MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On August 9, 2017, the defendant, Emmanuel Evariste, entered guilty pleas in the Boston Municipal Court on two separate criminal complaints. With respect to each complaint, he pleaded guilty to one count of distribution of, and one count of possession with intent to distribute, a class B substance, crack cocaine, both in violation of G. L. c. 94C, § 32A (a). The Commonwealth dismissed three counts alleging school zone violations, and the defendant received four concurrent, suspended sentences of two years.
On September 27, 2018, with respect to two additional criminal complaints, the defendant pleaded guilty to two charges of possession of a class B substance, crack cocaine, with intent to distribute. A count alleging possession with intent to distribute as a subsequent offense was dismissed. A second judge sentenced him to concurrent two year house of correction terms, with six months to serve and the balance suspended.
In June and July 2019, the defendant filed motions to withdraw his guilty pleas in all four matters. The second judge heard all the motions together and denied them on July 24, 2019. The defendant filed notices of appeal on August 12, 2019.
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On November 30, 2020, a single justice of this court waived assembly of the record and ordered the appeal entered on the docket, the trial court having inexplicably failed to assemble the record. On January 6, 2021, the court allowed the defendants motion to file a nonconforming brief without a record appendix, and expedited the appeal due to the defendants imminent removal from the country. At the courts request, the Commonwealth expeditiously filed a record appendix and a memorandum in lieu of brief.
The defendant argues that he should have been permitted to withdraw his guilty pleas on grounds of ineffective assistance of counsel, specifically, that counsel did not provide competent advice about the deportation consequences of the defendants pleas. See Padilla v. Kentucky, 559 U.S. 356 (2010). We review a judges action on a motion to withdraw a guilty plea to determine whether the judge committed an abuse of discretion or made a significant error or law. See Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). The defendant bears the burden of proof, “and a judge is entitled to discredit affidavits he or she does not find credible.” Commonwealth v. Marinho, 464 Mass. 115, 123 (2013).
To be entitled to relief, the defendant had the burden to show both that plea counsel failed to give him constitutionally adequate advice, and that he was prejudiced by counsels failure. See Commonwealth v. Sylvain, 466 Mass. 422, 437-438 (2013); Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451-452 (2015). We need not determine whether plea counsels advice was inadequate, however, because the defendant made no showing of prejudice. See Strickland v. Washington, 466 U.S. 668, 697 (1984) (“a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”).
“In the context of a guilty plea, in order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant must at least allege that, if properly advised, he would have rejected the Commonwealths plea offer and gone to trial. See Clarke, supra. See also Commonwealth v. Pike, 53 Mass. App. Ct. 757, 762–763 (2002) (“Ordinarily, a motion for new trial predicated on ineffective assistance of counsel incident to a guilty plea is fatally deficient if the defendant does not allege that he would have rejected the plea but for the incompetent advice of counsel”). “In addition, he must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ ” Clarke, supra, quoting Padilla, 559 U.S. at 372.
The defendant makes no viable argument in his brief that he had a rational reason to reject the plea agreements reached with respect to his four criminal complaints.
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His only reference to prejudice is a general statement, without any factual support, that he might have been acquitted because proof beyond a reasonable doubt is a stringent standard. This is insufficient to warrant a new trial (let alone four new trials). See Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998) (“a judge is not required to accept the defendants self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendants burden, under rule 30(b), to produce a credible reason” to withdraw guilty plea [citation and quotation omitted]). Moreover, we have reviewed the defendants motions and affidavits filed in the trial court. These pleadings, too, fail to allege or support any claim of identifiable prejudice.
Conclusion. The orders denying the defendants motions to withdraw his guilty pleas are affirmed.
So ordered.
Affirmed
FOOTNOTES
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. The defendant subsequently filed a barrage of motions to reconsider, vacate, amend, and overturn the convictions, all of which were denied. The defendant did not file any additional notices of appeal.
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. The case law identifies three ways a defendant may demonstrate that he would have made a rational decision to forego a guilty plea and go to trial: he can show (1) that he had a viable defense to the charges, (2) a reasonable probability of negotiating a plea bargain that would not have exposed him to immigration consequences, or (3) “the presence of ‘special circumstances’ that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.” Henry, 88 Mass. App. Ct. at 455, quoting Clarke, 460 Mass. at 47-48.