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Appeals Court of Massachusetts.



Decided: April 27, 2021

By the Court (Green, C.J., Desmond & Lemire, JJ.2)


The defendant, Byron Solis, appeals from the order denying his second motion to vacate admission to sufficient facts. He argues that his plea counsel rendered ineffective assistance by failing to file certain pretrial motions and by providing incomplete advice regarding the immigration consequences of his plea. We affirm.

Background. In 2001, the defendant was charged with disturbing the peace and malicious destruction of property over $250. Later that same year, the defendant admitted to sufficient facts on both counts and the case was continued without a guilty finding. Both charges were dismissed following the defendant's successful completion of one year of unsupervised probation in 2002.

In 2017, the defendant moved to withdraw his plea based on his plea counsel's failure to advise the defendant that he would be subject to mandatory deportation based on his admission of sufficient facts on the offense of malicious destruction of property.3 The defendant further argued that if he was properly advised of these immigration consequences, he would have either negotiated a different plea or presented a defense at trial that he lacked the requisite intent to commit the offense of malicious destruction of property due to his intoxication. A District Court judge, who was the plea judge, denied the motion without a hearing and subsequently issued written findings of facts and rulings of law to supplement that decision. A different panel of this court affirmed the order. See Commonwealth v. Solis, 92 Mass. App. Ct. 1127 (2018).

In 2019, the defendant filed his second motion to vacate his admission to sufficient facts. In support of his second motion, the defendant presented a police report describing the circumstances of his arrest. As set forth in that report, the police responded to a call for a disturbance at a residence. When the police arrived, they spoke with the owner of the house who stated that five minutes earlier, the men who rented the first-floor apartment were inside “drinking, yelling and throwing empty beer bottles out the window.” The police entered the first-floor apartment and found the defendant and another man inside. Both occupants denied throwing bottles out the window. One officer then went outside the house where he observed three broken Formosa brand beer bottles on the ground and a vehicle with a smashed windshield parked under the window. The officer then observed several empty Formosa brand beer bottles inside the apartment. As a result, both the defendant and the other man were placed under arrest.

Relying on the information in the police report, the defendant argued in his second motion that his plea counsel was ineffective for failing to file viable motions to dismiss and suppress. He also argued that his plea counsel rendered ineffective assistance by failing to advise him that the plea would deprive the defendant of a defense to deportation. The same District Court judge denied the motion without a hearing by margin endorsement, explaining that “[u]pon review of the additional information, the original decision stands.”

Discussion. A motion to withdraw a plea is treated as a motion for a new trial. See Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451 (2015). See also Dunbrack v. Commonwealth, 398 Mass. 502, 504 (1986) (“The appropriate method for attacking the lawfulness of the admission to sufficient facts and the sentence imposed is a postconviction motion for new trial pursuant to rule 30 (b)”). “A judge may make the ruling [on such a motion] 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.’ ” Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016).

Generally, we review the denial of a motion to withdraw a plea for a significant error of law or other abuse of discretion. See Commonwealth v. Cano, 87 Mass. App. Ct. 238, 240 (2015). However, we review any waived claim “solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice.” Commonwealth v. Russell, 439 Mass. 340, 345 (2003). The rulings of a motion judge who also served as the plea judge in the same case are afforded particular deference. See Lastowski, 478 Mass. at 575.

As an initial matter, the defendant's arguments premised on the police report and his newly asserted grounds for prejudice based on plea counsel's allegedly deficient immigration advice are waived because the defendant failed to raise them in his earlier motion brought under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Roberts, 472 Mass. 355, 359 (2015). Contrary to the defendant's assertion, the police report does not constitute newly discovered evidence. Prior appellate counsel's representation in an affidavit that she is unsure whether she requested the police report falls short of demonstrating that the report was not reasonably discoverable at the time of the earlier motion.4 This is particularly so where the report was later produced for the defendant's present counsel. See Commonwealth v. Ellis, 475 Mass. 459, 472 (2016) (evidence is newly discovered if unknown to defendant and not reasonably discoverable at earlier motion for new trial); Commonwealth v. Pike, 431 Mass. 212, 218 (2000) (defendant must show evidence was not discoverable through reasonable diligence at time of presentation of earlier new trial motion). However, even if the arguments here were not waived because the motion judge exercised her discretion to consider them, we are satisfied that the judge did not abuse her discretion or otherwise commit a significant error of law in denying the motion.

The defendant claims that his plea counsel was ineffective for failing to file viable pretrial motions and for providing him with incomplete immigration advice regarding his plea. To establish ineffective assistance of counsel, the defendant must show that his plea counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

1. Pretrial motions. With respect to his ineffective assistance of counsel claim premised on the failure to file a motion to dismiss, the defendant has not shown that such a motion would have been successful. A criminal complaint for malicious destruction of property over $250 must include information to support probable cause that “the defendant injured or destroyed the personal property ․ of another; the defendant did so wilfully; the defendant did so with malice; [and] the value of the property so injured or destroyed exceeded $250.” Commonwealth v. Deberry, 441 Mass. 211, 215 n.7 (2004). See Commonwealth v. Humberto H., 466 Mass. 562, 565-566 (2013) (“The complaint application must include information to support probable cause as to each essential element of the offense”). The police report easily establishes probable cause to believe that the defendant “smashed” the windshield of a vehicle owned by another person and a reasonable inference could be drawn that the cost of the damage exceeded $250. Cf. Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003) (jury may apply common sense to determine if valuation of vehicle was over $250). As to the requirements that the defendant acted willfully and with malice, matters of intent are more properly resolved by a fact finder at trial and not a judge acting on a motion to dismiss. See Commonwealth v. Bell, 83 Mass. App. Ct. 61, 64 (2013). Here, the requisite intent could be inferred from the information that the defendant was yelling and at least three beer bottles were thrown from his apartment window, striking a vehicle parked below. See Commonwealth v. Riley, 73 Mass. App. Ct. 721, 731 (2009) (grand jury may infer intent from facts and circumstances presented in reaching probable cause determination). “That the inference may seem less than compelling does not render the evidence establishing probable cause insufficient.” Id. See Bell, supra (“Just as the ‘grand jury is not the appropriate forum for reconciling subtle gradations of offenses,’ neither is the application in support of a criminal complaint the proper forum for resolving such refinements” [citation omitted]). Because the defendant has not established that a motion to dismiss likely would have been allowed, he cannot demonstrate ineffective assistance on this basis. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) (“An ineffective assistance claim based on the failure to bring a motion requires the defendant to show that the motion would likely have been granted”).

The defendant's ineffective assistance claim premised on plea counsel's failure to move to suppress the beer bottles found inside the apartment fails for similar reasons. The motion judge was well within her discretion to reject the defendant's self-serving affidavit that the police officers did not seek permission to enter the apartment before they discovered the empty beer bottles inside.5 See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016) (motion judge may reject self-serving affidavit as not credible). Moreover, despite the defendant's invitation to do so, we also cannot draw the conclusion from the scant information in the police report that, for instance, the Commonwealth would have been unable to prove that the police officers, in the absence of a warrant, received consent prior to entering the first-floor apartment. See Commonwealth v. Comita, 441 Mass. 86, 94 (2004) (on motion for new trial, “where the evidence is not available and cannot be reconstructed, it is appropriate to require the defendant to establish that the Commonwealth could ․ not have met its burden on a timely filed motion to suppress [based on warrantless stop]”). On this record, we cannot say that the defendant would have prevailed on that motion. See Commonwealth v. Johnston, 467 Mass. 674, 688 (2014) (performance of counsel not ineffective where defendant did not show that he would have prevailed on motion to suppress).

2. Immigration advice. The defendant also argues that his plea counsel failed to provide him with adequate immigration advice under Padilla v. Kentucky, 559 U.S. 356 (2010). As a different panel of this court observed in the defendant's earlier appeal, this is not a case where the defendant received no immigration advice at all or where the immigration consequences of his plea were clear. See Solis, 92 Mass. App. Ct. 1127. See also Padilla, supra at 369 (recognizing “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain”). At the time of his plea, the defendant was subject to removal as a noncitizen in the country unlawfully. See 8 U.S.C. § 1227(a)(1) (2000). His argument then is premised on plea counsel's failure to advise him that if he accepted the plea, he would be ineligible in the future to apply to the Attorney General for cancellation of removal. See 8 U.S.C. § 1229b(b) (2000). However, at the time of the plea, the defendant was not eligible for such discretionary relief because he had not been in the country for ten years as required, and because he did not have a qualifying family member, such as a spouse or child who was a United States citizen or permanent resident.6

Even accepting the defendant's position that counsel was obligated to advise him of the effect of his plea on his possible eligibility to petition for cancellation of removal in the future, he has not shown prejudice. To establish prejudice, the defendant must demonstrate that he had a rational basis to reject the plea under the circumstances because: he had an available, substantial ground of defense that he would have pursued had he been correctly advised of the immigration consequences of his plea; a reasonable probability existed that a different plea bargain could have been negotiated at the time; or “special circumstances” exist that support the conclusion that the defendant “placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Commonwealth v. Clarke, 460 Mass. 30, 47–48 (2011). If the defendant establishes at least one of these three factors, then the judge must “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.” Commonwealth v. Lys, 481 Mass. 1, 7-8 (2018).

The defendant has failed to demonstrate the existence of substantial defense premised on the filing of a motion to dismiss or a motion to suppress for the same reasons described above. Moreover, the motion judge -- who was the plea judge -- did not abuse her discretion in declining to revisit her earlier conclusion that “it [was] not likely that a better plea bargain could have been negotiated,” beyond the “very favorable disposition” that the defendant actually received. See Lastowski, 478 Mass. at 577 (motion judge, who also was plea judge, in best position to determine likelihood of different disposition). Finally, the additional information presented in the defendant's affidavit -- including the conditions in Guatemala when he left, the circumstances surrounding his arrival in the United States, his employment at the time of the plea, and his use of his earnings over the years to help his siblings and repay his mother for the mortgage she took on her property to fund his entry into the United States -- falls short of demonstrating special circumstances. As the motion judge previously concluded, special circumstances did not exist where at the time of his plea, the defendant was subject to deportation by virtue of the manner in which he entered the country, was in his early twenties, had only been in the country for two and one-half years, had spent his entire childhood in Guatemala, did not have children, and was unmarried.7 Contrast Lys, 481 Mass. at 9-10 (special circumstances exist where defendant lived in United States since he was seven years old, had friends, family, and girlfriend here, could not locate family members in Haiti since earthquake, was not proficient in Creole or French, was diagnosed with a learning disability, and Haitian nationals were granted temporary protected status because of earthquake); Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015) (refugee status is special circumstance afforded particularly substantial weight in evaluating totality of circumstances); Commonwealth v. DeJesus, 468 Mass. 174, 184 (2014) (special circumstances exist where defendant lived in United States since he was eleven years old, had family in the area, and maintained steady employment). Therefore, we discern no abuse of discretion or error of law in the motion judge's decision.

The order denying the defendant's second motion to vacate admission to sufficient facts is affirmed.

So ordered.



3.   The defendant styled his motion as one to vacate his conviction. However, given that the charges were ultimately dismissed, the motion was construed as one to withdraw the defendant's plea on appeal. See Commonwealth v. Solis, 92 Mass. App. Ct. 1127 (2018).

4.   In prior appellate counsel's affidavit, she indicated that she did not receive a copy of the police report in this case, explaining that she is unsure whether she ever actually requested the report or instead whether she merely relied on her knowledge that the Lawrence Police Department as a matter of policy does not retain police reports that are more than seven years old. She also explained that the keeper of records for the Lawrence Police Department “has routinely, on many occasions, probably at least 50 different times over the years, given me a letter for Immigration purposes confirming ․ that the requested police report does not exist because it is beyond the retention period of their record keeping practices.” No such letter was produced here, nor was such a letter apparently in prior appellate counsel's file.

5.   The defendant submitted an affidavit in support of his earlier motion to withdraw his plea in which he explained, “As to what I remember of the facts of this case, there is not much.” He further reported that he was drunk at the time of the incident and that he does not remember throwing beer bottles out of the window onto the parked car.

6.   In order to be eligible for cancellation of removal, an applicant must show that: (1) he has been physically present in the United States for a continuous period of not less than ten years; (2) he has been of good moral character during that period; (3) he has not been convicted of certain enumerated crimes; and (4) his removal would result in exceptional and extremely unusual hardship to a qualifying family member. See 8 U.S.C. § 1229b(b)(1) (2000). See also Da Silva Neto v. Holder, 680 F.3d 25, 28 n.4 (1st Cir. 2012).

7.   Even if the defendant could have presented a substantial defense by probing the weaknesses in the Commonwealth's case at trial, considering the totality of the circumstances, there is not a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial for the same reasons stated above. While the defendant now asserts that he would have proceeded to trial if he was advised of the potential future immigration consequences of his plea, he had only recently entered the country, seemingly did not have family here other than possibly a girlfriend, and was concerned that continued court appearances would have caused him to lose his job.

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Docket No: 20-P-75

Decided: April 27, 2021

Court: Appeals Court of Massachusetts.

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