COMMONWEALTH v. TRAVIS WASHINGTON (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Travis C. Washington, appeals from orders of the District Court denying his motion to withdraw his 1995 guilty plea to indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and his motion for reconsideration. On appeal, he argues that because under the Adam Walsh Child Protection and Safety Act (AWA), 8 U.S.C. § 1154(a)(1)(A)(viii) (2006), his conviction precluded him from applying for lawful permanent resident status for his wife, he was deprived of the effective assistance of counsel; his plea was not knowing, intelligent, and voluntary; and he was impermissibly subjected to an additional consequence after he completed his sentence. We affirm.

Background. 1. History. On July 18, 1995, the defendant pleaded guilty to indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and was sentenced to two years in the house of correction, suspended for two years.

In 2006, Congress enacted the AWA, which prohibits approval of a family-based visa petition filed by a United States citizen convicted of a “specified offense against a minor,” unless the Secretary of Homeland Security determines that the citizen poses “no risk” to the beneficiary. 8 U.S.C. § 1154(a)(1)(A)(viii)(I).¹

In 2023, shortly after the defendant married his wife, a noncitizen, he petitioned for lawful permanent resident status on her behalf. Pursuant to the AWA, the United States Citizenship and Immigration Services (USCIS) denied the petition based on the defendant's conviction. His administrative challenge to the USCIS's application of the AWA remains pending before the Board of Immigration Appeals. His wife presently remains in the United States pursuant to an employment-based visa.²

2. Postconviction proceedings. On November 1, 2024, the defendant moved to withdraw his guilty plea, arguing, among other things, that the AWA retroactively imposed a consequence of which neither his plea counsel nor the plea judge could have advised him in 1995. Following a nonevidentiary hearing, a District Court judge denied the motion. The defendant moved for reconsideration, relying in part on People v. Smollett, 2024 IL 130431, ¶ 49 (second prosecution of defendant violated due process where he had performed his obligations under prior agreement with State). That motion was denied. The defendant appeals.³

Discussion. 1. Standard of review. 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). See Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016). We review the denial of such a motion to “determine whether there has been a significant error of law or other abuse of discretion.” Id., quoting Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). Where, as here, the motion judge did not preside at the plea hearing and did not conduct an evidentiary hearing, “we regard ourselves in as good a position as the motion judge to assess the ․ [documentary] record.” Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 549 (2014), quoting Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011).

2. Ineffective assistance of counsel. The defendant argues that plea counsel was ineffective for failing to advise him that his conviction could prevent him from obtaining lawful permanent resident status for a future noncitizen spouse. This argument fails because the statutory consequence on which he relies did not exist when he pleaded guilty.

To establish ineffective assistance of counsel under art. 12 of the Massachusetts Declaration of Rights, a defendant must show that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that counsel's deficiency “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Lopez, 106 Mass. App. Ct. 116, 129 (2025) (Smyth, J., concurring in part and dissenting in part). In the immigration context, counsel is required to advise a defendant regarding the risk of deportation resulting from a guilty plea. See Padilla v. Kentucky, 559 U.S. 356, 373-374 (2010); Lavrinenko, 473 Mass. at 51. However, counsel is not required to predict future changes in the law. See Commonwealth v. Mahar, 442 Mass. 11, 19 (2004) (“We do not require attorneys to foretell the future ․”).

The AWA was enacted eleven years after the defendant's plea. Counsel therefore could not have advised him of the subsequently created statutory restriction. Accordingly, the motion judge did not err in rejecting the defendant's ineffective assistance claim.

3. Due process. The defendant next argues that, irrespective of counsel's performance, the retroactive application of the AWA materially altered the consequences of his plea after he completed his sentence, rendering the plea unknowing and involuntary and subjecting him to additional punishment. He further argues that the restriction substantially burdens his fundamental right to marry. See Obergefell v. Hodges, 576 U.S. 644, 665 (2015) (recognizing that right to marry is fundamental right); Goodridge v. Department of Pub. Health, 440 Mass. 309, 313, 322 (2003) (recognizing right to marry as fundamental right protected by Massachusetts Declaration of Rights).

A guilty plea must be entered knowingly, intelligently, and voluntarily. See Commonwealth v. Furr, 454 Mass. 101, 106 (2009). But “[a] voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Brady v. United States, 397 U.S. 742, 757 (1970). See Commonwealth v. Price, 106 Mass. App. Ct. 376, 379 (2025).

The defendant's reliance on the fundamental right to marry does not establish a defect in his plea. The AWA does not prohibit the defendant from marrying; in fact, the defendant is already married. Rather, the AWA affects his ability to obtain approval of a family-based visa petition for his wife. See 8 U.S.C. § 1154(a)(1)(A)(viii). Whether the Federal government may properly apply that restriction to the defendant's petition is the subject of his separate administrative challenge and is not before us. As such, the enactment of the AWA in 2006 and its application to the defendant in 2024 does not establish that defendant's 1995 plea was constitutionally defective when entered.

Nor does Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013), S.C., 473 Mass. 832 (2016), require a different result. The defendant in that case was a noncitizen facing removal. Here, by contrast, the defendant is a United States citizen and thus, is not subject to removal.

4. Motion for reconsideration. Finally, the defendant contends that Smollett, 2024 IL 130431, ¶ 49, required reconsideration of the denial of his motion. We disagree. Apart from being nonbinding Illinois authority, Smollett concerned the enforceability of an agreement between a prosecutor and a criminal defendant. Here, the AWA was enacted by Congress more than a decade after the defendant's Massachusetts conviction and was not a term of his plea agreement or sentence. Nothing in the record suggests that the Commonwealth promised that his conviction would be immune from consequences arising under later enacted Federal law. Accordingly, the motion judge did not abuse his discretion in denying reconsideration.

Conclusion. The order dated November 25, 2024, denying the defendant's motion to withdraw his guilty plea, and the order dated January 22, 2025, denying his motion for reconsideration, are affirmed.

So ordered.

FOOTNOTES

1.   The defendant's conviction falls within the United States Citizenship and Immigration Services’ (USCIS) interpretation of a “specified offense against a minor,” 8 U.S.C. § 1154(a)(1)(A)(viii); 34 U.S.C. § 20911(7).

2.   That status does not provide the same path to lawful permanent residence that would otherwise be available through their marriage.

3.   At least on the record before us, it is not clear whether the notices of appeal from the orders are timely; nonetheless, we exercise our discretion to address the issues raised because the arguments have been fully briefed and they involve important questions of law. See Commonwealth v. Sylvia, 89 Mass. App. Ct. 279, 285 (2016).