Opinion
2010-P-1733
08-23-2011
COMMONWEALTH v. SANTA C. LUGO.
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
We consider the defendant's appeal from the denial, without a hearing, of her motion for a new trial. In that motion, the defendant sought to withdraw a plea to drug charges, entered eight years earlier, claiming that her counsel rendered constitutionally ineffective assistance by advising her that she would not suffer adverse immigration consequences from an admission to sufficient facts coupled with a continuance without a finding for a period of less than one year. The motion judge, who was not the plea judge, considered the defendant's motion under the principles announced in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Based upon affidavits submitted by the defendant and her counsel, which the judge apparently credited, the judge concluded that the defendant had carried her burden of showing that counsel's performance was constitutionally deficient; however, he also concluded that the defendant had not met her burden of showing prejudice.
Unlike the motion judge, we have the benefit of the recent Supreme Judicial Court decision in Commonwealth v. Clarke, 460 Mass. 30 (2011). That case confirmed the correctness of the judge's retroactive application of Padilla to the defendant's case and the determination that, under professional norms existing at the time of her plea, counsel's misleading advice was 'behavior falling measurably below that which might be expected from an ordinary fallible lawyer,' thus satisfying the first prong of the Saferian test. See id. at 45- 46; Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See generally Commonwealth v. Villalobos, 437 Mass. 797, 802-803 (2002) (discussing history of treatment of pleas like that of the defendant under Federal immigration law). However, Clarke (supra at 47-48) also shed further light on the analysis to be undertaken of the second, prejudice prong of Saferian. Saferian, supra at 96. Viewed in that light, we conclude that the defendant's showing raises a substantial issue worthy of an evidentiary hearing. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Murphy, 442 Mass. 485, 506 n.21 (2004).
Where, as here, a defendant is seeking to withdraw a plea because of the ineffective assistance of counsel, she 'has the burden of establishing that there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted upon going to trial. At a minimum, this means that the defendant must aver that to be the case. In addition, [s]he must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.' Clarke, supra at 47 (internal quotations and citations omitted).
In Clarke, the court refused to remand for a hearing on prejudice, because the defendant had not alleged in his affidavit that he would have gone to trial had he known the consequences of his plea; nor had he offered any explanation why it would have been rational for him to plead not guilty and proceed to trial. Id. at 49. In this case, on the other hand, the defendant and her attorney both have averred that the defendant was prepared to go to trial and would not have given up her right to do so had she understood the immigration consequences of her plea. The defendant also has explained that she was prepared to defend the case on the ground that she had no knowledge of the presence of the drugs forming the basis of the charges against her. In addition, the defendant has asserted facts supporting the importance she placed upon avoiding immigration consequences, averring that she has lived in this country the majority of her life, has children, and has been gainfully employed while residing here. In short, in this case, the defendant's showing is sufficient to require further inquiry into important considerations bearing on the question of the reasonable probability that the defendant would not have entered her plea: the existence of a viable defense such that it would have been rational for the defendant to plead not guilty and proceed to trial, and the presence of special circumstances supporting the conclusion that the defendant placed or would have placed particular emphasis on immigration consequences in deciding whether to enter her plea. See Id. at 47-48 & n.19.
The defendant, the passenger in a motor vehicle stopped for speeding, was arrested after she discarded from the passenger side window a ripped envelope passed to her by the driver. The envelope was recovered and found to contain seven plastic bags of cocaine. The defendant claims not to have known of its contents.
It is not contended that a different plea bargain could have been struck, that would not have resulted in immigration consequences. See Clarke, supra at 47 & n.18.
The Commonwealth does not argue, and Clarke does not indicate, that the defendant's showing of prejudice for Saferian purposes also must include proof that she actually faces the prospect of suffering one or more immigration consequences, as is statutorily required when a defendant seeks relief on account of the plea judge's failure to give immigration warnings mandated by Massachusetts law. See G. L. c. 278, § 29D; Commonwealth v. Grannum, 457 Mass. 128, 134-136 (2010). We note, however, that the defendant avers in her affidavit that she has now been advised that her plea resulted in her being 'inadmissible' to the United States. She also represents in the memorandum supporting her motion for a new trial that she was a legal permanent resident at the time of her arrest in 2002, and that, in February, 2010, she contacted an attorney about applying for citizenship, only to be informed that her plea meant that she could not do so, and that she was deportable.
The defendant's receipt of immigration warnings from the plea judge does not obviate the need for further inquiry on prejudice. While the receipt of such warnings may be relevant to the analysis, it 'is not an adequate substitute for defense counsel's professional obligation to advise [the] client of the likelihood of specific and dire immigration consequences that might arise from such a plea.' Clarke, supra at 48 n.20. Notably, the warnings given at the time of the defendant's plea referred only to the consequences of a 'conviction.' See Commonwealth v. Villalobos, 437 Mass. at 804. Accordingly, the warnings given by the judge were not inconsistent with the advice given by the defendant's counsel, who states in his affidavit that he believed that the plea in question would not be considered a 'conviction' by the immigration authorities.
For the foregoing reasons, the order denying the defendant's motion for a new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cohen, Smith & Wolohojian, JJ.),