Opinion
13-P-523
11-17-2014
COMMONWEALTH v. GLEN HINDS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In Commonwealth v. Hinds, 84 Mass. App. Ct. 1126 (2013), we affirmed an order denying the defendant's motion to withdraw his guilty plea based on a claim that his attorney rendered ineffective assistance of counsel by improperly advising the defendant as to the immigration consequences of his plea. The Supreme Judicial Court has remanded the case to us for reconsideration in light of its decision in Commonwealth v. DeJesus, 468 Mass. 174 (2014). After reconsideration, we conclude that DeJesus does not call for a different result, and affirm.
In DeJesus, the court concluded that plea counsel's advice that a defendant's guilty plea to an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) (2006) would render him "eligible for deportation" was constitutionally inadequate because it failed to adequately inform the defendant that deportation would be the presumptively mandatory consequence of his plea:
"We conclude that advising a defendant faced with circumstances similar to those in this case that he is 'eligible for deportation' does not adequately inform such a defendant that, if he were to plead guilty . . ., then, upon apprehension, his removal from the United States would be presumptively mandatory under Federal law." Id. at 179.
While declining to mandate precise language that would satisfy the constitutional obligation of adequate advice, DeJesus noted:
"Telling the defendant that he was 'eligible for deportation' and that he would 'face deportation' was not adequate advice because it did not convey what is clearly stated in Federal law. Advice that one is 'eligible' for deportation conveys that the law requires additional conditions to be met before an individual could be removed and allows for the exercise of discretion in determining whether those conditions are met." Id. at 181.
The circumstances here are far different from those in DeJesus, and we remain satisfied that the motion judge, who was also the plea judge, did not err in denying the defendant's motion to withdraw his plea. The defendant's motion did not contend that plea counsel failed to adequately warn him that his pleas rendered him presumptively deportable. Rather, he argued that counsel misinformed him about the actual likelihood that he would be deported by advising that "Immigration and Customs Enforcement (ICE) was highly unlikely to actually try to deport [him]."
For reasons that remain unclear, the removal proceeding against the defendant was treated as one involving whether the Attorney General should grant the defendant cancellation of removal as a matter of discretion, not one in which his convictions rendered removal automatic. Our decision does not turn on this distinction.
At the motion hearing, counsel argued, "[I]t's not about the failure to advise, it's about actual misadvice about the likelihood of deportation. . . . It's about actual affirmative misadvice with regards to the actual likelihood of deportation."
In support of his claim, the defendant pointed to a brief recorded aside with counsel during the plea colloquy. He argued that counsel's reply amounted to affirmative misadvice as to the likelihood of his actual deportation. We discern no error in the motion judge's implicit determination that counsel's remark did not amount to affirmative misadvice regarding the immigration consequences of the defendant's guilty pleas, suggest that the actuality of deportation was unlikely, or undermine the accurate immigration advice that counsel had provided.
Defendant: "I'm not going to get deported?"
Plea counsel: "I don't know what they're going to do. I doubt it."
Counsel also argued at the motion hearing that plea counsel should have been aware that between 2008 and 2010, ICE had "drastically increased the number of deportations of noncitizens with criminal convictions." In his supporting memorandum, motion counsel made reference to ICE Web site information purporting to show a substantial increase in deportations of noncitizens with criminal convictions, especially in communities participating in the "secure communities" program. The Web site information attached to the defendant's supporting memorandum does not appear to correspond with that in the record appendix.
In any event, we discern no error in the judge's rejection of the defendant's contention that, given ICE's policies and practices, plea counsel's representation fell measurably below that of reasonably competent counsel and amounted to affirmative misadvice regarding the likelihood of the defendant's deportation.
The Federal and State Constitutions do not demand clairvoyance by counsel as to whether a guilty plea will actually come to the attention of Federal authorities, and, if so, whether an order for removal will actually issue. All that is required of counsel is that when "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence" of a defendant's conviction then "the duty to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010). We view Padilla and DeJesus as requiring defense counsel to impart to a defendant the consequence that his convictions have for deportability under Federal law, not the likelihood that immigration authorities will actually go forward with deportation proceedings. As we have previously noted, the "interchange on which the defendant relies did not occur in a vacuum, but in the course of a guilty plea proceeding wherein plea counsel (and the judge) warned the defendant repeatedly, and at length, that the charges were deportable offenses." Commonwealth v. Hinds, 84 Mass. App. Ct. 1126. Viewed in that context, the defendant's claim of affirmative misadvice fails.
Indeed, counsel who categorically opines that his client "will be deported" without exploring all possible exemptions and assessing the risk of removal actually occurring might well be deemed to have rendered ineffective assistance were his client to reject a favorable plea offer, proceed to trial, and be convicted and sentenced. See DeJesus, 468 Mass. at 187 & n.2 (Cordy, J., dissenting).
Nothing in State v. Sandoval, 171 Wash.2d. 163 (2011), cited in DeJesus, 468 Mass. at 182, is to the contrary. In Sandoval, the defendant was offered the opportunity to plead to a lesser rape charge that was still an aggravated felony making him subject to mandatory deportation. Sandoval, supra at 167, 171. When he informed his attorney that he did not want to plead guilty if the plea would result in his deportation, counsel told him that he should accept the plea offer because he would not be immediately deported and would have sufficient time to retain proper immigration counsel to ameliorate any potential immigration consequences of his guilty plea. Id. at 167. Viewing counsel's statements as "categorical assurances [that] nullified the constitutionally required advice about the deportation consequences of pleading guilty," the court ruled that counsel had impermissibly left the defendant with the impression that deportation was a remote possibility. Id. at 174.
Here, the record suggests that it was the defendant who was insistent upon pleading guilty notwithstanding plea counsel's concerns about the immigration consequences of the plea. Furthermore, plea counsel's statement -- "I don't know . . . . I doubt it" -- was not a categorical assurance that the defendant's deportation was a "remote possibility." Ibid. Nor did it convey that the defendant should feel free to disregard the repeated warnings given to him both before and after this exchange. Rather it was a candid acknowledgment that counsel did not know what immigration authorities would actually do.
Order denying motion for new trial affirmed.
By the Court (Grasso, Berry & Cohen, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 17, 2014.