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Appeals Court of Massachusetts.



Decided: October 06, 2021

By the Court (Massing, Kinder & Neyman, JJ.1)


The defendant, Jose F. Salguero, appeals from orders issued by a District Court judge denying his motion to vacate convictions (seeking to withdraw his guilty pleas) and motion for reconsideration. He argues that (1) his motion to vacate raised a substantial issue of ineffective assistance of counsel such that the judge's denial of the motion without an evidentiary hearing constituted an abuse of discretion, and (2) his plea was neither voluntary nor intelligent due to plea counsel's incorrect advice. 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. See Padilla v. Kentucky, 559 U.S. 356 (2010) (Padilla). We discern no error of law or abuse of discretion in the judge's decision and thus affirm.

Background. On April 16, 2017, police officers responded to a report of an unwanted intoxicated male at a residence in Marlborough. The officers found the defendant hiding in the basement of the home. The defendant had an active abuse prevention order that required him to stay away from the victim, who was home and had called the police. The defendant was uncooperative to the extent that four officers, two paramedics, and several firefighters had to restrain him and secure him to an ambulance stretcher. As a result of this incident, the defendant was charged with one count of violating an abuse prevention order.

On May 30, 2017, police officers responded to the same residence where the same victim reported that the defendant had assaulted her. The defendant again arrived “unannounced and intoxicated,” argued with the victim, grabbed a large kitchen knife, placed the knife on her throat, and threatened to kill her. As a result of this second incident, the defendant was charged with one count of assault and battery by means of a dangerous weapon, one count of assault and battery on a family or household member, and one count of threat to commit a crime.2

On June 23, 2017, the defendant and his attorney executed a “Memorandum of Understanding” to memorialize that the attorney had advised the defendant of the following:

“1. [the docket from the first incident] - involves an Abuse Prevention Order violation a removable offense under Immigration law meaning a guilty plea will likely Result in Deportation[; and]

2. [the docket from the second incident] - involves multiple counts of violence including, threats and A&B on family, Household. Guiltys Likely Resulting in Removal or Deportation.”

On July 5, 2017, the defendant, represented by the same attorney, pleaded guilty to the charges from both incidents.

On August 5, 2019, the defendant filed a pro se “motion to vacate judgment” on the docket from the first incident. In his supporting affidavit, citing Padilla, he claimed that plea counsel failed to advise him of any consequences that could stem from a guilty plea that could “be used by the government against [his] immigration status.” The motion judge, who was also the plea judge, did not credit the defendant's affidavit, noted the absence of any affidavit from plea counsel, and denied the motion because “[n]o substantial issue has been presented.”

On November 6, 2019, the defendant, represented by new counsel, filed through counsel a new “motion to vacate convictions” (second motion), accompanied by a memorandum of law, exhibits, a new affidavit from the defendant, and an affidavit from plea counsel confirming that the advice in the Memorandum of Understanding contained “an accurate record of the advice [he] gave to [the defendant] regarding the immigration consequences of the referenced crimes.” The defendant argued in the second motion that plea counsel's incorrect advice constituted ineffective assistance of counsel. On January 10, 2020, the judge treated the second motion as a “motion to reconsider the court's decision of 8/7/19” and denied the motion without a hearing. On February 7, 2020, the defendant filed a motion for reconsideration. On March 4, 2020, the judge issued a written decision denying the motion for reconsideration. The defendant filed a timely notice of appeal from the January 10, 2020 order denying the motion to vacate convictions and the March 4, 2020 order denying motion for reconsideration.

Discussion. 1. Standards of review. We treat a motion to withdraw a guilty plea “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).

Here, the defendant contends that it was error to deny the motion without an evidentiary hearing. “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). 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). “Indeed, [Mass. R. Crim. P. 30 (c) (3)] 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).

Finally, the defendant grounds his argument on a claim of ineffective assistance of counsel. To prevail on this claim, the defendant must establish that there has been “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and that, as a result, he was “likely deprived ․ of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432-433 (2016) (discussing prejudice standard under second prong of Saferian test).

2. Analysis. In the present case, the judge implicitly found that plea counsel's performance did not fall measurably below that of an ordinary fallible lawyer because plea counsel provided correct advice and “ably represented” the defendant. Specifically, the judge did not credit the defendant's affidavits, finding them “self-serving.” Indeed, the defendant's first affidavit -- wherein he averred that plea counsel had not provided him any advice under Padilla -- contradicted his second affidavit wherein he described plea counsel's advice in detail. “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). Moreover, the judge found that the defendant's affidavits were “inconsistent with statements made by the defendant during his plea colloquy.” Insofar as the defendant did not file or provide a copy of the transcript of the plea hearing to this Court, we cannot conclude on the record before us that the judge's determination was incorrect. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019); Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (defendant bears burden of providing “sufficient credible and reliable factual evidence in support of a rule 30 (b) motion”). The judge further credited plea counsel's representation that he had advised the defendant that his plea would make him deportable; found that “the defendant wanted to avoid jail time even if it subjected him to potential or actual deportation”; and found no credible evidence that the defendant could have obtained a “better deal” from the Commonwealth given the nature of the charges and his criminal history.

The defendant counters that not all the crimes he committed “necessarily” carried deportation consequences, and thus plea counsel should have advised his client that the potential immigration consequences of certain crimes charged were unclear, and pursued a plea strategy that avoided convictions that carried clear deportation consequences in favor of convictions where the deportation consequences were less clear. This argument is unpersuasive. As the United States Supreme Court has stated:

“There will ․ undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ․ a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear ․ the duty to give correct advice is equally clear.”

Padilla, 559 U.S. at 369. Where, as here, plea counsel's advice was consistent with the requirements stated in Padilla and Massachusetts case law stemming therefrom, see, e.g., Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011), the defendant has failed to show “serious incompetency, inefficiency, or inattention of counsel” required to satisfy the first prong of the ineffective assistance test. Saferian, 366 Mass. at 96.

Even assuming, arguendo, that the defendant's argument satisfies the first prong of the ineffective assistance of counsel test, he fails to satisfy the second “prejudice” prong. “In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, 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’ ” (citation omitted). Clarke, 460 Mass. at 47. As a threshold matter, “a defendant must prove sufficient ‘credible facts’ to demonstrate a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice. ‘At a minimum, this means that the defendant must aver that to be the case’ ” (citations omitted). Commonwealth v. Lys, 481 Mass. 1, 7 (2018).

If this threshold requirement is met, the defendant must “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. In this context,

“the defendant bears the substantial burden of 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” (citations omitted).

Clarke, 460 Mass. at 47-48. Finally, if at least one of the Clarke factors are established, the judge must determine “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.

Here, the defendant relies on the second method of establishing prejudice -- that “there is a reasonable probability that a different plea bargain ․ could have been negotiated at the time.” Clarke, 460 Mass. at 47.3 The argument is unavailing. As the judge found, in view of the defendant's substantial criminal history, the serious and violent nature of the offenses, the defendant's prioritization of his desire to avoid jail time over other potential consequences, and the absence of any “credible evidence before the court that a ‘better deal’ may have been obtained from the Commonwealth,” the claim is speculative and specious. See id. at 49 (declining to remand ineffective assistance claim on second prong of Saferian test “where the defendant has come nowhere near meeting the burden he bears on the issue of prejudice”).4

Finally, the defendant argues that his plea was not voluntary and intelligent, in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. In support of this contention, the defendant asserts that the purported deficiencies in plea counsel's advice left him without sufficient awareness of the consequences of his plea to make an informed and voluntary decision. This argument is unavailing since the Fifth Amendment imposes an obligation on the court to ensure that a plea is knowing and voluntary while counsel's conduct is governed by the dictates of the Sixth Amendment, which imposes distinct (and broader) obligations that have been addressed supra. See Commonwealth v. Roberts, 472 Mass. 355, 360-365 (2015). The defendant focuses solely on plea counsel's conduct and fails to point to any deficiency in the court's obligations under the Fifth and Fourteenth Amendments or art. 12. Further, as discussed supra, plea counsel's advice was not constitutionally deficient.

Accordingly, the judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing.

Order dated January 10, 2020, denying motion to vacate convictions affirmed.

Order dated March 4, 2020, denying motion for reconsideration affirmed.


2.   The defendant was also charged with one count of operating a motor vehicle with a suspended license. However, that charge was subsequently dismissed with the Commonwealth's agreement.

3.   We decline to decide whether the defendant “prov[ed] sufficient ‘credible facts’ ” (citation omitted), Lys, 481 Mass. at 7, to meet his threshold burden since, as discussed infra, he has clearly failed to show prejudice under the Clarke factors. We note, however, that the defendant avers in his affidavit in support of his second motion that “[i]f [he] had known there might be some way to resolve the case without becoming deportable [he] would have asked [plea counsel] to try to do that, even if it meant [he] had to get a worse sentence. [He] would have fought every way [he] knew how.” The defendant did not state that he would have gone to trial if an alternative plea deal was not available. See Lys, 481 Mass. at 7. Further, the motion judge did not credit the defendant's affidavit. Instead, the judge found it to be “self-serving” and “inconsistent with statements made by the defendant during his plea colloquy.”

4.   Where the defendant did not establish any of the Clarke factors, we do not reach the final “totality of the circumstances” step of the analysis. Lys, 481 Mass. at 7-8.

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