Commonwealth v. Jorge L. Santana. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1331
COMMONWEALTH
vs.
JORGE L. SANTANA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial, without an
evidentiary hearing, of his motion to withdraw his guilty plea
and for a new trial. He contends that (1) the judge erred by
denying the motion because the defendant established both that
plea counsel failed to advise him correctly of the immigration
consequences of his plea and that he was prejudiced by that
failure, and (2) the judge abused his discretion by acting on
the motion without conducting an evidentiary hearing. We
affirm.
Background. On the afternoon of June 5, 2017, Danvers
police detectives followed a Buick driven by a man whom they
knew to be a habitual drug user into a Market Basket parking
lot. Minutes later, the defendant pulled up to the Buick in his
Honda CRV. Detectives saw "[a]n item . . . tossed from the
Honda to the Buick and from the Buick to the Honda." The
defendant was stopped, searched, and found to be in possession
of a twist of heroin and $790 cash, including three "tightly
folded hundred dollar bills." He was arrested and charged with
possession with intent to distribute heroin.
In November 2018, after his motion to suppress was denied
and his case was scheduled for trial, the defendant pleaded
guilty. Based on an agreed recommendation, he was sentenced to
six months in the house of correction, suspended with probation
for one year. In February 2021, while returning to the United
States from the Dominican Republic, the defendant was stopped by
immigration officials and told that he faced deportation. In
April 2022, the defendant filed a motion to withdraw his guilty
plea and for a new trial, accompanied by his own affidavit and
an affidavit from plea counsel. After a nonevidentiary hearing,
the motion judge, who was also the plea judge, denied the motion
and the defendant subsequently appealed.
Discussion. "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). Such a motion "is addressed to the sound
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discretion of the [plea] judge, and . . . will not be reversed
unless it is manifestly unjust, or unless the [plea hearing] was
infected with prejudicial constitutional error." Commonwealth
v. Colon, 439 Mass. 519, 524 (2003), quoting Commonwealth v.
Russin, 420 Mass. 309, 318 (1995). See Commonwealth v.
Sylvester, 476 Mass. 1, 5 (2016) ("We review the denial of a
motion to withdraw a guilty plea to determine whether there has
been a significant error of law or other abuse of discretion"
[quotation and citation omitted]).
1. Ineffective assistance. To prevail on his claim of
ineffectiveness of counsel, the defendant must show: (1) that
counsel's conduct fell "measurably below that which might be
expected from an ordinary fallible lawyer"; and (2) that this
conduct "likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must
prove both deficient performance and prejudice" (emphasis
added). Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722
(2012). "We afford particular deference to a decision on a
motion for a new trial based on claims of ineffective assistance
where the motion judge was, as here, the trial judge."
Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
3
The defendant contends that his plea counsel was
ineffective because he failed to inform the defendant that his
plea would result in automatic deportation, loss of his
permanent resident status, and ineligibility for any relief in
Immigration Court. See Padilla v. Kentucky, 559 U.S. 356 (2010);
Commonwealth v. Clarke, 460 Mass. 30 (2011). He averred as much
in an affidavit filed with his new trial motion. However, the
plea judge did not credit the defendant's affidavit, because it
was self-serving and came years after the plea.1 See
Commonwealth v. Torres, 469 Mass. 398, 406 (2014) (defendant’s
affidavit did not raise substantial issue where record refuted
his only theory of ineffectiveness). Nor did the judge credit
plea counsel's affidavit supporting the defendant's contention
that the attorney's advice lacked the required specificity
regarding the immigration consequences of the plea. On the
contrary, based on his review of the courtroom recording of the
plea colloquy,2 which "refresh[ed] [his] independent recollection
1 We do not think it significant in the overall context of
the judge's decision that the judge indicated the affidavit came
four years after the plea when, in fact, it was signed just over
two and one-half years after the defendant pleaded guilty but
not filed until more than eight months thereafter.
2 During the plea colloquy, the judge and counsel had the
following exchange:
Judge: "Have you explained to your client the elements of
the charges against him and the potential penalties?
4
of this particular plea," and his handwritten notes on the
defendant's tender of plea form,3 the judge found that "[t]he
problem with plea counsel's affidavit is that it is contradicted
by what happened at the time of the plea." We accord the
judge's credibility determination particular deference given
that he had conducted the plea colloquy. See Commonwealth v.
Scott, 467 Mass. 336, 344 (2014). During the hearing on the
defendant's motion, the judge also noted,
"I don't ask [whether counsel has discussed immigration
consequences with the defendant] that often, and I asked
the question in this case and I ask the question in the
cases where it appears to me to be during the course of the
plea colloquy and the recitation of the facts that there
may very well be an immigration issue, and that's why I
examined counsel on that and I got that representation in
open court."
We thus discern no error in the judge's determination that plea
counsel's advice was not ineffective.
Even if we were to conclude that it was deficient, the
defendant has not demonstrated that he was prejudiced by plea
Plea counsel: "Yes, I have, Your Honor."
Judge: "And if there are any immigration consequences have
you discussed those pursuant to Commonwealth v. Clarke?"
Plea counsel: 'Yes, I have, Your Honor."
3 The judge wrote, "Alien rights given. Counsel has advised
immigration consequences."
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counsel's advice.4 "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 counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial" (quotation and citation
omitted). Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246-247
(2015). Moreover, the defendant must demonstrate that the
decision to insist on going to trial "would have been rational
. . . by showing that (1) he had an available, substantial
ground of defence . . .; (2) there is a reasonable probability
that a different plea bargain . . . could have been negotiated
at the time; or (3) the presence of special circumstances that
support the conclusion that [the defendant] placed, or would
have placed, particular emphasis on immigration consequences
when deciding to plead guilty" (quotations and citation
omitted). See id. at 247.
Here, the defendant does not press the argument that he had
an available, substantial ground of defense. Indeed, the
Commonwealth's case against the defendant was strong as police
4 Because he determined that plea counsel was not
ineffective, the motion judge did not reach prejudice.
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witnessed what amounted to a hand-to-hand transaction and then
found heroin and a large amount of cash on the defendant.5
However, the defendant asserts that plea counsel
nevertheless could have negotiated a plea to possession with
intent to distribute a Class A "unspecified" substance rather
than heroin, which would have "spared" him immigration
consequences. This argument fails for several reasons. First,
the defendant did not demonstrate that the Commonwealth would
have entertained such a resolution. See Commonwealth v. Coyne,
372 Mass. 599, 601 (1977) ("decision to negotiate with a
defendant about the terms of a guilty plea rests solely in the
prosecutor's discretion"). Appellate counsel also acknowledged
during the motion hearing and at oral argument in this court
that such a resolution is "rare," and was unable to cite a
single instance of such a disposition in Essex County, where the
plea occurred. Finally, the defendant provided no legal or even
anecdotal support for his claim that securing such a plea would,
in fact, protect him from any immigration consequences. We
therefore conclude that the defendant has failed to show a
"reasonable probability that a different plea bargain (absent
[immigration] consequences) could have been negotiated at the
time[.]" Clarke, 460 Mass. at 47.
5 Defendant's counsel properly acknowledged the strength of
the Commonwealth's case during the motion hearing.
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The defendant fares no better in his argument that he
demonstrated special circumstances. According to his affidavit,
at the time of the plea, the defendant was thirty one years old
and had emigrated from the Dominican Republic to the United
States three years earlier. His wife and two young children
already lived in the United States, but it is unclear for how
long. He was working full-time in asbestos removal for a
Cambridge-based company and his family relied on his income.
Although the defendant thus was able to show that he had strong
reasons to want to remain in the United States, the fact that
special circumstances may exist "does not require the conclusion
that there is a reasonable probability that the special
circumstances would have caused the defendant to choose to go to
trial." Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015).
Here, there was evidence to the contrary. The defendant's
affidavit states that he was "especially worried about [his]
family, because [he] was [their] primary source of financial
support" and that his attorney advised him that "the deal they
were offering [him] would allow [him] to keep working to support
[his] family." In fact, despite facing up to two and one-half
years in the house of correction, see G. L. c. 94C, § 32A, the
defendant received a sentence of only six months suspended with
one year of probation, and the sole condition was that he
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maintain employment. Thus, the negotiated plea allowed the
defendant to continue to work and support his family, which he
had identified as his main concern at the time of the plea. As
previously discussed, the case against the defendant was strong.
Moreover, his motion to suppress evidence already had been
denied. Under these circumstances, we conclude that the
defendant has failed to demonstrate that it would have been
rational due to special circumstances for him to have rejected
the plea and instead gone to trial.
2. Denial of evidentiary hearing. The defendant further
contends that the motion judge erred by denying the motion for a
new trial without conducting an evidentiary hearing. We
disagree.
"The decision to hold an evidentiary hearing on a motion
for a new trial is 'left largely to the sound discretion of the
judge.'" Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015),
quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).
"The judge may rule on the issue or issues presented by such
motion on the basis of the facts alleged in the affidavits
without further hearing 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). "In determining whether a
motion for a new trial warrants an evidentiary hearing, both the
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seriousness of the issue itself and the adequacy of the
defendant's showing on that issue must be considered."
Commonwealth v. Denis, 442 Mass. 617, 628 (2004).
A motion for new trial alleging ineffective assistance of
counsel "raises 'an issue of constitutional importance' that
readily qualifies as a serious issue" depending on the adequacy
of the showing with respect to that issue. Denis, 442 Mass. at
629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992).
Accordingly, "[a]lthough the motions and supporting materials
filed by a defendant need not prove the issue raised therein,
they must at least contain sufficient credible information to
cast doubt on the issue." Denis, supra.Here, the motion judge found that the defendant did not
make an adequate showing to warrant an evidentiary hearing
because he did not credit the affidavits of the defendant and
plea counsel. See Commonwealth v. Lys, 481 Mass. 1, 5 (2018)
(in determining whether motion and affidavits raise a
"substantial issue," "motion judge need not accept statements in
the defendant's affidavits as true, even if the statements are
undisputed"). The judge was entitled to make such a credibility
determination. Id. Moreover, plea counsel's affidavit
indicated what he "would have explained" to the defendant
regarding immigration consequences, suggesting that he did not
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have a specific memory of the advice he provided. Thus, the
judge did not abuse his discretion by denying the defendant's
motion for new trial without an evidentiary hearing.
Order denying motion to
withdraw plea and for new
trial affirmed.
By the Court (Meade, Blake &
Brennan, JJ.6),
Clerk
Entered: August 13, 2024.
6 The panelists are listed in order of seniority.
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