MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a judge of the Boston Municipal Court, denying his second motion to withdraw his 2016 plea of guilty on various drug charges. In his motion, the defendant claimed that he had received constitutionally ineffective assistance of counsel concerning potential immigration consequences resulting from his plea.
2
Our task in an appeal claiming error in an order by a trial court judge on a motion for new trial is to review for error of law or abuse of discretion. See Commonwealth v. Lys, 481 Mass. 1, 4 (2018). See also Commonwealth v. Resende, 475 Mass. 1, 12 (2016) (motion to withdraw guilty plea treated as motion for new trial). The order denying the defendants motion is brief, and we quote it in its entirety in the margin.
3
To the extent the order provides an explanation, it appears to rest on the view that, by failing to raise a claim of ineffective assistance of counsel in his first motion for new trial, the defendant waived the claim. However, even waived claims are entitled to review for a substantial risk of a miscarriage of justice, see Commonwealth v. Randolph, 438 Mass. 290, 293-294, 295-296 (2002).
In the present case, the error arising from the judges treatment of the defendants motion as waived, and resulting failure to consider the motion on its merits, precludes our review for abuse of discretion. Put another way, the judge did not exercise discretion at all, but denied the motion without consideration of the defendants claim. See Lys, 481 Mass. at 6-7. We accordingly vacate the order denying the defendants second motion to withdraw his guilty plea, and remand the matter to the Boston Municipal Court for further proceedings on the defendants claim consistent with this memorandum and order.
4
So ordered.
Vacated and remanded
FOOTNOTES
2
. The defendant previously sought, without success, to withdraw his plea based on a claim that the plea colloquy incident to his guilty plea failed to conform to the requirements of G. L. c. 278, § 29D. See Commonwealth v. Dor, 99 Mass. App. Ct. 903 (2020).
3
. The order entered as follows:“This is the second motion to withdraw the defendants guilty plea. There was no mention of ineffective assistance of counsel in the first motion to withdraw. The first motion was denied and upon appellate review, the Appeals Court rejected the appeal. This motion is without merit. Denied without a hearing.”
4
. While we express no view concerning the extent of proceedings to be conducted in the Boston Municipal Court on remand, we note that the defendants claim rests on his contention that, according to the affidavit of his plea counsel, he was advised only that his plea “could” subject him to deportation to his native Haiti, instead of advising that it would trigger presumptively mandatory deportation. See Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014). We also note that the defendant contends that due to “special circumstances,” see Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), there is a reasonable probability that a reasonable person in the defendants circumstances would have gone to trial if given constitutionally effective advice. On remand (among other things, and at least), the judge should consider both questions.