Skip to main content


Reset A A Font size: Print

Appeals Court of Massachusetts.



Decided: February 04, 2021

By the Court (Wolohojian, Henry & Singh, JJ.1)


The defendant appeals from an order denying, without an evidentiary hearing, his motion to withdraw his guilty pleas and to vacate his convictions, and for a new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). In broad summary, he contends that the motion should have been allowed because plea counsel did not advise the defendant of the possible immigration consequences of his pleas and failed to advise him about (or to pursue) available defenses. We affirm.

The defendant was charged on April 11, 1994, with possessing marijuana, heroin, or cocaine with the intent to distribute within a school zone (count I), trafficking in cocaine (count II), two counts of possessing a class C substance (counts III and IV), and possessing a class D substance (marijuana) (count V). On December 5, 1994, the trafficking charge (count II) was partially nolle prossed by the Commonwealth to reduce it to possession with intent to distribute a class B substance. On March 7, 1995, count I was dismissed and the defendant pleaded guilty to the remaining charges.2

Nearly twenty-five years later, in 2019, the defendant filed the rule 30 (b) motion that is the subject of this appeal. The motion was accompanied by affidavits from the defendant and his current counsel. There was no affidavit from plea counsel, nor were any contemporaneous records or documents submitted apart from the docket. The defendant's affidavit stated that he could not remember plea counsel's name, and counsel averred that he could not determine who plea counsel had been. Counsel's affidavit did not state what efforts were made to identify and locate plea counsel. The docket reflects an attorney's name, but it is not entirely legible.

The defendant's affidavit also stated that, after immigrating to the United States from the Dominican Republic as a teenager in 1989, he became a lawful permanent resident residing in New York. He is employed as a dental assistant and has three children and a grandson. His convictions affect his ability to become a United States citizen and to remain a permanent legal resident, and they restrict his ability to travel outside the Unites States. When he was nineteen years old, and had no prior criminal record, a friend invited the defendant to visit him in Lynn to party with some girls for the weekend. While the defendant was staying at the friend's apartment, officers entered and searched it. Marijuana, crack cocaine, and other drugs were located; these became the subject of the charges against the defendant. The defendant claimed that he was unaware that his friend had contraband in the apartment other than “a couple joints” for personal use.

The defendant also averred that his court-appointed lawyer never discussed possible defenses or motions that could be offered against the charges; the defendant was not informed about the possibility of a motion to suppress or a motion to dismiss. Nor was he informed that his mere presence in the apartment was not enough to prove constructive possession. Instead, plea counsel told the defendant that he needed to plead guilty because he faced six years of imprisonment. Finally, the defendant averred that plea counsel never discussed the defendant's immigration status with him, nor did plea counsel inform the defendant of the potential immigration consequences of his pleas. The defendant stated that he would not have pleaded guilty had he known about those immigration consequences.

“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. Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). “We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion.” Lastowski, supra, quoting Sylvester, supra.

The defendant first argues that he was entitled to withdraw his pleas and to a new trial because he received ineffective assistance from plea counsel, who failed to advise the defendant of the immigration consequences of his pleas. Although the defendant recognizes that -- as a result of Commonwealth v. Sylvain, 466 Mass. 422, 423-424 (2013), and Commonwealth v. Mercado, 474 Mass. 80, 81-82 (2016) -- the Sixth Amendment to the United States Constitution right enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010), is retroactive only to April 24, 1996 (and thus does not extend back to the defendant's pleas in 1995), he asks that we go beyond the holdings of those cases to reach back to the date of his pleas. This we cannot do. See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003) (“we have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided”).

Even were the defendant entitled to the Padilla framework, the defendant has not shown that the judge abused his discretion in denying the defendant's motion to withdraw his pleas. In this context, the judge could consider that there was no corroboration (whether by plea counsel or contemporaneous records) for the assertions contained in the defendant's affidavit. The absence of any contemporaneous account of the facts is of particular importance in assessing whether the defendant had a viable defense to the charges. We note also that the defendant received a meaningful reduction in the most serious charges against him as a result of the pleas. See Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) (“the defendant has the burden of establishing 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” [quotation and citation omitted]).

The defendant next argues that plea counsel was ineffective for failing to advise him of potential defenses, and of failing to file a motion to suppress or a motion to dismiss. To begin with, we note that the docket suggests that a hearing on a motion to suppress was conducted on December 5, 1994. Apart from the defendant's affidavit, the credibility of which was diminished by the fact that he waited so long to bring the issues forward, there was no information to support the defendant's claim that there might have been viable defenses to the charges. The judge was not required to accept the assertions in the defendant's affidavit even where they were not contradicted. See Commonwealth v. Lys, 481 Mass. 1, 5 (2018) (motion judge need not accept statements in defendant's affidavit as true, even if uncontradicted).

For similar reasons, the defendant has failed to show that the judge abused his discretion in ruling on the motion without conducting an evidentiary hearing.3 “A judge may make the ruling based solely on the affidavits and 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.’ ” Sylvester, 476 Mass. at 5, quoting Commonwealth v. Scott, 467 Mass. 336, 344 (2014). Here, as we have explained above, there was no evidentiary showing other than the docket (which did not shed light on the defendant's factual assertions) and the defendant's affidavit, the force of which was diminished by the passage of time and the absence of corroboration.

Order denying motion to vacate convictions affirmed.


2.   Although the docket does not directly reflect the pleas, the parties do not dispute that the defendant pleaded guilty.

3.   The judge conducted a nonevidentiary hearing on the motion.

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard