COMMONWEALTH v. JORGE FIGUEROA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant is a lawful permanent resident of the United States who came to this country from El Salvador as a child. In 2018, he pleaded guilty to malicious destruction of property (G. L. c. 266, § 127). He was detained by Federal immigration authorities in 2025 as he returned to the United States after traveling to a family wedding. The defendant moved to vacate his guilty plea and for a new trial, asserting that his lawyer had not advised him that, as a consequence of his guilty plea, he could be detained and excluded from admission into the United States if he left and attempted to return to the country. The motion was heard and denied, without an evidentiary hearing, by the same judge who had presided over the defendant's guilty plea. The defendant challenges the judge's having ruled without holding an evidentiary hearing and her denial of the motion. We affirm.

“A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), cert. denied, 550 U.S. 907 (2007), quoting Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review the denial of the motion for abuse of discretion, Commonwealth v. Grace, 397 Mass. 303, 307 (1986), reversing only if “it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).

1. Evidentiary hearing. We do not agree that the trial judge erred in denying the motion for a new trial without holding an evidentiary hearing. The record does not reflect that the defendant ever requested an evidentiary hearing, either in the motion papers or during the nonevidentiary hearing on the motion. Not having asked for such a hearing, the defendant cannot now complain that one was not afforded.

The defendant's argument fares no better on the merits. As the defendant correctly acknowledged, “[t]he judge may rule on the issue or issues presented by such 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.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). To entitle a defendant to a hearing, “[a]lthough the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue.” Commonwealth v. Denis, 442 Mass. 617, 629 (2004). “A defendant's self-serving affidavits and assertions are not sufficient, on their own, to raise a substantial issue” (quotation omitted). Id. at 633, quoting Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003).

Here, we are mindful that the plea judge and the motion judge were the same. In ruling on the motion, the judge was entitled to rely on her memory of the plea. See Commonwealth v. Kolenovic, 471 Mass. 664, 672-673 (2015). The affidavits contained competing representations: one, from the defendant, asserting that plea counsel gave him incomplete advice, and the other, by postconviction counsel, noting that plea counsel “maintained that he provided complete advice.” While the defendant's long-term partner was more resolute in her recollection that plea counsel did not advise the defendant about the potential consequences of international travel, that averral fails to carry the day. First, the partner's averral was contrary to plea counsel's statement during the plea colloquy that he “did review the immigration consequences, [the defendant] is exposed to serious immigration consequences because of this plea, he has a green card right now.” Second, because of attorney-client privilege, it is reasonable to infer that the defendant and plea counsel had private discussions that did not involve the partner. Accordingly, had the judge been asked to hold an evidentiary hearing, she would have been well within her discretion in concluding that the affidavits did not raise a “substantial issue” requiring a hearing.

2. Motion for a new trial. Moving to the merits, we are not persuaded that the judge erred by denying the motion for a new trial. “A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test.” Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014). This requires showing that (a) counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” and (b) such conduct deprived the defendant of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Here, we pass on the question of whether plea counsel's performance was deficient because we conclude that the defendant cannot show prejudice, that 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). See Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). To do so, a defendant must show that: (1) he had an “available, substantial ground of defence, that would have been pursued if he had been correctly advised of the ․ immigration consequences;” or (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” (quotations and citations omitted). Id. Because a video recording showed the defendant committing the charged crime, the first ground is not at issue.

We are similarly unpersuaded that the motion materials raised a reasonable probability that a more favorable plea was available. In support of this assertion, the defendant relied on an affidavit from an experienced defense counsel who opined that it was “reasonably probable” that plea counsel could have negotiated an immigration-safe plea deal. But, while the affiant noted that he was aware of the defendant's other pending charges, he did not address the fact that the defendant was charged with committing both crimes while on pretrial release on the instant matter, a fact that could have materially affected the availability of a favorable plea resolution. Furthermore, the prosecutor said at the motion hearing that the defendant's case was “not [one] that the Commonwealth ․ would have agreed to -- to file or dismiss or what have you.”

The defendant also contends that the motion judge erred in failing to assess the defendant's claim of special circumstances and by failing to make necessary and appropriate findings regarding those special circumstances. We do not agree. While immigration-based special circumstances are afforded substantial weight in the determination of prejudice, the “presence of special circumstances alone” does not necessarily establish prejudice. See Commonwealth v. Lavrinenko, 473 Mass. 42, 57, 59 (2015). The defendant presented scant evidence on which the judge could have relied to find special circumstances, representing only that “he fled a war in El Salvador” as a child. In the absence of anything more, we cannot conclude that the judge erred by not finding the defendant's special circumstances raised a substantial issue. See Denis, 442 Mass. at 633.

Order denying motion to vacate guilty plea and for new trial affirmed.