Opinion
16-P-1175
06-19-2017
COMMONWEALTH v. William NOVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2005, the defendant pleaded guilty in the Dorchester Division of the Boston Municipal Court (BMC) to possession of a class B substance (cocaine) and possession of a class D substance (marijuana). A BMC judge (first judge) accepted that plea and entered a continuation without a finding (CWOF) for nine months. Based on the guilty plea, the Federal government began deportation proceedings against the defendant, who had been born in the Dominican Republic, had come to the United States as a child, and had been a long-term legal resident here. On March 31, 2010, while the deportation proceedings were pending, the defendant, represented by new counsel, moved to withdraw his guilty plea and for a new trial, claiming that his plea counsel, Dane Shulman, was ineffective in advising him as to the immigration consequences of his plea. See Padilla v. Kentucky, 559 U.S. 356 (2010). In an apparent coincidence of timing, Padilla—the landmark case in this area—was issued the very day the defendant's motion was filed, and, unsurprisingly, the defendant's motion did not cite to it.
The defendant's motion bears a date stamp from the clerk's office of March 31, 2010, at 10:01 A.M ., indicating that it almost certainly was filed before Padilla was published.
In support of his motion, the defendant submitted, inter alia, an affidavit in which he alleged that plea counsel had informed him that a CWOF was not a "conviction" and that therefore he would not suffer any immigration consequences from pleading guilty. According to the affidavit, the defendant would never have pleaded guilty had he been properly informed of the immigration consequences of doing so. Following a nonevidentiary hearing, the first judge summarily denied the motion on May 12, 2010. No appeal was taken.
The defendant's submissions also included an affidavit from his then-current attorney setting forth his efforts in securing an affidavit from plea counsel, who had since retired to Florida.
On October 7, 2014, the defendant filed a second motion for new trial. That motion was based on the same general grounds as the first, but it sought to make use of the profusion of case law that had developed in this area in the interim. See, e.g., Commonwealth v. Clarke, 460 Mass. 30, 34-48 (2011) ; Commonwealth v. Sylvain, 466 Mass. 422, 426-437 (2013). Initially, a second BMC judge (second judge) determined that the motion should be heard by the first judge, who had both accepted the defendant's plea and had ruled on the defendant's first motion for a new trial. However, in the intervening years the first judge had been appointed to the Superior Court, and she therefore indicated that she would not hear the second motion. After a nonevidentiary hearing, the second judge eventually denied the second motion for new trial. He explained the grounds for his denial as follows:
The defendant resubmitted the affidavits he had submitted in 2010, and added two new affidavits, including a new one from him. His new affidavit sought to lay out that he had "special circumstances" for wanting to stay in the United States (that overcame an otherwise favorable plea offer). See Commonwealth v. DeJesus, 468 Mass. 174, 183-184 (2014). This affidavit, which was drafted while the defendant was in Federal confinement—see note 5, infra—is unsigned. The Commonwealth makes much of that issue now, although it never raised that infirmity below. The defendant in any event subsequently did submit a signed third affidavit to the BMC. Strictly speaking, since that third affidavit was submitted in support of a never-argued third motion for new trial, it is not properly before us. We leave it to the discretion of the BMC judge whether to consider the third affidavit on remand (an issue that in any event would be mooted by the holding of an evidentiary hearing).
"This court absent written findings cannot rule on what [the first judge] has decided and declines to disturb her ruling. This Court will not disturb [the first judge's] decision absent a showing of an abuse of discretion which would result in manifest injustice."
Before us now is the defendant's appeal from the order denying his second motion for new trial.
The Commonwealth takes the position that because the second motion raised essentially the same issues as the first, and the denial of the first motion was never appealed, the defendant is estopped from pressing his second motion, and the second judge had no authority even to entertain it. We disagree for two reasons. First, a change in the legal landscape presents an exception to the law of direct estoppel. See Commonwealth v. Williams, 431 Mass. 71, 76 (2000) (referencing, with apparent approval, "the discretionary exception that permits a reviewing court to authorize re-litigation of an issue because of an intervening change in the applicable law"), citing Restatement (Second) of Judgments § 28(2) & Reporter's Note at 286 (1982). Second, the express language of the relevant rule endorses a more forgiving approach than the one preferred by the Commonwealth. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001) ("The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done"). See also Commonwealth v. Roberts, 472 Mass. 355, 359 (2015) (judge may entertain issues not raised in prior motion for new trial if "upon sober reflection, it appears that a miscarriage of justice might otherwise result" [quotation omitted] ).
Whether the defendant has a valid Padilla claim raises factual issues that should be addressed by the trial court in the first instance. See Commonwealth v. Clarke, 460 Mass. at 45-48 (setting forth the analytical framework that trial courts are to use to address Padilla claims). The first judge denied the defendant's initial motion without providing any findings or reasons. See rule 30(b) ("Upon the motion [for new trial] the trial judge shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law"). Then, based on the very absence of an explanation by the first judge, the second judge reasoned that his hands were tied and he could not "disturb [her] decision." Without taking any position on how the underlying substantive issues should be resolved, we conclude that under applicable case law, the defendant has made a sufficient showing that he should be allowed to have his second motion for new trial addressed on the merits.
See Commonwealth v. Sylvain, 466 Mass. at 439 ("[T]he defendant's affidavit [was] highly suggestive that he would have elected to go to trial but for his attorney's erroneous advice, ... [but] findings [and] credibility assessments made by the motion judge [were necessary in order for the appellate court] to say with any certainty whether the defendant's affidavit [was] merely self-serving or whether he was sufficiently prejudiced to justify vacating his guilty plea and ordering a new trial"). See also Commonwealth v. DeJesus, 468 Mass. at 183-184 ; Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 552-553 (2014).
We therefore vacate the order denying the second motion for new trial and remand this matter to the BMC for further proceedings consistent with this memorandum and order. To be clear, although we do not by today's memorandum and order bar the Commonwealth from requesting of the Chief Justice of the Trial Court that the first judge (now a Superior Court judge) be specially appointed as a BMC judge in order to hear the matter, see G. L. c. 211B, § 9(xi), nothing we say here should be taken to suggest that we think that invocation of such extraordinary procedures is either necessary or appropriate.
After the first motion was denied, the defendant was in fact deported and then taken into Federal custody after he apparently returned to the United States. He remained in such custody when the second motion was heard, but—according to his counsel—since has been removed a second time. It is not clear on what is before us whether the second removal proceeding was conducted pursuant to a reinstatement of the original deportation order, or pursuant to a second removal order based on other grounds. At oral argument, neither counsel was able to shed light on this or to respond in an informed manner as to whether these developments rendered the defendant's appeal moot. Our remand is without prejudice to the Commonwealth's ability to raise the issue of mootness in the BMC, and the judge is free to raise that matter sua sponte. We additionally note that, in any event, the current circumstances may well complicate how this case proceeds. The judge on remand may wish to explore the availability of procedures commonly used in the Probate and Family Court to allow witnesses to appear remotely (involving a system known as Polycom).
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So ordered.
Vacated and remanded.