MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2007 the defendant was charged with kidnapping and assault and battery by means of a dangerous weapon; he pleaded guilty to both charges in 2009. Thereafter, he was sentenced to serve five years to five years and one day in prison, to be followed by five years of probation.
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In 2014 the defendant moved to withdraw his guilty pleas based on his claim that he received ineffective assistance from his guilty plea counsel. The defendant appeals from the denial of that motion. We affirm.
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). “A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001).” Commonwealth v. Furr, 454 Mass. 101, 106 (2009). “A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). See Commonwealth v. Lopez, 426 Mass. 657, 662–663 (1998). Nonetheless, “[u]nder Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any time it appears that justice may not have been done. A motion for a new trial is thus committed to the sound discretion of the judge.” Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009).
Here, the defendant claims that his motion to withdraw his guilty plea should have been allowed because his plea counsel was ineffective for failing to provide him with adequate advice regarding the immigration consequences of his plea. In these circumstances, “the defendant bears the burden of showing that his attorneys performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that he suffered prejudice because of his attorneys unprofessional errors.” Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In the context of a claim brought under Padilla v. Kentucky, 559 U.S. 356 (2010), the prejudice showing requires the defendant to “establish[ ] 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.’ ” Clarke, supra at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Relative to the first prong, the defendant claims that plea counsel advised him that, “Immigration wont deport you because if they do, it would be like giving you a death sentence.” The defendant also claims that he was not made aware “that [his] kidnapping conviction constituted an aggravated felony,” the “charge subjected [him] to mandatory deportation,” and the “sentence ․ makes [him] ineligible for a discretionary form of relief from deportation called ‘cancellation of removal.’ ”
These claims are supported by affidavits from the defendant, as well as his family and friends, which the judge was not required to credit. See Commonwealth v. Lys, 481 Mass. 1, 5 (2018); Commonwealth v. Torres, 469 Mass. 398, 403 (2014). Also notably absent was an affidavit from plea counsel. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014) (motion judge “is entitled to draw a negative inference from the defendants failure to secure an affidavit from trial or plea counsel”). Given this, and the other arguments raised by the Commonwealth, we are doubtful that the defendant satisfied his burden under the performance prong of Saferian, but we need not resolve the question as the defendant cannot satisfy the second prong, i.e., the prejudice prong. See Clarke, 460 Mass. at 46-47.
While the defendant claims in his affidavit that he would have gone to trial had he been properly advised by his attorney, the record does not support that assertion as a reasonable probability. The plea judge provided the immigration warnings to the defendant. The defendant also signed the plea tender sheet, which noted that he had been advised that he was subject to adverse immigration consequences as a result of his pleas. Despite being warned of the adverse immigration consequences of his pleas, he still chose to plead guilty. While these warnings alone are “not an adequate substitute for defense counsels professional obligation to advise [his] client of the likelihood of specific and dire immigration consequences that might arise from such a plea,” they are relevant to the prejudice prong. Clarke, 460 Mass. at 48 n.20.
Furthermore, the plea judge carefully advised the defendant of all the constitutional and procedural protections he would be giving up if he chose to forgo a trial, but the defendant nonetheless chose to plead guilty. When the defendant admitted that he felt pressure, the judge told him if he did not want to plead guilty, the judge did not want him to do so, which the defendant understood. In fact, when the defendant voiced his concern about being properly represented, the plea judge spoke to his attorney at sidebar,
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and then permitted a nearly two-hour recess to allow the defendant and counsel to further discuss the matter. After the recess, the plea judge again explained to the defendant that the decision to either plead guilty, or to have a trial, was entirely his. The defendant then said he would plead guilty, and the judge again read the defendant the rights he would forgo by pleading guilty.
Even if the defendant could show that he would have chosen to go to trial, he must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S at 372. To prove this, “the defendant bears the substantial burden of showing that (1) he had an available, substantial ground of [defense] ․ 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.” Clarke, 460 Mass. at 47-48 (quotation, footnote omitted). If the defendant fails to establish any of the three factors, then he cannot establish prejudice. See Commonwealth v. Lastowski, 478 Mass. 572, 577-579 (2018). The defendant claims he has satisfied the third factor.
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We disagree.
Specifically, under the third factor, the defendant claimed that his refugee status would have prevented him from knowingly and voluntarily accepting a guilty plea that would subject him to mandatory deportation. Although a defendants refugee status may give rise to a special circumstance, that status alone does not mandate a finding of prejudice. See Lys, 481 Mass. at 10; Lavrinenko, 473 Mass. at 57. Instead, “[t]he prejudice determination rests on the totality of the circumstances, in which special circumstances regarding immigration consequences should be given substantial weight.” Lavrinenko, supra at 59. Whether a defendant has established his specific situation “might warrant a rational willingness to ‘roll the dice’ and opt for a trial, rather than to accept a plea bargain,” is a factual inquiry. Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 729 (2012).
As the motion judge concluded, the totality of the circumstances leads to the conclusion that it was rational for the defendant to choose to plead guilty, regardless of the immigration consequences. The Commonwealths case was very strong.
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If the defendant had been found guilty after trial, he faced a possible ten-year sentence on each indictment in addition to the immigration consequences he now faces. In other words, by pleading guilty, the defendant obtained a significantly more lenient sentence -- by at least as much as one-half -- than the time he might have received after trial. See Chleikh, 82 Mass. App. Ct. at 729. Thus, the motion judge properly rejected the defendants claim.
Order denying motion to withdraw guilty plea affirmed.
FOOTNOTES
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. Upon completion of his sentence, the defendant was transferred into Federal custody by Immigration and Customs Enforcement (ICE). In 2012, the defendant received a final order of removal from ICE. He continued to be detained by ICE while awaiting removal. The defendant filed an application for a writ of Federal habeas corpus and was released from ICE custody in 2013.
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. At sidebar, the plea judge questioned counsel about the defendants reluctance, and his counsel was concerned that any response by him might reveal privileged matters. Counsel did state his belief that the defendants “drama” was for the benefit of the twenty relatives that were present in the courtroom.
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. The defendant makes no argument relative to the other factors.
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. In addition to the testimony of the victim, who identified the defendant as the man who kidnapped her and threatened her with a knife, the Commonwealth would also have offered the testimony of the police officer who witnessed the crimes and chased the defendant, who “fled without his shoes.” When the defendant was apprehended, he did not have shoes and he possessed gloves (in September) and twine.