Summary
In Commonwealth v. Lamotte, 83 Mass.App.Ct. 1134 (2013), a panel of this court concluded that the defendant's attorney provided ineffective assistance of counsel when he represented the defendant in a guilty plea colloquy but did not ask the defendant whether he was a citizen and did not advise him of deportation consequences as required by Padilla v. Kentucky, 559 U.S. 356 (2010).
Summary of this case from Commonwealth v. LamotteOpinion
No. 12–P–1295.
2013-06-5
COMMONWEALTH v. Dexter G. LAMOTTE.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant in this case is a legal permanent resident of the United States who has been here since he was seven years old. His guilty pleas in this case and in another case in which his pleas were taken approximately three weeks prior to the plea proceeding here, a case which is on appeal presenting the same arguments presented here, Commonwealth vs. Lamotte, 2012–P–1274, rendered him not only subject to deportation, but, because the guilty pleas included pleas to “aggravated felonies” within the meaning of 8 U.S.C. § 1101(a)(43) (2006), they eliminated any possibility of cancellation of removal as might otherwise have been available to someone in his position. The plea in this case to one of the two charges at issue, that for possession with intent to distribute a class A drug, G.L. c. 94C, § 32( a ), amounts to an aggravated felony. The other charge to which he pleaded guilty, possession of ammunition without a firearm identification card, G.L. c. 269, § 10( h )(1), does not result in elimination of the possibility of cancellation of removal.
The affidavit of trial counsel in this case, in which the guilty pleas were entered more than one year after Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ( Padilla ), indicates that counsel neither asked the defendant whether he was a United States citizen nor provided him with immigration advice that is required under Padilla. Consequently, we conclude that the assistance that counsel provided fell below what Padilla requires. Under Padilla, “counsel must inform her client whether his plea carries a risk of deportation.” Id. at 1486. As a result, effective counsel must advise a noncitizen of the immigration consequences of a plea. Commonwealth v. Clarke, 460 Mass. 30, 45–46 (2011) ( Clarke ). “[W]hen the deportation consequence” of a plea “is truly clear,” as it was in this case, “the duty to give correct advice is equally clear.” Padilla, 130 S.Ct. at 1483.
This case does not present a circumstance where, because of other final convictions, the convictions in this case are irrelevant to the defendant's immigration status. The guilty pleas at issue in appeal number 12–P–1274, which formed the listed basis of the deportation proceeding that commenced immediately following the guilty pleas in this case, are still on appeal. The Commonwealth agrees with the defendant that prior to the guilty pleas in number 12–P–1274, entered April 7, 2011, approximately three weeks before the May 3, 2011, pleas in this case, the defendant had no criminal convictions that would have divested him of the possibility of cancellation of removal.
The judge found that counsel's reliance on the statutory warnings, see G.L. c. 278, § 29D, did not constitute ineffective assistance of counsel, a conclusion which is no longer tenable after Padilla. See Clarke, supra at 48 n. 20; Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 391 n. 2 (2012).
Even if the defendant told the booking officer that he was born in the United States, or made a statement that resulted in his CORI indicating that he was born in the United States, there is no evidence in the record that trial counsel relied upon those representations and determined that the defendant was a United States citizen. We therefore need not determine whether an attorney's reliance on any such statements (or the resulting documents) in failing to provide immigration advice would or would not be reasonable under Padilla. In light of this conclusion, we need take no action on the defendant's motion to strike the booking sheet apparently relied upon by the judge below and the CORI sheet subsequently printed by the Commonwealth and submitted to us.
Our conclusion requires that the order denying the motion to withdraw the pleas be vacated and that the case be remanded to the trial court for exploration of the question whether it “would have been rational under the circumstances” to reject the plea bargain. Clarke, 460 Mass. at 47, quoting from Padilla, 130 S.Ct. at 1485. On remand, an evidentiary hearing must be held on this issue. Prejudice may be shown in one of three ways: (1) that the defendant had an available, substantial ground of defense; (2) that there was a reasonable probability that a different plea bargain could have been negotiated; or (3) the presence of special circumstances indicating the defendant placed particular emphasis on immigration consequences in deciding whether to plead guilty. Clarke, 460 Mass. at 47–48. Some guidance with respect to the latter two tests may be in order. As to whether there was “a reasonable probability” the defendant would have been able to obtain a better deal, Clarke, 460 Mass. at 47, it is true that the record contains contemporaneous statements of defendant's counsel stating that the Commonwealth would not “budge” on the deal that was offered, as well as the judge's observation that the defendant could have faced substantially more stringent penalties than the two-year concurrent sentences, one year to be served, balance suspended, that he received on these two charges. Nonetheless, at the time of the plea agreement, the record is undisputed that neither defense counsel nor the prosecutor knew of the immigration consequences of this particular plea and they therefore could not take plea consequences into account. See Padilla, 130 S.Ct. at 1486 (“Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation ...”). Cf., e.g., People v. Bautista, 115 Cal.App. 4th 229, 240 (2004) (describing practice of “plead[ing] up,” in which a defendant accepts a stiffer sentence in exchange for being allowed to plead only to a nonaggravated felony); Rivera v. State, 180 Md.App. 693, 705–706 (Md.Ct.Spec.App.2008), aff'd, 409 Md. 176 (2009) (detailing plea negotiations where a prosecutor sought guidance from immigration officials to structure a plea to avoid deportation).
In addition, the defendant would be entitled to relief if he could show “special circumstances” that indicate he would have placed particular emphasis on immigration consequences in deciding whether to plead guilty. Clarke, 460 Mass. at 47–48. Although it does not describe the relationships at all, the defendant's affidavit, which asserts that the defendant has six children who are United States citizens, at least raises an issue requiring further exploration whether such special circumstances exist in this case.
Consequently, the order denying the motion to vacate the convictions and withdraw the pleas is vacated and the case is remanded to the trial court for an evidentiary hearing consistent with this memorandum and order.
So ordered.