts.” Clarke, 460 Mass. at 48 n.19. Where immigration consequences are involved, a judge “must take into account the particular circumstances informing the defendant's desire to remain in the United States.” DeJesus, 468 Mass. at 184, quoting People v. Picca, 97 A.D.3d 170, 183-184 (N.Y. 2012). A noncitizen defendant “confronts a very different calculus than that confronting a United States citizen,” and his “right to remain in the United States may be more important to [him] than any jail sentence.” DeJesus, supra, quoting Padilla, 559 U.S. at 368. Accordingly, “even a small chance of acquittal may be sufficient to show that it was reasonably probable that a person in the position of the defendant would have rejected the plea and insisted on going to trial.” Commonwealth v. Lavrinenko, 473 Mass. 42, 63 (2015).

The defendant, who was twenty-five years old at the time of the motion, stated in his affidavit that he has lived in Massachusetts since he was eleven years old; he graduated high school and obtained his associate's degree in Massachusetts; and he has maintained steady full-time employment in the Commonwealth. He argues that he would have been able to pursue several potential defenses at trial. First, he argues that he could have asserted self-defense on the charge of assault and battery on a family or household member because he only pushed the victim after she “came up close to him.” Second, he argues that because the violation of the c. 209A abuse prevention order occurred through third-party contact, he could have defended that charge by arguing that his uncle contacted the victim unilaterally, without direction from the defendant. While we cannot say whether such defenses would have been successful at trial without further factual development, they may have offered the defendant a “small chance of acquittal.” Lavrinenko, 473 Mass. at 63.

In DeJesus, the court found the presence of “special circumstances” showing that the defendant would have placed particular weight on the immigration consequences of his plea where the defendant “had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area.” DeJesus, 468 Mass. at 183-184. Here, from the record, “it is impossible to discern ․ whether the judge disbelieved the defendant's affidavits as they pertained to the special circumstances analysis or whether [she] decided that the defendant did not aver any facts that, even if believed, would qualify as special circumstances.” Lys, 481 Mass. at 8. Nor does it appear that the judge considered the defendant's potential defenses or determined whether there was “a reasonable probability that a reasonable person in the circumstances of the defendant would have chosen to go to trial” if he had been accurately advised about the immigration consequences of his plea.⁵ Lavrinenko, 473 Mass. at 55.

“[W]ithout findings of fact that address the defendant's specific contentions ․ ‘it is not possible for us to say with any certainty whether the defendant's affidavit is merely self-serving or whether he was sufficiently prejudiced to justify vacating his guilty plea and ordering a new trial.’ ” Henry, 88 Mass. App. Ct. at 457, quoting Sylvain, 466 Mass. at 439. For this reason, as well, a remand for factual findings is required. Accordingly, we vacate the order denying the defendant's motion for a new trial, and remand the case to the District Court with instructions to make further findings relating to the issues of performance by plea counsel and any prejudice arising therefrom and, if necessary, to hold an evidentiary hearing on the defendant's motion for such purposes.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   Because the motion judge did not make any findings, we summarize the relevant facts as presented by the defendant at the hearing on his motion for a new trial and in his supporting affidavits.

3.   As of October 2020, the Federal authorities had not made any effort to initiate removal proceedings against the defendant.

4.   The judge may, of course, hold any additional proceedings she deems necessary in order to make that finding, including an evidentiary hearing should she find it warranted.

5.   In making this determination, a judge must consider the totality of the circumstances, including whether the immigration consequences of the plea are, “from the defendant's perspective, similarly dire” to the consequences of a conviction after trial. Lys, 481 Mass. at 11, quoting Lee v. United States, 137 S. Ct. 1958, 1966 (2017).