COMMONWEALTH v. JAIME PEREZ MELGAR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In December 2022, the defendant pleaded guilty to assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b) (i). Almost two-and-one-half years later, the defendant filed a motion to vacate his guilty plea, claiming that he received ineffective assistance of counsel because his lawyer did not advise him of the immigration consequences of his plea and failed to advise him of “the victim's likelihood of asserting a ․ privilege [under the Fifth Amendment to the United States Constitution] that would stop her from testifying.” The District Court judge, who had accepted the plea, denied the defendant's motion after a nonevidentiary hearing. The defendant appeals from the denial of his motion to vacate his guilty plea and for a new trial. We affirm.

Background. The following facts are drawn from the defendant's plea colloquy and the affidavits submitted in support of the defendant's motion to vacate his plea. On July 4, 2021, police officers responded to reports of a fight between a group of six to eight people. During their investigation, the officers spoke to the victim at Saint Luke's Hospital. The victim told the officers that the defendant, who was the host of the party, had asked her to leave and then pushed her down the stairs, causing her to break her wrist. The police also spoke to the defendant, who stated that he did not want the victim to be at the party and that when she refused to leave, he removed her from the apartment.

During his plea, the defendant admitted the truth of all these facts. The defendant indicated that he understood all the rights he was giving up by his admission, that he had enough time to speak with his attorney, and that he believed that his attorney (plea counsel) was representing him “fairly and effectively.” The defendant also confirmed he was satisfied with his lawyer's advice.

Plea counsel informed the judge that he had discussed with the defendant the elements of the crime, the minimum and maximum penalties, possible defenses, and any “potential immigration consequences,” and that he done so with the assistance of a Spanish interpreter. Finally, the defendant answered in the affirmative when the judge provided the defendant with the immigration warnings:

“Sir, I'm required to advise you that if you are not a citizen of the United States, this plea may result in deportation, denial of naturalization, or exclusion from admission to the United States. Sir, understanding everything I've explained to you, do you still wish to enter into this plea?”

The judge then accepted the defendant's guilty plea but did not agree with the Commonwealth's or the defendant's proposed sentence recommendations.¹ Instead, the judge informed the defendant that he would impose a suspended sentence with three years of probation. The defendant had an opportunity to speak to his attorney about the judge's proposed sentence, which he then accepted.

In support of his motion to vacate his plea, the defendant filed an affidavit, along with an affidavit from his motion counsel (motion counsel) and plea counsel. The defendant claimed that at the time of his plea, his plea counsel had “never once talked to [him] about the effect that a guilty plea would have on [his] immigration status” or “about the possibility that the victim would assert her right not to testify at trial.” The defendant averred that if he had known either of those things, he would not have taken the plea and would have gone to trial.

Plea counsel filed an affidavit contradicting the defendant's affidavit. Plea counsel averred that he did inform the defendant “about the effect that a guilty plea would have on his immigration status” and the possibility that the victim would refuse to testify at the trial.

Discussion. 1. Standard of review. “A motion to withdraw a guilty plea is treated as a motion for a new trial ․” Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). “We review a judge's decision to deny a motion for a new trial without holding an evidentiary hearing for a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Alemany, 488 Mass. 499, 517-518 (2021). Where, as here, the motion judge was also the plea judge, substantial deference is afforded to the judge's determinations, recognizing the judge's superior position to assess the credibility of the defendant's claims. See Commonwealth v. Goparian, 496 Mass. 348, 356-357 (2025). “Reversal for abuse of discretion in such circumstances ‘is particularly rare ․’ ” Id. at 357, quoting Commonwealth v. Rice, 441 Mass. 291, 302 (2004). An abuse of discretion only occurs where the judge's decision resulted from “a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

2. Denial of an evidentiary hearing. A judge may decide a motion “on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.”² Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). Doing so does not deprive a defendant of due process rights. See Lykus v. Commonwealth, 432 Mass. 160, 163 (2000). We “defer to the sound discretion of the judge below whether a motion for postconviction relief requires a hearing,” id., and we discern no abuse of discretion here.

In determining whether an evidentiary hearing is required in connection with a motion for a new trial, the judge must examine whether the defendant's “motion and affidavits present a ‘substantial issue’ ” (citation omitted). Commonwealth v. Lys, 481 Mass. 1, 5 (2018). To determine whether an issue is substantial, we consider “both the seriousness of the issue itself and the adequacy of the defendant's showing” (citation omitted). Commonwealth v. Marrero, 459 Mass. 235, 240 (2011).

To make an adequate showing, a defendant need not prove the issue raised, but the motion and supporting materials “must at least contain sufficient credible information to cast doubt on the issue” (emphasis added). Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Here, the judge did not abuse his discretion in determining that the defendant did not present a substantial issue requiring an evidentiary hearing.

The judge recognized that the defendant's self-serving affidavit was completely inconsistent with plea counsel's affidavit. “A judge is not required to credit assertions in affidavits submitted in support of a motion ․ and may evaluate them in light of factors pertinent to credibility ․” Commonwealth v. Torres, 469 Mass. 398, 403 (2014). The judge examined counsel's affidavit in light of plea counsel's representation that he had discussed the immigration consequences and the possibility that a witness may refuse to testify, and he was within his discretion to credit plea counsel's affidavit and not credit the defendant's.

We also note the substantial deference afforded to a judge who oversees both the plea colloquy and motion for a new trial. Goparian, 496 Mass. at 356-357. At the time of the plea, the judge asked plea counsel if he had discussed the elements of the crime, the maximum and minimum penalties, and possible defenses, “as well as ․ potential immigration consequences” with the defendant. Plea counsel responded that he had discussed those topics with the defendant “with the assistance of the Spanish [i]nterpreter.”

The judge was entitled to make these credibility determinations and conclude that the defendant had not met his burden. Torres, 469 Mass. at 403. Thus, the judge did not abuse his discretion by denying the defendant's motion for a new trial without an evidentiary hearing.

3. Ineffective assistance. Where, as here, the defendant's motion for a new trial is premised on a claim of ineffective assistance of counsel, the defendant bears the burden of proving counsel's ineffectiveness. Commonwealth v. Dowds, 483 Mass. 498, 504 (2019). The defendant must meet the Saferian standard by establishing first that his attorney's performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” and then that the attorney's performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Marinho, 464 Mass. 115, 123-124 (2013), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant has not established that plea counsel's performance was deficient.

a. Weakness of the Commonwealth's case. The defendant claims that plea counsel was ineffective by not advising him of the victim's potential to invoke a Fifth Amendment privilege and of credibility issues the victim would face if she testified. Plea counsel averred that he had apprised the defendant of the victim's potential Fifth Amendment privilege to refuse to testify and of what the trial strategy would be should he decline to plea, and the judge acted within his discretion to credit these statements.

At the plea hearing, plea counsel confirmed that he and the defendant had discussed possible defenses. Furthermore, the defendant offered no evidence that the victim actually would have asserted a Fifth Amendment privilege if called as a witness ³ -- in fact the defendant's motion attorney conceded during the hearing that he “[did not] know if she would have actually asserted the Fifth or not.” That a witness may have had a privilege is not sufficient to find that such privilege would have been exercised, and “[t]he defendant bears the burden of proving the facts on which he relies in his motion for a new trial.” Commonwealth v. Vaughn, 471 Mass. 398, 403 (2015).

There was no abuse of discretion in the judge finding that the defendant had not met his burden to prove that plea counsel was deficient in his performance.

b. Immigration consequences. A plea counsel must inform a defendant “of the clear immigration consequences of [the] guilty plea” in order to ensure the defendant's right under the Sixth Amendment to the U.S. Constitution “to effective assistance of counsel.” Commonwealth v. Taron T., 104 Mass. App. Ct. 219, 225-226, citing Padilla v. Kentucky, 559 U.S. 356, 369 (2010). “In determining whether the defendant met his burden under the performance prong of the Saferian standard, we must first address what level of advice plea counsel w[as] constitutionally required to provide the defendant given the charges against him.” Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015). When the immigration consequences of a plea are “truly clear,” then “the duty to give correct advice is equally clear.” Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012), quoting Padilla, supra at 357.

By concluding that the defendant had not met his burden in proving that plea counsel was deficient, the judge implicitly credited plea counsel's affidavit that the defendant was advised of the potential immigration consequences by his plea counsel, a statement corroborated by statements the defendant made to that same judge at the plea colloquy. At the colloquy, the defendant, who was under oath, stated that he had sufficient time to speak with plea counsel, that plea counsel explained the consequences of the plea, and that he was satisfied that plea counsel had acted in his best interest. There is no indication from the credible evidence that plea counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer.” Saferian, 366 Mass. at 96.

The judge did not abuse his discretion in concluding that the defendant did not meet his burden in proving that counsel failed to provide the defendant with adequate immigration information.

Order denying motion to withdraw plea and for new trial affirmed.

FOOTNOTES

1.   The victim was in the courtroom during the plea but did not wish to make any statement.

2.   The defendant's motion counsel did not specifically request an evidentiary hearing, and despite the judge's admonishment that it was counsel's decision, defense counsel decided to proceed even though no witnesses were present.

3.   The defendant's motion counsel argued that the victim had a fight with the defendant's sister and thus could have been charged with an assault, and also that she could have been prosecuted for trespass due to her refusal to leave the premises when requested to do so.