MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a Superior Court judge denying, without a hearing, his motion to withdraw his guilty pleas or for a new trial. The defendant contends that his plea counsel failed to advise him that as a result of his pleas, the defendant would become “per se removable.”
The defendants motion was accompanied by affidavits from the defendant, the defendants sister, and plea counsel. According to the defendant and his sister, plea counsel advised the defendant that he was unlikely to be deported as a result of his guilty pleas, because he had not been deported after prior convictions. Plea counsel averred that he could not recall the advice he had given, but that his general practice was to give advice that “tracked” the waiver of rights form that the defendant signed. The defendant therefore argues that the affidavits raised a substantial issue regarding whether he received ineffective assistance of counsel, such that an evidentiary hearing was required. Under the circumstances, we agree that a hearing was necessary, and accordingly, we vacate the order and remand the matter for further proceedings.
Background. In October of 2016, police officers in Dorchester responded to a report that there was an individual with a gun in the area of Columbia Road and Glendale Street. Upon arrival they saw the defendant, who matched the description the police officers had received; the defendant saw the officers and ran away, with the officers in pursuit. The officers heard the defendant throw something in a trashcan, which turned out to be a firearm. The defendants palm print was on the loaded gun, and according to thermal imaging tests, the gun was still warm when recovered by the police. The defendant was subsequently indicted on three charges: possession of a firearm without a license in violation of G. L. c. 269, § 10 (a), as an armed career criminal (ACC) under G. L. c. 269, § 10G (b);
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possession of ammunition without a license in violation of G. L. c. 269, § 10 (h); and unlawfully carrying a loaded firearm in violation of G. L. c. 269, § 10 (n).
In April of 2018, the defendant pleaded guilty to the firearm possession charges. In return, the Commonwealth dropped the ammunition charge and ACC enhancement. During the plea colloquy, the judge advised the defendant that “this guilty plea ․ could have the consequences of your deportation” and “if the ․ offense to which youre pleading guilty is under federal law, [sic] that presumptively mandates removal from the United States and if federal officials decide to seek your remov[al], ․ it is practically inevitable that these convictions would result in your deportation ․” The defendant also confirmed that he understood the waiver of rights form that he had signed, which read:
“I understand that if I am not a citizen of the United States, a conviction in the above case(s) may result in my deportation, exclusion from admission to the United States, or denial of naturalization, and that if the offense is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this conviction will result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States.”
The judge sentenced the defendant to two and one-half years of incarceration, and a three-year period of probation.
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Approximately twenty months later, in December of 2019, the Department of Homeland Security notified the defendant that, due to his convictions, he was subject to removal pursuant to § 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C). An immigration judge subsequently ordered that the defendant be deported. The defendant thereafter filed a motion for new trial in the Superior Court, arguing that his attorney had provided ineffective assistance of counsel by not adequately informing the defendant that his guilty pleas would subject him to “mandatory” deportation.
The defendants affidavit accompanying the motion described a meeting he attended with his attorney, his mother, and his sister in March of 2018. The defendant averred that during that meeting, his sister asked his attorney “whether accepting the plea would have any immigration consequences” for the defendant, and plea counsel replied that “ ‘[i]f you have been locked up before and immigration did not mess with you, it is unlikely they will mess with you this time around.’ ” The defendant further averred that he was not aware that his guilty pleas would result in deportation. Finally, the defendant represented that he would have rejected the plea agreement and taken his chances at trial had he known the guilty pleas rendered him deportable.
The affidavit of the defendants sister also discussed the March 2018 meeting. The sister averred that she asked plea counsel what impact the pleas would have on the defendants immigration status. According to the sisters affidavit, plea counsel responded that “if immigration authorities had not intervened with [the defendant] before despite his prior criminal cases, they would not intervene with him now.”
The defendant also submitted an affidavit from plea counsel, which stated that he had no recollection of his conversations with the defendant, but that his “usual practice at the time of Mr. Dos Santoss plea ․ consisted [of] providing advice that tracked the content of the Waiver of Defendants Rights Form.” Plea counsels affidavit did not address the defendants averments as to what plea counsel said about the likelihood of immigration consequences.
The affidavits of the defendant and his sister also described the defendants ties to the United States. The defendant is a Cape Verdean citizen who entered the United States as a legal permanent resident at seven years old. The defendant has two daughters, aged six and eleven, who live in the United States and are United States citizens. In addition, the defendants entire family lives in the United States -- including his parents, siblings, children, aunts, and uncles. The defendant also maintained employment in the United States to support his daughters and parents, and maintained close relationships with them. The defendants affidavit represented that his family would “experience extreme hardship” if he were to be deported.
After receiving the Commonwealths opposition, a different judge (motion judge) denied the motion for new trial on the papers. The motion judge concluded that the motion did not raise a substantial issue because: (1) the defendant and the sisters affidavits were self-serving and contradictory, (2) the statement the defendant alleged that plea counsel made regarding deportation would not constitute ineffective assistance of counsel, even if true, and (3) the defendants “highly experienced and competent counsel” had negotiated a favorable plea. The defendant filed a motion to reconsider, which the motion judge also denied. This appeal followed.
Discussion. 1. Substantial issue. The defendant argues that his motion for new trial raised a substantial issue as to whether he received ineffective assistance of counsel. We review the motion judges decision to deny the defendants motion without an evidentiary hearing for “significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Alemany, 488 Mass. 499, 517-518 (2021).
The defendants ineffective assistance argument springs from Padilla v. Kentucky, 559 U.S. 356, 369 (2010), in which the United States Supreme Court held that defense counsel may provide ineffective assistance where counsel fails to provide accurate advice about the clear immigration consequences of a guilty plea. Cases subsequent to Padilla in our courts have fleshed out the law in this area considerably. See Commonwealth v. DeJesus, 468 Mass. 174, 180-182 (2014). As with any ineffective assistance claim, the defendant must make two showings: (1) that plea counsels performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” and (2) that the defendant was prejudiced. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Performance. We first address the defendants showing as to whether counsels performance was ineffective. Here, the defendant sought to make his showing in a motion for new trial, based upon the affidavits described above. The motion judge denied the motion without hearing. However, the judge may decide such a motion without an evidentiary hearing only “if no substantial issue is raised by the motion or affidavits.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). A motion for new trial presents a substantial issue if the written materials “contain sufficient credible information to cast doubt on the issue.” Commonwealth v. Denis, 442 Mass. 617, 629 (2004).
Here the defendants affidavits were sufficient to “cast doubt on the issue,” and thus to require a hearing. The professional standard that plea counsel was required to meet is set forth in our cases: “To provide effective representation under the Sixth Amendment, counsel must advise his or her clients about a guilty pleas ‘truly clear’ deportation consequences” (citation omitted). Commonwealth v. Lys, 481 Mass. 1, 5 (2018), quoting Padilla, 559 U.S. at 369. Here, the defendants guilty pleas to possessing a loaded firearm rendered him presumptively removable because “[a]ny alien who at any time after admission is convicted under any law of ․ possessing ․ any weapon, part, or accessory which is a firearm ․ in violation of any law is deportable.” 8 U.S.C. § 1227(a)(2)(C). Plea counsel therefore had an obligation to inform the defendant “that all of the conditions necessary for removal would be met by the defendants guilty plea[s].” DeJesus, 468 Mass. at 182. Put differently, our cases indicate that counsels advice should have included, in substance, that the defendants pleas rendered him presumptively removable.
Standing alone, the advice described in the affidavits would not constitute effective legal counsel regarding the deportation consequences of the defendants guilty pleas. The affidavits of the defendant and his sister both allege that plea counsel said that immigration consequences from the guilty pleas were unlikely (or indeed, would not occur), based on the defendants prior experiences with immigration authorities. Moreover, the defendants affidavit explicitly avers that he “was not aware” that his guilty pleas would result in deportation. This alleged advice, if credited, would not meet the obligations of plea counsel.
Plea counsels affidavit does not materially change the calculus. As to counsels averment that his advice generally “tracked the content of the Waiver of Defendants Rights Form,” we find Commonwealth v. Henry, 88 Mass. App. Ct. 446 (2015) instructive. In that case, the defendant alleged that his attorneys did not tell him he could face deportation after pleading guilty to violating an abuse prevention order. Id. at 448-449. Such a conviction -- like the firearm convictions here -- renders a noncitizen defendant “deportable” under 8 U.S.C. § 1227(a)(2). Id. at 452-453. One of the attorneys in Henry stated in his affidavit that “his customary practice is to read with his clients the waiver of rights language on the tender of plea and waiver of rights form.” Id. at 454. We held, however, that this “would not have satisfied counsels affirmative duty to inform the defendant that [in that case] ‘deportation would be practically inevitable’ ” (citation omitted). Id.
The record before us accordingly does not allow for a determination, prior to a hearing, as to whether counsels advice satisfied the Sixth Amendment standard. Plea counsels statement that he “tracked” the waiver of rights form is not the same as saying he merely read the form, as in Henry; nevertheless, there are “gaps” in the record as to what exactly transpired. The advice in the waiver of rights form is conditional and unspecific. It states:
“if the offense is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this conviction will result in deportation, exclusion, from admission, or denial of naturalization under the laws of the United States.”
Whether defense counsel limited his advice in the way that the form does, by not providing advice as to the consequences of the defendants particular offenses, or whether he instead provided the important, offense-specific information that the firearm charges in question would make the defendant presumptively removable, is a question for hearing. See id. Although counsel did not have to provide detailed immigration advice if the immigration consequences were not “truly clear,” in all events counsel had an obligation to provide offense-specific advice that accurately described the gravity of the immigration consequences for the particular guilty plea.
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Cf. DeJesus, 468 Mass. at 182 n.7 (“[A]dvice that one ‘faces’ deportation does not inform a client that deportation would be mandatory if one is apprehended by Federal authorities”).
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The defendants affidavits thus were sufficient to “cast doubt,” Denis, 442 Mass. at 629, and “an evidentiary hearing is required to address ambiguities and gaps in the affidavits.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 401 (2012). We of course express no opinion as to whether plea counsels performance fell “measurably below” the required standards. Saferian, 366 Mass. at 96.
b. Prejudice. The defendant has also demonstrated sufficient prejudice to warrant an evidentiary hearing. “[W]here a defendant claims that counsels ineffective assistance induced him to plead guilty, the defendant must demonstrate a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial” (quotation and citation omitted). DeJesus, 468 Mass. at 182-183. The defendant must also demonstrate that such a choice would have been “rational under the circumstances” (citation omitted). Id. at 183. A defendant may demonstrate that his choice to proceed to trial rather than accepting a guilty plea was rational in one of three ways:
“(1) he had an ‘available, substantial ground of defence,’ ․ that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; 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.”
Id., quoting Commonwealth v. Clarke, 460 Mass. 30, 46-47 (2011).
The defendants motion for new trial made arguments as to all three methods of demonstrating prejudice. The motion judges order, however, did not address all three arguments, but rather focused solely on the “very favorable plea” the defendant received, which (the judge believed) allowed the defendant to avoid the ten-year mandatory minimum sentence for the ACC enhancement.
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The judges order did not discuss the defendants allegations regarding his ties to the United States.
At minimum, the defendant made adequate allegations to raise a substantial issue as to the third avenue of demonstrating prejudice -- special circumstances indicating he placed particular emphasis on immigration consequences when deciding to plead guilty. The defendant and his sister averred that the defendant has lived in the United States since he was seven years old, his entire family including two young children and his mother lives in the United States, he has no ties to Cape Verde, and he has maintained employment in the United States. Such evidence regarding family and employment ties to the United States may establish “special circumstances showing that the defendant placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty” (quotation omitted). DeJesus, 468 Mass. at 183-184.
Although the case against the defendant on the possession charges was strong, assessment of a plea agreement must recognize that “[p]reserving the clients right to remain in the United States may be more important to the client than any potential jail sentence” (citation omitted). Padilla, 559 U.S. at 368. The defendant alleged that this is the case here, stating:
“I would rather have taken my chances at trial than to have voluntarily made myself per se mandatorily deportable from [the] United States․ I would have pursued every possible option to avoid being separated from my daughters and the rest of my family.”7
As with the averments regarding counsels performance, these factual averments were sufficient to raise a substantial issue meriting an evidentiary hearing on his motion for new trial. See Henry, 88 Mass. App. Ct. at 456. As indicated previously, we express no view on the ultimate outcome.
We vacate the order denying the defendants motion to withdraw his guilty pleas or for a new trial, and remand the matter to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded
FOOTNOTES
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. As the two predicate offenses for the ACC enhancement, the indictment listed a 2003 conviction of assault to rob and a 2007 conviction of possession of a class B substance with intent to distribute.
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. The judge also ordered that the term of the defendants probation would be reduced to two years if the defendant earned his GED while incarcerated.
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. At argument, the defendants appellate counsel took the position that the defendants removal was “mandatory,” but also stated that the cancellation of removal process is available to the defendant, as he did not commit an aggravated felony. 8 U.S.C. § 1229b(a)(3) (permanent residents convicted of aggravated felonies ineligible for cancellation); 8 U.S.C. § 1101(a)(43) (defining aggravated felony). The opportunity for cancellation of removal is important; this court has “held that the opportunity to petition for cancellation of removal is a ‘serious benefit’ ” (citation omitted). Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 398 (2012). On remand, the parties and the judge should address the law as to the immigration consequences the defendant faced as a result of his pleas, what was and was not “truly clear” in the law, and whether plea counsel provided adequate legal advice under the circumstances.
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. The motion judge concluded that the affidavits submitted by the defendant and the defendants sister were contradictory, and that even if true, the statements described in the defendants affidavit would not constitute ineffective assistance of counsel. While “a motion judge need not accept statements in the defendants affidavits as true, even if the statements are undisputed,” Lys, 481 Mass. at 5, here we think the judges conclusions are not borne out by the record. Although the affidavits of the defendant and his sister contain a couple of discrepancies, those differences are minor and are not such that the judge could discount the affidavits based upon the discrepancies alone. And while it is true that the alleged statements of plea counsel might not have been improper if accompanied by the necessary advice that the guilty plea would render the defendant presumptively deportable, standing alone the advice would not have been sufficient.
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. We note that the Commonwealth appropriately conceded at argument that avoiding the ACC enhancement would not have been a substantial benefit of the plea agreement, as the predicates for its application could not have been proven at trial. The ACC enhancement carrying a ten-year mandatory minimum sentence required proof that the defendant had been “previously convicted of two violent crimes, or two serious drug offenses or one violent crime and one serious drug offense, arising from separate incidences.” G. L. c. 269, § 10G (b). One of the predicate offenses listed in the indictment -- a 2007 conviction of possession of a class B substance with intent to distribute -- was apparently a conviction of possession of a counterfeit substance with intent to distribute; a different Superior Court judge previously had indicated that this conviction was not sufficient to be an ACC predicate, when the defendant raised this same issue in a prior case. As to the other predicate offense -- a juvenile adjudication for assault to rob -- such a juvenile offense can only be an ACC predicate if the juvenile used a deadly weapon during the crimes commission. Commonwealth v. Anderson, 461 Mass. 616, 631-632 (2012). The Commonwealth conceded that the defendant did not use such a weapon during the 2003 assault.
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. The motion judge reasoned in his order that the defendant received immigration warnings from the plea judge and signed a waiver of rights form containing immigration warnings. Such warnings are not “an adequate substitute for defense counsels professional obligation to advise her client of the likelihood of specific and dire immigration consequences that might arise from such a plea,” but “may be relevant to the prejudice prong.” Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 724 n.3 (2012), quoting Clarke, 460 Mass. at 49 n.20. As discussed supra however, under our case law these conditional warnings were not sufficient to convey that these guilty pleas would render the defendant presumptively deportable, and the defendant may have relied on his attorneys (alleged) statements to the contrary.