Commonwealth v. Lavrinenko , 473 Mass. 42 ( 2015 )

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SJC-11792
COMMONWEALTH vs. PAVEL LAVRINENKO.
Hampden. April 7, 2015. - October 5, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Alien. Constitutional Law, Plea, Assistance of counsel. Due
Process of Law, Plea, Assistance of counsel. Practice,
Criminal, Plea, Assistance of counsel.
Complaint received and sworn to in the Springfield Division
of the District Court Department on April 11, 2005.
A motion to withdraw a plea of guilty, filed on December 3,
2013, was heard by John M. Payne, Jr., J.; a motion for
reconsideration was also heard by him, and a second motion for
reconsideration was considered by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Merritt Schnipper for the defendant.
Cynthia Cullen Payne, Assistant District Attorney (Jane
Davidson Montori, Assistant District Attorney, with her) for the
Commonwealth.
Wendy S. Wayne & Jennifer Klein, Committee for Public
Counsel Services, & Laura Murray-Tjan, for Committee for Public
Counsel Services, amicus curiae, submitted a brief.
2
GANTS, C.J. The issue on appeal is whether a noncitizen
defendant, admitted into the United States as a refugee, is
entitled to withdraw his guilty plea to a complaint charging
assault by means of a dangerous weapon, where his attorney did
not make a reasonable inquiry regarding the defendant's
citizenship, and therefore did not learn that he was a refugee.
We conclude that, under art. 12 of the Massachusetts Declaration
of Rights, constitutionally effective representation of a
criminal defendant requires defense counsel to make a reasonable
inquiry of the defendant to determine whether he or she is a
citizen of the United States and, if the defendant is not, to
make a reasonable inquiry into the defendant's immigration
status, including whether the defendant was admitted into this
country as a refugee or has been granted asylum.
We also conclude that, in determining whether a defendant
suffered prejudice from counsel's deficient performance,
"special circumstances" regarding immigration consequences, as
contemplated in Commonwealth v. Clarke, 460 Mass. 30, 47-48
(2011), should be given substantial weight in determining, based
on the totality of the circumstances, whether there is a
reasonable probability that the defendant would have rejected
the plea offer and insisted on going to trial had counsel
provided competent advice regarding the immigration consequences
of the guilty plea. Moreover, a defendant's status as a refugee
3
or an asylee is a special circumstance entitled to particularly
substantial weight. Because the motion judge found that
counsel's performance was deficient but did not consider the
defendant's refugee status in finding that the defendant
suffered no prejudice, we vacate the denial of the motion for a
new trial and the motions for reconsideration, and remand the
matter to the District Court for further proceedings consistent
with this opinion.1
Background. The following facts are drawn from the motion
judge's findings of fact, supplemented with details from the
record where they are consistent with the judge's findings.
The defendant was born in Novokuznetsk, Russia, and came to the
United States with his parents and two siblings in 2000 at the
age of thirteen. They had left Russia to escape religious
persecution as Pentecostal Christians, and were admitted into
the United States as refugees.
On April 10, 2005, when the defendant was seventeen years
old, he operated a motor vehicle while intoxicated and crashed
into a streetlamp post. The defendant drove away, but police
officers observed the defendant's vehicle with heavy damage and
began following him in a marked police cruiser to perform a
1
We acknowledge the amicus brief submitted by the
Immigration Impact Unit of the Committee for Public Counsel
Services (CPCS).
4
motor vehicle stop. With the officers in pursuit, the
defendant's vehicle sped away but eventually struck a tree; the
defendant got out of the vehicle, ran, and jumped into a nearby
river. After the police officers arrived at the river bank, the
defendant began moving back toward shore. According to the
police report, the officers observed the defendant holding a
"stick" as he approached them, and one of the officers ordered
the defendant to drop the stick several times. The defendant
continued to hold the stick "in a threatening manner" until an
officer used pepper spray on the defendant, and he dropped the
stick into the water and came on shore, where he was arrested.2
A complaint issued on April 11, 2005, charging the
defendant in the Springfield Division of the District Court
Department (Springfield District Court) with seven counts,
including driving while under the influence of alcohol, leaving
the scene of property damage, and assault by means of a
dangerous weapon (the stick).3 In addition, as a result of the
2
According to the defendant's affidavit, he held onto a
floating branch to steady himself in the strong river current,
as he was standing in cold water on a soft river bottom. He
could not hear anything that the officer said but used the
branch for balance as he moved toward the river bank. The
defendant attests that he never intended to hit or threaten a
police officer with the branch.
3
The defendant was also charged with failure to stop for
police, speeding, a motor vehicle equipment violation, and a
marked lanes violation.
5
defendant's conduct on April 10, the defendant was charged with
violating the conditions of probation that he was serving on a
continuance without a finding for knowingly receiving stolen
property. At the time, he also had pending charges in
Springfield District Court of malicious destruction of property
and attempt to commit a crime. As part of what the judge
described as a "global resolution" of all outstanding cases, the
defendant pleaded guilty on April 28 to the earlier charges of
malicious destruction of property and attempt, and was sentenced
to ninety days in a house of correction, to be served
concurrently. On April 29, he pleaded guilty to driving while
under the influence of alcohol, leaving the scene of property
damage, and assault by means of a dangerous weapon; he also
admitted to the probation violation, and a guilty finding was
entered on the charge of knowingly receiving stolen property.4
He was sentenced on these charges to a total of ninety days in a
house of correction, with the sentences to be served
concurrently with each other and with the sentences imposed on
April 28.
4
The defendant also pleaded guilty to failing to stop for
police, and pleaded "responsible" for the motor vehicle
equipment violation, speeding, and the marked lanes violation;
all four charges were placed on file with the defendant's
consent.
6
On October 31, 2012, the defendant was detained by United
States Immigration and Customs Enforcement and subsequently
placed in removal proceedings. An immigration judge granted the
defendant's application for adjustment of status to lawful
permanent resident, but the United States Department of Homeland
Security appealed the decision, and the board of immigration
appeals remanded the case for further proceedings to determine
whether the defendant is a "violent or dangerous" individual.
On December 3, 2013, the defendant filed a motion to
withdraw his guilty plea to the charge of assault by means of a
dangerous weapon. The judge who had accepted the defendant's
guilty plea in 2005 conducted a nonevidentiary hearing, and
denied the motion. After the defendant filed a motion for
reconsideration, the judge held an evidentiary hearing during
which the defendant, the defendant's criminal defense attorney
at the time of his guilty plea (plea counsel), and the
defendant's immigration counsel testified.
Although plea counsel could not remember whether he advised
the defendant about immigration consequences, he explained that,
as a matter of course, he gave a standard warning to all of his
clients that essentially repeated the same warnings included in
the "green sheet," that is, the District Court Department's
7
preprinted "Tender of Plea or Admission Waiver of Rights" form.5
That form, which the defendant signed on the day of his guilty
plea, included the following statement: "I understand that if I
am not a citizen of the United States, conviction of this
offense may have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization,
pursuant to the laws of the United States."6 Plea counsel
testified that he typically prefaced the discussion of
immigration consequences with a client by stating that he did
not know the client's immigration status and "it wasn't really
[his] concern." He would then tell the client that he did not
know whether the client had "any immigration concerns at all,"
5
In his affidavit, the defendant's criminal defense
attorney at the time of the defendant's guilty plea (plea
counsel) stated, "I have no specific recollection of discussing
potential immigration consequences of a guilty plea with [the
defendant], but it was at that time and has always been my
practice to advise all criminal defense clients that if they
were not United States citizens, deportation was a risk as a
result of a criminal conviction."
6
This statement in the defendant's waiver of rights form
mirrors the warning that a judge is required by statute to
provide a defendant during the plea colloquy. See G. L. c. 278,
§ 29D ("The court shall not accept a plea of guilty . . . from
any defendant in any criminal proceeding unless the court
advises such defendant of the following: 'If you are not a
citizen of the United States, you are hereby advised that the
acceptance by this court of your plea of guilty . . . may have
consequences of deportation, exclusion from admission to the
United States, or denial of naturalization, pursuant to the laws
of the United States'").
8
but would add, "[I]f you're convicted of any offense . . . you
could be deported or excluded."7
Plea counsel further testified that, unless "there was some
red flag" or an issue that the client brought to his attention,
he would give this standard advice regardless of the particular
charges in the case. He noted that, if the client "brought
something to [his] attention and [he] thought that it might be
. . . in [the client's] best interests to do some further
research, [he has] done that over the years." However, he was
not aware at the time of the defendant's plea of any immigration
law issues specific to refugees and did not "remember ever
having a discussion with any client regarding refugee status."
The judge acknowledged that he possessed "no independent
memory of this defendant or the events surrounding the plea,"
and found that neither the defendant nor plea counsel had
significant memory of any discussions regarding immigration
issues. Thus, it was unclear "what if any immigration warnings
were discussed between the defendant and [plea counsel]." The
judge found that "it is clear that the issue of the defendant's
7
The defendant testified that he did not tell plea counsel
about his immigration status and did not receive advice about
immigration consequences. The defendant did not remember
whether plea counsel asked him about his immigration status.
9
refugee status was not addressed," and for that reason,
counsel's performance was deficient.8
The judge, however, concluded that the defendant was not
prejudiced by the attorney's deficient performance because the
plea served as a "global resolution . . . offering a [lesser]
total period of incarceration." Considering that the defendant
"was facing the possibility of jail time possibly upwards of
[two and one-half years]" in a house of correction, the judge
found that "[t]here is every reason to believe that [the
defendant] was more than satisfied with the result at that time
and would have had little if any leeway in successfully
defending" the charges arising from the April 10, 2005, incident
to which he pleaded guilty. The judge denied the defendant's
motion for reconsideration and then denied a second motion for
reconsideration. The defendant appealed, and we granted his
motion for direct appellate review.
8
In his affidavit, plea counsel stated, "I have no specific
recollection of being aware of [the defendant's] refugee status
when I represented him on these charges, or of addressing any
refugee status-specific issues when I discussed the pros and
cons of a potential guilty plea with him. Refugee status-
specific advice was not part of the standard immigration
consequences discussion I would have with my criminal defense
clients." Furthermore, he stated, "I can affirmatively state
that I did not advise [the defendant] about the potential impact
of a guilty plea to the charge of assault with a dangerous
weapon on his eligibility for asylum in the United States."
10
Discussion. 1. Standard of review. "A motion to withdraw
a guilty plea is treated as a motion for a new trial pursuant to
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501
(2001)." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014),
citing Commonwealth v. Furr, 454 Mass. 101, 106 (2009). We
"examine the motion judge's conclusion only to determine whether
there has been a significant error of law or other abuse of
discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
In doing so, "[w]e accept the judge's findings of fact if
supported by the evidence, because the judge who heard the
witnesses testify is the 'final arbiter on matters of
credibility.'" DeJesus, supra, quoting Commonwealth v. Scott,
467 Mass. 336, 344 (2014).
2. Refugee status. Before turning to whether counsel's
performance was constitutionally deficient, we discuss the
defendant's refugee status and the immigration consequences at
issue in this case. Under Federal law, a noncitizen who is
outside the United States may be admitted into the United States
in the discretion of the United States Attorney General if
granted refugee status. See 8 U.S.C. § 1157(c) (2012) (subject
to limitations on number of refugees able to be admitted per
year, United States Attorney General may in his or her
discretion "admit any refugee who is not firmly resettled in any
foreign country, is determined to be of special humanitarian
11
concern to the United States, and is admissible").9 To be
admitted as a refugee, a noncitizen must meet the definition of
"refugee," as defined in the Immigration and Nationality Act
(act), that is, a person "who is unable or unwilling to return
to . . . [the person's country of origin] because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion."10 8 U.S.C. § 1101(a)(42) (2012).
Although not defined in either the act or the immigration
regulations, "persecution" generally means abuse that has
"reached a fairly high threshold of seriousness, as well as some
regularity and frequency." Ivanov v. Holder, 736 F.3d 5, 11
(1st Cir. 2013), quoting Rebenko v. Holder, 693 F.3d 87, 92 (1st
Cir. 2012). See Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir.
9
Under a related provision of the Immigration and
Nationality Act (act), a noncitizen who is present in the United
States may seek asylum to remain in the United States. See 8
U.S.C. § 1158 (2012) ("Any alien who is physically present in
the United States or who arrives in the United States . . . ,
irrespective of such alien's status, may apply for asylum").
10
The definition of "refugee" applies both to persons
outside of the United States seeking refugee status and to
persons inside the United States seeking asylum. See 8 U.S.C.
§ 1158(b)(1)(A) (Secretary of Homeland Security or United States
Attorney General may grant asylum to noncitizen who has properly
applied if either "determines that such alien is a refugee
within the meaning of [the act]"). Here, the defendant had been
granted refugee status, but because persons granted asylum must
meet the definition of "refugee," the holding of this opinion
also applies to persons granted asylum.
12
2010) ("The 'severity, duration, and frequency of physical
abuse' are factors relevant to this determination, . . . as is
whether harm is 'systematic rather than reflective of a series
of isolated incidents'" [citations omitted]). The person
seeking refugee status "must also demonstrate that the
persecution he [or she] experienced occurred 'on account of' a
statutorily-protected ground," that is, race, religion,
nationality, membership in a particular social group, or
political opinion. Ivanov, supra at 12, quoting Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007).
Here, the defendant was admitted into the United States
with his family as a refugee, and his refugee status had not
been terminated at the time of the plea.11 Although he could not
remember in great detail how Pentecostal Christians had been
treated in Russia at the time he was granted refugee status, he
testified that he remembered churches were closing and his
family was not allowed to pray. At the nonevidentiary hearing
on the motion for a new trial, the defendant provided the judge
with a summary of various governmental and nongovernmental
entity reports, United States congressional resolutions, and
news articles on the conditions in Russia relevant to
11
It is unclear from the record whether the defendant's
refugee status was derivative of a parent's refugee status. See
8 U.S.C. § 1157(c)(2)(A) (2012); 8 C.F.R. § 207.7 (2011).
13
Pentecostal Christians. At the subsequent evidentiary hearing,
the defendant's immigration attorney testified to the
information he learned about the conditions in Russia through
reading these submissions. He stated that from the decade of
the 1990s through at least 2005, there had been violence brought
directly against Pentecostal Christians and their places of
worship, with a rise in church burnings between 2005 and 2006
that resulted in hearings by the United States Helsinki
Commission.12
3. Discretionary immigration relief. One year after a
refugee is admitted into the United States, he or she may be
eligible to adjust his or her status to be regarded as "lawfully
admitted to the United States for permanent residence," and
receive what is commonly known as a "green card." 8 U.S.C.
§ 1159(a) (2012). To adjust one's status from refugee to lawful
permanent resident, a refugee must satisfy the admissibility
12
At the evidentiary hearing, the judge allowed the
defendant's immigration attorney to testify about the summary of
country conditions de bene, and no motion to strike this
testimony was presented. See Mass. G. Evid. § 104(b) (2015)
("When the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding
that the fact does exist. The court may admit the proposed
evidence, de bene, on the condition that the proof be introduced
later. Evidence so admitted is subject to a motion to strike if
that proof is not forthcoming"). The judge did not refer to the
conditions in Russia for Pentecostal Christians in his findings
and order.
14
requirements of 8 U.S.C. § 1182 (2012). A noncitizen who has
committed two or more crimes "involving moral turpitude" is
inadmissible under § 1182(a)(2), and is deportable. See 8
U.S.C. § 1227(a)(2)(A)(ii) (2012) ("Any alien who at any time
after admission is convicted of two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and
regardless of whether the convictions were in a single trial, is
deportable"). The defendant in his immigration appeal did not
challenge the immigration judge's determination that he is
inadmissible and deportable because he committed two crimes
involving moral turpitude, specifically malicious destruction of
property and knowingly receiving stolen property.
However, even where, as here, a refugee is inadmissible and
deportable, the refugee may still seek an adjustment of status
from refugee to lawful permanent resident by applying for a
waiver of inadmissibility. See 8 U.S.C. § 1159(c) (2012). A
waiver of inadmissibility may be granted in the discretion of
the United States Attorney General or the Secretary of Homeland
Security "for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest." Id. Where a
refugee in removal proceedings obtains a waiver of
inadmissibility and adjusts his or her status from refugee to
lawful permanent resident, removal proceedings are terminated.
15
See Matter of Rainford, 201 I. & N. Dec. 598, 602 (B.I.A. 1992)
("the conviction which renders the respondent deportable . . .
will not preclude a showing of admissibility . . . , and . . .
if granted adjustment of status to lawful permanent resident,
the respondent will no longer be deportable on the basis of this
prior conviction"). See also Drax v. Reno, 338 F.3d 98, 113 (2d
Cir. 2003); United States v. Gonzalez-Roque, 301 F.3d 39, 42 n.1
(2d Cir. 2002). See generally R.D. Steel, Steel on Immigration
Law § 14:27, 586-588 (2014) ("Adjustment of status is a complete
remedy, since the [applicant] becomes a permanent resident and
the removal proceedings are terminated").
The United States Attorney General in 2002 published an
opinion that limited the availability of a discretionary waiver
of inadmissibility regarding refugees who are "violent or
dangerous individuals." In re Jean, 23 I. & N. Dec. 373, 383
(A.G. 2002). The Attorney General declared that it would not be
"a prudent exercise" of this discretion "to grant favorable
adjustments of status to violent or dangerous individuals except
in extraordinary circumstances, such as those involving national
security or foreign policy considerations, or cases in which an
alien clearly demonstrates that the denial of status adjustment
would result in exceptional and extremely unusual hardship."
Id. The Attorney General added that, "depending on the gravity
of the alien's underlying criminal offense, such a showing might
16
still be insufficient." Id. Under this opinion, refugees who
commit violent or dangerous crimes are not automatically barred
from obtaining a waiver, see Jean v. Gonzales, 452 F.3d 392, 397
(5th Cir. 2006), but their waiver request is subject to a
"heightened standard." Ali v. Achim, 468 F.3d 462, 466-467 (7th
Cir. 2006).
Here, the defendant argues that as a result of his guilty
plea to the charge of assault by means of a dangerous weapon, he
was subject to the heightened standard under In re Jean.
Because there are no facts showing any likelihood that the
defendant could meet the heightened standard, he claims that his
chances of receiving a waiver of inadmissibility and an
adjustment of status were extinguished by this guilty plea.
4. Ineffective assistance of counsel. The defendant
argues that his plea counsel provided ineffective assistance of
counsel by failing to adequately inform him of the immigration
consequences of pleading guilty to the charge of assault by
means of a dangerous weapon, and that his plea to that offense
should be vacated and a new trial ordered.13 To prevail, the
13
Alternatively, the defendant argues that if this court
does not grant his motion for a new trial, the case should be
remanded to the District Court for reconsideration, with
substantial weight given to his refugee status in determining
whether he should prevail on the claim of ineffective assistance
of counsel.
17
defendant bears the burden of showing that his attorney's
performance fell "measurably below that which might be expected
from an ordinary fallible lawyer," and that he suffered
prejudice because of his attorney's unprofessional errors.
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Deficient performance. In determining the level of
performance required of an ordinary fallible lawyer, we look to
the "professional standards of the legal community." Clarke,
supra at 45. See Padilla v. Kentucky, 559 U.S. 356, 366 (2010)
("We long have recognized that '[p]revailing norms of practice
as reflected in American Bar Association standards and the like
. . . are guides to determining what is reasonable'" [citation
omitted]). "The weight of prevailing professional norms
supports the view that counsel must advise [his or] her client
regarding the risk of deportation." Id. at 367. See
Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013) ("under art.
12 [of the Massachusetts Declaration of Rights] defense counsel
must accurately advise a noncitizen client of the deportation
consequences of a guilty plea or a conviction at trial").
Just as the ordinary physician must take a history from the
patient before rendering a diagnosis, so, too, must the ordinary
criminal defense attorney make a reasonable inquiry of his or
her client regarding the client's history, including whether he
18
or she is a citizen of the United States. See Clarke, 460 Mass.
at 45-46, citing National Legal Aid and Defender Ass'n,
Performance Guidelines for Criminal Representation § 2.2(b)(2)
(1995), and General Policies Applicable to all Assigned Counsel,
CPCS Performance Standards Governing Representation of Indigents
in Criminal Cases, §§ 2.2, 4.1, 5.4(o) (rev. 2004) ("National
and Massachusetts performance guidelines require criminal
defense counsel to interview a defendant and gather significant
personal information in order to represent him"). Unless a
criminal defense attorney knows whether a defendant is a United
States citizen, the attorney cannot properly evaluate the
likelihood that the defendant will face immigration
consequences, investigate potential avenues of relief, minimize
such consequences through plea negotiations, or understand how
highly the defendant values staying in the United States. See
Clarke, supra at 46 ("That the defendant's counsel failed to
ascertain that the defendant was not a United States citizen may
be sufficient to satisfy the first prong of the Saferian
standard because effective representation requires counsel to
gather at least enough personal information to represent him").
Where a criminal defense attorney learns that his or her
client is a noncitizen, the attorney must make further
reasonable inquiry of the client to determine, where possible,
the client's immigration status. See L. Rosenberg, D.
19
Kanstroom, & J.J. Smith, Immigration Consequences of Criminal
Proceedings 2-3 (2011) ("The first specific problem facing the
criminal law practitioner who encounters a noncitizen in
criminal proceedings is to determine as accurately as possible
the person's exact legal status under the immigration laws of
the United States"); American Bar Association Criminal Justice
Standards for the Defense Function, Standard 4-5.5 (4th ed.
2015) (pending publication) ("Defense counsel should determine a
client's citizenship and immigration status, assuring the client
that such information is important for effective legal
representation and that it should be protected by the attorney-
client privilege"). See also D. Kesselbrenner & L. Rosenberg,
Immigration Law & Crimes § 1:4, at 5 (2015) ("Within th[e]
comprehensive category [of noncitizens], an individual
noncitizen has a more specific immigration status, which is a
relevant factor to the practitioner representing him or her in
either the criminal or immigration arena, or in both").14
14
We recognize that there may be some circumstances in
which a reasonable inquiry of the client may not reveal the
client's citizenship or, more likely, the client's immigration
status, especially where the client has little formal education
or has intellectual, developmental, or mental health challenges.
See Padilla v. Kentucky, 559 U.S. 356, 379-380 & n.1 (2010)
(Alito, J., concurring in the judgment) ("it may be hard, in
some cases, for defense counsel even to determine whether a
client is an alien"). In these circumstances, a reasonable
inquiry may need to include an inquiry of family members of the
client regarding these matters.
20
Without making a reasonable inquiry of the client's
immigration status, defense counsel is not in an adequate
position to determine what advice is "available." Clarke, 460
Mass. at 46, quoting Padilla, 559 U.S. at 371 ("[i]t is
quintessentially the duty of counsel to provide [his or] her
client with available advice about an issue like deportation").
See Benach, Zota, & Navarro, American Bar Association, Section
of Litigation, How Much to Advise: What Are the Requirements of
Padilla v. Kentucky (2013) (practice advisory on Padilla stating
that "[a] correct analysis of the actual immigration
consequences of a plea depends upon numerous factors," including
"immigration status," because undocumented defendant may be
affected differently from lawful permanent resident).
Therefore, the failure of a criminal defense attorney to make a
reasonable inquiry of the client regarding his or her
citizenship and immigration status is sufficient to satisfy the
deficient performance prong of the ineffective assistance
analysis. See Clarke, supra. See also State v. Paredez, 136
N.M. 533, 539 (2004) ("We hold that criminal defense attorneys
are obligated to determine the immigration status of their
clients. If a client is a non-citizen, the attorney must advise
that client of the specific immigration consequences of pleading
guilty, including whether deportation would be virtually
certain").
21
It is especially important that a criminal defense attorney
learn whether his or her client was admitted into this country
as a refugee. "[D]eportation is an integral part -- indeed,
sometimes the most important part -- of the penalty that may be
imposed on noncitizen defendants who plead guilty to specified
crimes." Padilla, 559 U.S. at 364. Where the client was
admitted into this country as a refugee, the consequence of
deportation might be especially severe, because the client
obtained such status only after the immigration authorities
determined that he or she faced persecution on account of race,
religion, nationality, membership in a particular social group,
or political opinion in his or her country of origin. Because
that persecution may result in many forms of harm or suffering,
including potentially death or serious injury, the avoidance of
deportation may be of immense importance to a refugee. See id.
at 370 n.11 ("were a defendant's lawyer to know that a
particular offense would result in the client's deportation and
that, upon deportation, the client and his [or her] family might
well be killed due to circumstances in the client's home
country, any decent attorney would inform the client of the
consequences of his [or her] plea").
Here, although plea counsel had little memory of his
representation of the defendant, he admits that in 2005 it was
not his usual practice to ask clients facing criminal charges
22
whether they were noncitizens, and that his usual practice was
simply to give all of his clients a standard warning on
immigration consequences. It is not sufficient for a criminal
defense attorney, as a matter of practice, merely to give the
same warning that the defendant will receive from the judge
during the plea colloquy required by G. L. c. 278, § 29D. See
Clarke, 460 Mass. at 48 n.20 ("[T]he receipt of such warnings is
not an adequate substitute for defense counsel's professional
obligation to advise [his or] her client of the likelihood of
specific and dire immigration consequences that might arise from
such a plea"). See also DeJesus, 468 Mass. at 177 n.3.
The motion judge also found that the defendant's refugee
status was not "addressed." Plea counsel had no recollection of
being aware of the defendant's refugee status; he testified that
refugee status would have been a "red flag" that, at a minimum,
would have caused him to conduct further research. Because plea
counsel failed to make a reasonable inquiry of the defendant to
learn of this "red flag," counsel failed to learn what he needed
to know to advise his client competently regarding the
immigration consequences of a guilty plea. See Strickland v.
Washington, 466 U.S. 668, 691 (1984) ("counsel has a duty to
make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary"). Cf.
Commonwealth v. Lang, 473 Mass. , (2015) (Hines, J.,
23
concurring) (defense counsel's performance is deficient where he
or she is aware of information that may call into question
defendant's criminal responsibility but declines to investigate
or otherwise consider defendant's mental condition).15
b. Prejudice. "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.'" Clarke, 460 Mass.
15
We recognize that the ordinary, fallible criminal defense
attorney may not be an expert on immigration law, but we expect
such an attorney who learns of a complex immigration issue
either to research the applicable immigration law or to seek
guidance from an attorney knowledgeable in immigration law. See
American Bar Association Criminal Justice Standards for the
Defense Function, Standard 4-5.5 (4th ed. 2015) (pending
publication) ("If defense counsel determines that a client may
not be a United States citizen, counsel should investigate and
identify particular immigration consequences that might follow
possible criminal dispositions. Consultation or association
with an immigration law expert or knowledgeable advocate is
advisable in these circumstances. Public and appointed
defenders should develop, or seek funding for, such immigration
expertise within their offices"). See also CPCS, Immigration
Impact Unit, https://www.publiccounsel.net/iiu
[http://perma.cc/3D3Y-NFT2] (inviting CPCS staff attorneys and
bar advocates to fill out intake form to seek assistance in
"analyzing the immigration consequences for a client");
Immigration Defense Project, Hotline,
http://immigrantdefenseproject.org/hotline
[http://perma.cc/F54J-YVBU] (free hotline that offers "criminal-
immigration analyses to criminal defenders, immigration
advocates, and immigrants and their loved ones"). Cf. State v.
Sandoval, 171 Wash. 2d 163, 172 (2011) ("counsel was required to
correctly advise, or seek consultation to correctly advise, [the
defendant] of the deportation consequence").
24
at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). "At a
minimum, this means that the defendant must aver that to be the
case." Clark, supra. Additionally, the defendant 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 judge must
determine, based on the credible facts, whether there is a
reasonable probability that a reasonable person in the
circumstances of the defendant would have chosen to go to trial
had he or she received constitutionally effective advice from
his or her criminal defense attorney regarding the immigration
consequences of a guilty plea.16 Clarke, supra. See Ferrara v.
United States, 456 F.3d 278, 294 (1st Cir. 2006) ("The
elementary question is whether a reasonable defendant standing
in the petitioner's shoes would likely have altered his [or her]
decision to plead guilty . . ."). See also Commonwealth v.
Scott, 467 Mass. 336, 361 (2014) (prejudice standard in Clarke
16
In making this determination, a judge may evaluate the
credibility of the defendant and other witnesses in determining
the facts, but a judge does not evaluate the credibility of the
defendant's assertion that he or she would have gone to trial
had the defendant known then what the defendant knows now.
Rather, a judge must evaluate that assertion under a reasonable
person standard, because a judge cannot evaluate whether the
defendant is telling the truth about a decision the defendant
never made.
25
"is identical to, and draws from the same source as, the
standard in Ferrara").
To prove that rejecting the plea would have been rational
under the circumstances, "the defendant bears the substantial
burden of showing that (1) he [or she] had an 'available,
substantial ground of defence,' . . . that would have been
pursued if he [or she] 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;[17] 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. Here, the defendant attests that he would not
have pleaded guilty to the assault by means of a dangerous
weapon charge had he been advised of its immigration
consequences; he does not challenge his plea to the other
counts, or his plea in the other cases.
17
Because the defendant does not contend that there is a
"reasonable probability that a different plea bargain . . .
could have been negotiated," we do not address this possibility.
Commonwealth v. Clarke, 460 Mass. 30, 47 (2011).
26
Having so attested, the defendant argues that, had he been
properly advised of the immigration consequences, there is a
reasonable probability that a reasonable person in his
circumstances would have chosen to go to trial on the assault by
means of a dangerous weapon charge for two reasons. First, he
contends that he had a substantial defense to this charge.
"Under the common law, an assault may be accomplished in one of
two ways -- either by an attempted battery, or by putting
another in fear of an immediately threatened battery."
Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000). The
defendant correctly asserts that, under the circumstances
described in the police report, the Commonwealth in this case
would have needed to proceed under the theory of an immediately
threatened battery. "Under the immediately threatened battery
category, what is essential is that the defendant intended to
put the victim in fear of imminent bodily harm, not that the
defendant's actions created a generalized fear . . . in the
victim." Id. at 248-249. "The victim's apprehension of
imminent physical harm must be reasonable." Commonwealth v.
Werner, 73 Mass. App. Ct. 97, 102 (2008). "In determining
whether an apprehension of anticipated physical force is
reasonable, a court will look to the actions and words of the
defendant in light of the attendant circumstances."
Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
27
The defendant argues that, where the police report declares
that the defendant "dropped the stick into the water and came on
shore" after the officer, who was on the river bank, used pepper
spray on him, the defendant had a substantial defense that the
officer reasonably could not have been in fear of imminent
bodily harm. In addition, the defendant in his affidavit
attested that he simply held on to a "branch" he found floating
in the water to maintain his balance against the strong current
and soft river bottom in the cold water, and never intended to
threaten a police officer with the branch.
The judge made no factual findings as to whether this was a
substantial defense, or as to the credibility of the assertions
in the police report.18 Specifically, he made no finding as to
whether the defendant held a "stick" or a "branch" in the water
(or as to its size), or how far from shore the defendant was
18
The defendant initially sought to vacate his plea to the
charge of assault by means of a dangerous weapon based in part
on the claim that the Commonwealth had failed to proffer
evidence at the plea hearing sufficient to support each of the
elements of this charge. The judge, in denying the defendant's
motion for a new trial, addressed this claim by rejecting it
"summarily." In the motion for reconsideration, the defendant
focused on the claim that he was not advised of the immigration
consequences of a plea to this charge. In denying this motion,
the judge found only that the defendant "would have had little
if any leeway in successfully defending the outcome of Docket
#0523CR2847," but this case docket includes all the counts,
including the counts of operating while under the influence and
leaving the scene of property damage, for which the defendant
had no substantial defense.
28
when he dropped it. Without these credibility determinations
and factual findings, which would require a new evidentiary
hearing, we cannot determine whether a reasonable person in the
defendant's position in 2005 would have thought he or she had a
substantial defense to this charge.19
Second, the defendant contends that his refugee status
alone established the presence of "special circumstances," and
that the presence of special circumstances necessarily
establishes prejudice. We agree that a defendant's refugee
status is a special circumstance and that the presence of
special circumstances alone might establish prejudice, but we do
not agree that the presence of special circumstances alone
necessarily establishes prejudice.
We have recognized that, in evaluating a proposed plea
offer, "a noncitizen defendant confronts a very different
calculus than that confronting a United States citizen."
DeJesus, 468 Mass. at 184. "For a noncitizen defendant,
preserving his [or her] 'right to remain in the United States
19
To show that a "substantial defense" was available, the
defendant need not show that it was more likely than not that
such a defense would have resulted in acquittal. See United
States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011), abrogated on
other grounds by Chaidez v. United States, 133 S. Ct. 1103
(2013) ("The Supreme Court . . . requires only that a defendant
could have rationally gone to trial in the first place, and it
has never required an affirmative demonstration of likely
acquittal at such a trial as the sine qua non of prejudice").
29
may be more important to [him or her] than any jail sentence.'"
Id., quoting Padilla, 559 U.S. at 368. "Thus, a determination
whether it would be rational for a defendant to reject a plea
offer 'must take into account the particular circumstances
informing the defendant's desire to remain in the United
States.'" DeJesus, supra, quoting People v. Picca, 97 A.D.3d
170, 183-184 (N.Y. 2012).
A defendant may fervently desire to remain in the United
States because of the depth and quality of the roots he or she
has planted in this country. For example, in DeJesus, supra at
183-184, the defendant established special circumstances where
he "had a lot to lose if he were to be deported," considering
that "he had been in the country since he was eleven years old,
his family was in Boston, and he had maintained steady
employment in the Boston area." Where the defendant is a
refugee, however, a judge must also consider that the defendant
might fervently desire to remain in the United States because of
what he or she might face if deported, that is, the risk of
persecution in his or her country of origin or the alternative
of being deported to a country that might never have been that
person's home, if that country would agree to accept that
person. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th
Cir. 2004), quoting Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987) ("deportation is a
30
'harsh measure . . . all the more replete with danger when the
alien makes a claim that he or she will be subject to death or
persecution if forced to return to his or her home country'").
See also 8 U.S.C. § 1231(b)(2) (2012) (procedure by which United
States Attorney General determines country where noncitizen
shall be removed); United States Department of Justice, Fact
Sheet: Asylum and Withholding of Removal Relief Convention
Against Torture Protections (Jan. 15, 2009) (relief in form of
"withholding of removal" prohibits removal to country where
noncitizen's life or freedom would be threatened, "but allows
removal to a third country where [the person's] life or freedom
would not be threatened"). Therefore, a defendant's refugee
status, by itself, is also a special circumstance.
But special circumstances do not necessarily require a
finding of prejudice. As stated in Clarke, 460 Mass. at 47-48,
special circumstances simply "support the conclusion" that the
defendant would have placed particular emphasis on immigration
consequences in deciding whether to plead guilty; their presence
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. The prejudice determination
rests on the totality of the circumstances, in which special
circumstances regarding immigration consequences should be given
substantial weight. See Ferrara, 456 F.3d at 294 ("The ultimate
31
aim, common to every case, is to ascertain whether the totality
of the circumstances discloses a reasonable probability that the
defendant would not have pleaded guilty absent the misconduct").
See also Clarke, supra at 48 n.19 (noting that in State v.
Sandoval, 171 Wash. 2d 163, 175, 176 [2011], court gave "heavy
weight" to fact that defendant had been "very concerned" about
risk of deportation). Because a defendant's refugee status is
the result of a prior determination by the Federal government
that deportation may be an especially severe and dangerous
consequence, refugee status is entitled to particularly
substantial weight in evaluating the totality of circumstances.
Thus, refugee status, in essence, is a "special" special
circumstance.20
20
A judge may consider other factors in the totality of the
circumstances analysis including, but not limited to, the
"defendant's assessment of the strength of the prosecution's
case in relation to [the defendant's] own case." People v.
Martinez, 57 Cal. 4th 555, 564 (2013). Where there are special
circumstances such as a defendant's refugee status that might
cause a defendant to fear deportation far more than a more
severe sentence upon conviction, there may be a reasonable
probability that a defendant would choose to go to trial even
without a substantial defense, based on the small chance that
the defendant would prevail at trial and avoid deportation. But
depending on the circumstances, where the evidence against a
defendant is so overwhelming that a defendant has virtually no
chance of prevailing at trial, the presence of special
circumstances might not be enough to show that it was reasonably
probable that the defendant would have forgone the benefits of a
plea offer in favor of proceeding to trial. See Clarke, 460
Mass. at 47 (defendant must show that decision to reject plea
bargain would have been "rational under the circumstances").
32
The judge may also consider "the risks faced by a defendant
in selecting a trial rather than a plea bargain." United States
v. Kayode, 777 F.3d 719, 726 (5th Cir. 2014). This may include
the risk that a conviction would result in a sentence at or
close to the "maximum allowable sentence had [the defendant]
gone to trial," Commonwealth v. Roberts, 472 Mass. 355, 365
(2015), or the risk that a conviction at trial would result in a
mandatory minimum sentence substantially more severe than the
sentence offered through a guilty plea to a lesser charge.
Additionally, a defendant who faces only a house of correction
sentence if convicted at trial may be more willing to forgo a
plea bargain to avoid the risk of deportation than a defendant
facing the possibility of a lengthy State prison sentence.
In some cases, the judge might also consider the extent to
which an acquittal at trial would reduce or eliminate the risk
of immigration consequences. A defendant who can eliminate the
risk of deportation through an acquittal is more likely to
insist on going to trial than a defendant who is deportable
regardless of the outcome at trial. See, e.g. People v. Haley,
96 A.D.3d 1168, 1169 (N.Y. 2012) (no prejudice where "regardless
of whether defendant pleaded guilty . . . , had been found
guilty after trial or had been acquitted, his status as a
deportable alien would not have been affected").
"Ultimately, a defendant's decision to tender a guilty plea
is a unique, individualized decision, and the relevant factors
and their relative weight will differ from one case to the
next." Roberts, supra at 365-366, quoting Commonwealth v.
Scott, 467 Mass. 336, 356 (2014). Under certain circumstances,
even the near certainty of a lengthy State prison sentence if
convicted may not deter a rational defendant from risking trial
to preserve the possibility of acquittal. See Padilla, 559 U.S.
at 368, quoting Immigration & Naturalization Serv. v. St. Cyr,
533 U.S. 289, 322 (2001) (preserving defendant's right to remain
in United States may be more important than "any potential jail
sentence"); Orocio, 645 F.3d at 645 (defendant facing ten-year
minimum sentence "rationally could have been more concerned
about a near-certainty of multiple decades of banishment from
the United States than the possibility of a single decade in
prison").
33
A refugee seeking a new trial on these grounds and the
prosecutor opposing the motion are entitled to offer evidence
regarding the scope and severity of persecution that the refugee
was likely to have faced in his or her country of origin at the
time of the plea had the refugee been deported, because this is
relevant to the importance a reasonable person in the
defendant's position would place on immigration consequences.
Because direct evidence of this nature is rarely practicable,
the same reliable hearsay information that an asylum officer may
consider in deciding an asylum application is admissible at an
evidentiary hearing in a refugee's motion for a new trial. See
8 C.F.R. § 208.12(a) (2011) ("asylum officer may rely on
material provided by the Department of State, other [United
States Citizenship and Immigration Services] offices, or other
credible sources, such as international organizations, private
voluntary agencies, news organizations, or academic
institutions").21
There is nothing in the judge's findings and order on the
defendant's motion for a new trial or for reconsideration that
suggests that he considered the defendant's refugee status in
21
A defendant with refugee status is not required to
present evidence establishing the country conditions at the time
of the plea for this special circumstance to receive
particularly substantial weight.
34
finding the absence of prejudice. The failure to consider this
special circumstance is an error of law that requires that the
judge's denial of the motion for a new trial and the motions for
reconsideration be vacated and the matter remanded.22
On remand, in deciding anew the question of prejudice, the
judge will need to consider that this motion for a new trial
differs from the more typical case where a defendant contends
that defense counsel did not give fair warning that "if Federal
authorities apprehended the defendant, deportation would be
practically inevitable." DeJesus, 468 Mass. at 181. Here, the
defendant does not seek to withdraw his guilty pleas to the
charges of malicious destruction of property and knowingly
receiving stolen property that formed part of the "global
resolution" of his pending matters, and he does not dispute that
these are crimes of moral turpitude that alone make him
22
The judge also appeared to err in finding no prejudice
because the defendant "was more than satisfied" with the plea
bargain "at that time." The question is not whether the
defendant was satisfied with the plea bargain at the time,
having received inadequate advice about the immigration
consequences of a conviction, but whether there is a reasonable
probability that, in the absence of counsel's errors, a
reasonable person in the defendant's position would have chosen
to go to trial on the assault by means of a dangerous weapon
charge rather than accept the plea offer. See Commonwealth v.
DeJesus, 468 Mass. 174, 184 (2014) (rejecting Commonwealth's
argument that defendant was not prejudiced because he "got a
very good deal" in receiving "straight probation when he was
facing a mandatory minimum sentence of five years of
incarceration").
35
deportable.23 In light of those other pleas, his plea to the
charge of assault by means of a dangerous weapon does not affect
whether he is deportable. Rather, the relevant immigration
consequence of his plea to that charge is the substantial risk
of losing a viable avenue for discretionary relief because,
unless the defendant is a "violent or dangerous" individual, a
defendant who is a refugee has such a viable avenue even where
the defendant has committed crimes of moral turpitude that
render him deportable. It was not clear in 2005 that a guilty
plea to assault by means of a dangerous weapon would classify
23
Because the defendant does not challenge whether
malicious destruction of property and knowingly receiving stolen
property are crimes of moral turpitude, we need not determine
whether they are. Although it was clear at the time of the plea
in 2005 that knowingly receiving stolen property was a crime
involving moral turpitude, see Goncalves v. Reno, 144 F.3d 110,
114 (1st Cir. 1998); Matter of L, 61 I. & N. Dec. 666, 668
(B.I.A. 1955), there is disagreement as to whether it was clear
in 2005 that malicious destruction of property involves moral
turpitude. See Da Silva Neto v. Holder, 680 F.3d 25, 30 (1st
Cir. 2012) (noting that there was "no case law directly on
point" in affirming conclusion of board of immigration appeals
that malicious destruction of property under Massachusetts law
is crime involving moral turpitude). See also Commonwealth v.
Balthazar, 86 Mass. App. Ct. 438, 442-443 (2014) (in 2009,
"legal research would have indicated" that malicious destruction
of property is crime involving moral turpitude); Hernandez-
Robledo v. Immigration & Naturalization Serv., 777 F.2d 536,
541-542 (9th Cir. 1985) (declining to announce per se rule that
every incident of property destruction involves moral turpitude,
but affirming determination of board of immigration appeals that
petitioner's conviction of malicious destruction of property
involved moral turpitude).
36
the defendant as "violent or dangerous" under In re Jean.24 But
it was clear at that time that, if the defendant were not
convicted of the charge of assault by means of a dangerous
weapon, there was virtually no risk that the defendant would be
subjected to the heightened standard regarding the grant of a
discretionary waiver of inadmissibility, because he had no prior
convictions for crimes that could be construed as violent or
dangerous. And it was also clear that, if he pleaded guilty to
this charge, there would be a substantial risk that, having
admitted to a violent crime, he would be subjected to the
24
The defendant argues that assault by means of a dangerous
weapon is a "crime of violence," as defined in 18 U.S.C. § 16
(2012), see Almon v. Reno, 214 F.3d 45, 46 (1st Cir. 2000), and
that it was clear in 2005 that a conviction of a "crime of
violence" necessarily classifies an individual as "violent or
dangerous." In re Jean, 23 I. & N. 373, 383 (A.G. 2002). There
was Federal precedential support for this position prior to the
defendant's plea. See Togbah v. Ashcroft, 104 Fed. Appx. 788,
794 (3d Cir. 2004) (Attorney General "created a heightened
standard for cases of aliens who are inadmissible due to their
convictions for crimes of violence" [emphasis added]). There
was also Federal precedential support for the proposition that
the two categories were not necessarily equivalent, and that an
immigration judge may look beyond the elements of the crime to
determine whether, based on the underlying facts, an individual
should be deemed "violent or dangerous." See In re Jean, supra
(heightened standard applies to violent or dangerous
"individuals," and United States Attorney General relied on
underlying facts of crime in finding refugee to be violent and
dangerous). Cf. Makir-Marwil v. Attorney General, 681 F.3d
1227, 1235 (11th Cir. 2012) ("Some crimes may be so serious and
depraved that the [immigration judge] need only consider the
elements of the offense to determine that the alien is violent
or dangerous. Sometimes the [immigration judge] may delve into
the facts and circumstances of the prior offenses to determine
whether the alien is violent or dangerous").
37
heightened standard and that, under that standard, he would have
virtually no chance of obtaining a discretionary waiver.
Therefore, the clear immigration consequence of the defendant's
plea to the assault by means of a dangerous weapon charge was
the substantial risk that he would lose a viable opportunity for
discretionary relief. The United States Supreme Court has
recognized, as do we, the significance of this immigration
consequence. See Padilla, 559 U.S. at 368, quoting Immigration
& Naturalization Serv. v St. Cyr, 533 U.S. 289, 323 (2001)
("'preserving the possibility of' discretionary relief from
deportation . . . 'would have been one of the principal benefits
sought by defendants deciding whether to accept a plea offer or
instead to proceed to trial'"). The motion judge must determine
whether the defendant was prejudiced by counsel not advising him
of this consequence.25
25
We recognize that in Padilla, 559 U.S. at 368-369, the
United States Supreme Court drew a distinction between "truly
clear" and unclear immigration consequences in determining what
advice counsel is required to offer. Here, the substantial risk
of losing a viable opportunity for discretionary relief is a
clear consequence of the defendant's plea to the charge of
assault by means of a dangerous weapon, and the consequence is
no less clear because it is a risk rather than a certainty.
Where, as here, the defendant is a refugee and deportable,
counsel should have advised the defendant of that risk. We need
not determine whether this result is dictated by Federal
constitutional law; it is sufficient that it is dictated by art.
12 of the Massachusetts Declaration of Rights.
38
Therefore, we remand the case to the District Court with
instructions to conduct an evidentiary hearing regarding
prejudice. In deciding whether there is a reasonable
probability that the defendant would have chosen to go to trial
on the charge of assault by means of a dangerous weapon had he
been competently advised of the immigration consequences of a
guilty plea, the special circumstance of the defendant's refugee
status must be given particularly substantial weight in the
totality of circumstances. Here, the critical factual
determination for the judge is what a reasonable defendant,
under the circumstances, would have estimated to be the chance
of acquittal on that charge had he gone to trial, bearing in
mind that, in light of the weight to be given to the defendant's
refugee status and the fact that the defendant faced only a
house of correction sentence if convicted in the District Court,
even a small chance of acquittal may be sufficient to show that
it was reasonably probable that a person in the position of the
defendant would have rejected the plea and insisted on going to
trial.
Conclusion. The orders denying the defendant's motion for
a new trial and the motions for reconsideration are vacated, and
the matter is remanded to the District Court for proceedings
consistent with this opinion.
So ordered.