Opinion
No. 15–P–158.
07-27-2016
COMMONWEALTH v. Dexter G. LAMOTTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
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). See Commonwealth v. Clarke, 460 Mass. 30, 45–46 (2011). The panel vacated the denial of the defendant's motion to withdraw his guilty plea and remanded the matter to the motion judge, who was also the plea judge, to determine whether it would have been rational under the circumstances to reject the plea offer and proceed to trial. On remand, after an evidentiary hearing, the judge concluded that the defendant had not demonstrated that he had an available, substantial ground of defense, there was no reasonable probability that a different plea agreement could have been negotiated, and he did not embody the extensive ties or connections that might warrant a rational willingness to “roll the dice” by going to trial. Ibid.
On appeal, the defendant argues that the judge erred because he would have needed only a slight reduction in the sentence to help him avoid the immigration consequences. The defendant states that the Commonwealth would have agreed to this slight reduction and had the judge not been willing to accept such a plea, he would have gone to trial. The defendant also argues that he would have mounted a defense, albeit not necessarily a strong defense. According to the defendant, this would have been a rational choice because he had a young son with whom he had a significant bond, he had other older children in the United States, and he came to the United States when he was a child.
A postconviction motion to withdraw a guilty plea is treated as a motion for new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). “The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000). Our deference to the judge in these circumstances is substantial because he presided during the guilty plea colloquy and the defendant's motion to withdraw the plea. Commonwealth v. Williams, 71 Mass.App.Ct. 348, 353–354 (2008).
In addition, the judge made specific credibility determinations on relevant facts. Credibility is a matter solely for the judge. Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007). The defendant submitted an affidavit which the judge did not find credible. The defendant did not call plea counsel as a witness. The judge discredited the testimony of the defendant's two witnesses that the defendant had been actively engaged in the care of, development of, or support of his ten year old son. The judge concluded that the facts alleged by the defendant did not support a finding of special circumstances that would have made it rational for him to go to trial rather than accept the plea offer. The judge also concluded, after analyzing the facts of the case, that the defendant did not have “an available, substantial ground of defense .” Commonwealth v. Clark, 460 Mass. at 45–48. The judge also determined that there had been no reasonable possibility that a different plea bargain could have been negotiated. The plea agreement that had been made was very advantageous to the defendant and the Commonwealth had indicated to defense counsel that it would not “budge” any further. Furthermore, when given the opportunity during the plea colloquy to withdraw his plea, the defendant stated that he would rather “just take the deal [because] its not going to get any better.”
The defendant has not shown that the judge committed an error of law or abused his discretion. The judge correctly applied the appropriate law and made findings of fact supported by the record and based on credibility determinations. See the Commonwealth's brief at pages thirteen through seventeen and the arguments and authorities cited therein.
Order denying motion to withdraw guilty plea affirmed.