Commonwealth v. Lys

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SJC-12476
COMMONWEALTH vs. CHRIST O. LYS.
Middlesex. September 5, 2018. - November 19, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
Controlled Substances. Practice, Criminal, Plea, Assistance of
counsel, New trial. Constitutional Law, Plea, Assistance
of counsel. Due Process of Law, Plea, Assistance of
counsel. Alien.
Complaint received and sworn to in the Marlborough Division
of the District Court Department on January 18, 2012.
A motion for a new trial was heard by Robert G. Harbour, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Patrick N. Long for the defendant.
Gabriel Pell, Assistant District Attorney, for the
Commonwealth.
John P. Zanini, Assistant District Attorney, for District
Attorney for the Berkshire District & others, amici curiae,
submitted a brief.
LOWY, J. The defendant pleaded guilty in the District
Court to violating multiple controlled substances laws. He was
2
a lawful permanent resident who had emigrated from Haiti, and
his plea rendered him deportable.1 The Federal government
detained the defendant and initiated deportation proceedings
against him. The defendant then filed a motion for a new trial
pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1501 (2001), arguing that he had received ineffective assistance
of counsel. The defendant claimed, inter alia, that he would
not have pleaded guilty if his counsel had properly advised him
about the plea's immigration consequences. The motion judge,
who was also the plea judge, denied the motion after a
nonevidentiary hearing. The defendant appealed, and the Appeals
Court affirmed. Commonwealth v. Lys, 91 Mass. App. Ct. 718, 726
(2017). We allowed the defendant's application for further
appellate review.
In his written decision, the judge found that plea
counsel's performance was constitutionally deficient but that
the deficient performance did not prejudice the defendant. The
Commonwealth now contends that the judge's finding of deficient
1 The defendant was deportable under 8 U.S.C.
§ 1227(a)(2)(B)(i) (2012) (making aliens convicted of
most controlled substances laws deportable) and 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012) (making aliens convicted of
"aggravated felony" deportable). See Commonwealth v. Clarke,
460 Mass. 30, 32 n.2, 46 (2011). His aggravated felony
conviction also precluded him from applying to the United States
Attorney General for relief. See 8 U.S.C. § 1229b(a)(3) (2012).
3
performance was erroneous.2 The defendant contends that the
judge erroneously found a lack of prejudice. We do not reach
the merits of either issue. Rather, we conclude that the judge
(1) might have failed to recognize his discretion to credit or
discredit the defendant's affidavits as they pertained to plea
counsel's allegedly deficient performance, even in the absence
of an affidavit from plea counsel; and (2) failed to make
factual findings about whether special circumstances relevant to
the prejudice inquiry existed. Therefore, we vacate the denial
of the motion for a new trial and remand the case to the
District Court for proceedings consistent with this opinion.3
Background. 1. Plea. According to the prosecutor's
summary of the Commonwealth's allegations at the plea hearing
and other undisputed record materials, the defendant sold
marijuana and cocaine to an undercover police officer on various
occasions, often in a school zone; he offered to sell marijuana
2 Although the Commonwealth contests the judge's finding of
deficiency before this court, it did not contest that finding
before the Appeals Court. The defendant argues that we should,
therefore, not consider the issue. We disagree. Although the
Appeals Court accepted the judge's deficiency finding "for
purposes of [its] analysis," the court critiqued the judge's
reasoning. Commonwealth v. Lys, 91 Mass. App. Ct. 718, 721
(2017). Because the deficiency finding "was considered in the
Appeals Court, we will address the matter" (citation omitted).
Commonwealth v. Sepheus, 468 Mass. 160, 171 (2014).
3 We acknowledge the amicus brief submitted by several
district attorneys.
4
and cocaine to the same undercover officer multiple times; and
he conspired to violate controlled substances laws when he
distributed the cocaine.
The defendant faced a twenty-eight-count complaint. He
ultimately pleaded guilty to three counts of distributing
marijuana, G. L. c. 94C, § 32C (a); two counts of distributing
cocaine, G. L. c. 94C, § 32A (a), as amended through St. 2010,
c. 256, § 68; two counts of conspiring to violate controlled
substances laws, G. L. c. 274, § 7; thirteen counts of
attempting to distribute a class D substance, G. L. c. 274, § 6;
and two counts of attempting to distribute a class B substance,
G. L. c. 274, § 6. The judge sentenced the defendant to
eighteen months in a house of correction and a term of
probation.
As part of the plea, the Commonwealth entered nolle
prosequis with respect to four counts of violating a controlled
substances law near a school, G. L. c. 94C, § 32J, as amended
through St. 2010, c. 256, § 72; and dismissed two counts of
possessing cocaine, G. L. c. 94C, § 34, as amended through St.
2008, c. 387, § 5. Each school zone charge would have carried a
mandatory minimum sentence of two years in a jail or house of
correction, from and after the defendant's sentences on the
underlying drug crimes.
5
2. Motion for new trial. The defendant filed two
affidavits in support of his motion for a new trial, both of
which stated that plea counsel had not warned him about the
plea's immigration consequences. Neither plea counsel nor
motion counsel submitted affidavits.4 The judge observed in his
decision that plea counsel did not testify or provide an
affidavit and declared that, "[f]aced with this paucity of
factual information," "the [c]ourt feels strongly that it must
give the [d]efendant's and his [motion] [a]ttorney's
[a]ffidavits full credit."5 Accordingly, the judge found that
plea counsel had performed deficiently. But the judge went on
to find that this deficient performance did not prejudice the
defendant. Without making any factual findings, he concluded
that "the court does not find the presence of any special
circumstances" suggesting that the defendant would have placed
particular emphasis on immigration consequences when deciding
whether to plead guilty.
4 At the nonevidentiary motion hearing, motion counsel
provided unsworn testimony that she had asked plea counsel to
testify or aver as to whether he had discussed the plea's
immigration consequences with the defendant. According to
motion counsel, plea counsel refused her request.
5 There is no affidavit from the defendant's motion attorney
in the record. The term "Attorney's Affidavit[]" in the judge's
decision likely refers to the defendant's supplemental
affidavit.
6
Discussion. A motion for a new trial may be granted "if it
appears that justice may not have been done." Mass. R. Crim. P.
30 (b). We examine the granting or denial of a new trial motion
"only to determine whether there has been a significant error of
law or other abuse of discretion." Commonwealth v. Lavrinenko,
473 Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397
Mass. 303, 307 (1986). We extend "substantial deference" to a
motion judge who was also the plea judge. Commonwealth v.
Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v.
Grant, 426 Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003).
1. Performance. "Both art. 12 of the Declaration of
Rights of the Massachusetts Constitution and the Sixth Amendment
to the United States Constitution guarantee a right to the
effective assistance of counsel." Commonwealth v. Lykus, 406
Mass. 135, 138 (1989). To provide effective representation
under the Sixth Amendment, counsel must advise his or her
clients about a guilty plea's "truly clear" deportation
consequences.6 Padilla v. Kentucky, 559 U.S. 356, 369, 374
(2010). See Commonwealth v. Sylvain, 466 Mass. 422, 424 (2013)
6 The defendant here brings a claim for ineffective
assistance under only the Sixth Amendment to the United States
Constitution. Because we find that remand is necessary under
either the Sixth Amendment or art. 12 of the Massachusetts
Declaration of Rights, we once again "leave open the question of
what differences, if any, exist between the two standards."
Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985).
7
(Sylvain I), S.C., 473 Mass. 832 (2016) (applying same rule
under art. 12). "Here, as in Padilla, the consequences of the
defendant's plea were clear." Commonwealth v. Clarke, 460 Mass.
30, 46 (2011). See Commonwealth v. DeJesus, 468 Mass. 174, 180-
181 (2014).
The judge found that the performance of the defendant's
plea counsel was constitutionally deficient because plea counsel
did not explain the plea's immigration consequences to the
defendant. We do not review this decision's merits. Instead,
we remand because the judge might not have recognized his
discretion to credit or discredit the defendant's affidavits,
even in the absence of an affidavit from plea counsel. See
Commonwealth v. Lydon, 477 Mass. 1013, 1015 (2017) (remanding
when "judge did not recognize his discretionary authority");
Commonwealth v. Harris, 443 Mass. 714, 728, 733 (2005)
(remanding when judge "declin[ed] to exercise any discretion").
Under Mass. R. Crim. P. 30 (c) (3), as appearing in 435
Mass. 1501 (2001), a judge hearing a motion for a new trial must
first decide whether the defendant's motion and affidavits
present a "substantial issue." In making this determination, a
motion judge need not accept statements in the defendant's
affidavits as true, even if the statements are undisputed.
Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). Instead, a
motion judge should consider "both the seriousness of the issue
8
itself and the adequacy of the defendant's showing on that
issue." Commonwealth v. Denis, 442 Mass. 617, 628 (2004).
Although a defendant's motion and affidavits "need not prove the
issue raised," to be adequate "they must at least contain
sufficient credible information to cast doubt on the issue."
Id. at 629.
If a motion judge finds that the motion and affidavits do
not present a substantial issue, then "[t]he judge may rule on a
motion for a new trial without an evidentiary hearing." Id. at
628. If a motion judge finds that they do present a substantial
issue, then the judge must hold an evidentiary hearing. Vaughn,
471 Mass. at 404, quoting Commonwealth v. Chatman, 466 Mass.
327, 334 (2013), S.C., 473 Mass. 840 (2016) ("Only when the
motion and affidavits raise a 'substantial issue' is an
evidentiary hearing required"). Commonwealth v. Stewart, 383
Mass. 253, 257 (1981) (stating that if defendant's newly
discovered evidence raises substantial issue, then "he is
entitled to an evidentiary hearing").
Here, the defendant claimed in his affidavits that his plea
counsel did not explain to him the plea's immigration
consequences. "A claim of ineffective assistance of counsel
. . . readily qualifies as a serious issue." Denis, 442 Mass.
at 629. The judge, therefore, needed to consider only the
adequacy of the defendant's assertions when deciding whether the
9
defendant had raised a substantial issue. It is unclear whether
he did so. After stating that plea counsel did not provide an
affidavit or testify, the judge concluded that he "fe[lt]
strongly that [he] must give the [d]efendant's and his [motion]
[a]ttorney's [a]ffidavits full credit."
A motion judge may consider the absence of an affidavit
from allegedly ineffective counsel in the adequacy analysis.
But this failure need not create an inference that the
defendant's affidavit must be credited, as the judge here
suggested.7 Indeed, a motion judge in some circumstances may
infer that the absence of an affidavit from prior counsel makes
the statements in the defendant's affidavit less likely to be
true. See Vaughn, 471 Mass. at 405, quoting Commonwealth v.
Goodreau, 442 Mass. 341, 354 (2004) ("the judge may take into
account the suspicious failure to provide pertinent information
from an expected and available source"). But see Commonwealth
v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (lack of
affidavit from trial counsel does not, "by itself, defeat[] a
claim of ineffective assistance of counsel" when "successor
7 The defendant contends that the judge recognized his
discretion to credit or discredit the defendant's affidavits and
nonetheless credited them. But the decision's plain language
makes it equally plausible that the judge felt legally compelled
to fully credit the defendant's affidavits absent testimony from
plea counsel.
10
counsel filed affidavits attesting to plea counsel's lack of
cooperation").
Because the judge might have failed to recognize his
discretion to credit or discredit the defendant's affidavits in
the absence of an affidavit from plea counsel, we remand "with
instructions to provide findings relating to the issue of [plea
counsel's deficient performance] and, if necessary, to hold an
additional evidentiary hearing . . . for that purpose." Sylvain
I, 466 Mass. at 439. We emphasize that the judge on remand
should "provide some reasons for accepting or rejecting a
particular affidavit . . . to assist the appellate court in
understanding whether the judge acted within his or her
discretion." Vaughn, 471 Mass. at 405.
2. Prejudice. To show prejudice when seeking to withdraw
a guilty plea on the ground of ineffective assistance, a
defendant must provide sufficient "credible facts" to
demonstrate a reasonable probability that a reasonable person in
the defendant's circumstances would have gone to trial if given
constitutionally effective advice. Lavrinenko, 473 Mass. at 55.
See Clarke, 460 Mass. 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." Clarke, supra, citing Hill,
supra at 60. The defendant here stated in his affidavits that
he would have pursued other options, including going to trial,
11
had he known about his plea's immigration consequences.
Therefore, he satisfied this baseline requirement for raising an
issue of prejudice.
After establishing that a defendant has satisfied this
baseline requirement, a judge should proceed in two steps. The
first step is to determine whether the defendant has shown "that
a decision to reject the plea bargain would have been rational
under the circumstances." Clarke, 460 Mass. at 47, quoting
Padilla, 559 U.S. at 372. To prove rationality, the defendant
bears the "substantial burden" of showing at least one of the
following: (1) an available, substantial ground of defense that
the defendant would have pursued if given proper advice about
the plea's dire immigration consequences; (2) a reasonable
probability that the defendant could have negotiated a plea
bargain that did not include those dire immigration
consequences; or (3) special circumstances supporting the
conclusion that the defendant "placed, or would have placed,
particular emphasis on immigration consequences in deciding
whether to plead guilty." Clarke, supra at 47-48.
If the defendant fails to establish any of these three
Clarke factors, then the ineffective assistance of counsel claim
must fail for lack of prejudice. See Commonwealth v. Lastowski,
478 Mass. 572, 577-579; Clarke, 460 Mass. at 47-49. If the
defendant does establish at least one of the Clarke factors,
12
then the judge must move to the second step and evaluate
whether, under the totality of the circumstances, there is a
reasonable probability that a reasonable person in the
defendant's circumstances would have gone to trial if given
constitutionally effective advice. See Lavrinenko, 473 Mass. at
55, 59.
The judge here found that the defendant did not establish
any of the Clarke factors. Although the defendant argued before
the Appeals Court that the judge ruled improperly with regard to
all three factors, before this court he focuses only on special
circumstances. Therefore, we address only that issue. See
Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004) ("If
a new brief is filed [after further appellate review is
granted], it will be considered in lieu of the Appeals Court
brief"). See also Commonwealth v. Maguire, 476 Mass. 156, 156-
157 (2017).
The judge found a lack of special circumstances without
making any factual findings, stating only that "the court [did]
not find the presence of any special circumstances" "despite the
impassioned advocacy . . . regarding [the defendant's] history
of abuse at the hands of his father and lack of family in his
home [c]ountry." As the Appeals Court observed, it is
impossible to discern from this statement whether the judge
disbelieved the defendant's affidavits as they pertained to the
13
special circumstances analysis or whether he decided that the
defendant did not aver any facts that, even if believed, would
qualify as special circumstances. Lys, 91 Mass. App. Ct. at
725. Therefore, as with the deficiency finding, we remand "with
instructions to provide findings relating to the issue of
[special circumstances] and, if necessary, to hold an additional
evidentiary hearing . . . for that purpose." Sylvain I, 466
Mass. at 439.
We also provide guidance for the judge on remand with
regard to the special circumstances analysis. In evaluating
whether the defendant has established the existence of special
circumstances, a judge must consider collectively all of the
factors supporting the conclusion that the defendant "placed, or
would have placed, particular emphasis on immigration
consequences in deciding whether to plead guilty." Clarke, 460
Mass. at 47-48. In DeJesus, 468 Mass. at 183-184, for example,
the court found that special circumstances existed based on the
confluence of three factors: the defendant "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."
See Commonwealth v. Cano, 87 Mass. App. Ct. 238, 247-248 (2015)
(finding that defendant raised substantial issue concerning
"special circumstances" because he "ha[d] not lived in Colombia
since he moved to the United States in 1979, at age twelve"; was
14
"largely dependent on his family members in the United States
for many of the basic requirements of daily life"; and
"depend[ed] to a significant extent on governmental benefits to
meet his financial needs"); Martinez, 86 Mass. App. Ct. at 552-
553 (remanding for consideration of prejudice where defendant
was "a United States resident since early childhood, employed
with a family, including a common-law wife and three children
who were all United States citizens").
Similarly, in Lee v. United States, 137 S. Ct. 1958, 1968-
1969 (2017), the United States Supreme Court considered a
confluence of factors in reversing the denial of the defendant's
motion to vacate his guilty plea. Although the Supreme Court
did not use our parlance of "special circumstances," it noted
that the defendant had not visited his birth country since
moving to the United States at the age of thirteen, "had lived
in the United States for nearly three decades, had established
two businesses in Tennessee, and was the only family member in
the United States who could care for his elderly parents." Id.
at 1962, 1968. Cf. United States v. Gonzales, 884 F.3d 457,
461-463 (2d Cir. 2018) (per curiam) (vacating defendant's guilty
plea due to court's "failure to inform [defendant] of the
immigration consequences of his plea" where defendant came to
United States as child, lived in New York City near his children
and their mothers for most of his life, had family in New York
15
City area, and had siblings serving in United States military);
United States v. Ruiz, 548 Fed. Appx. 410, 411-412 (9th Cir.
2013) (finding that "proper legal advice of which [defendant]
was deprived could have at least plausibly motivated a
reasonable person in her position not to have pled guilty" where
defendant "ha[d] longstanding ties to the United States, having
arrived here at the age of seven, having lived here for [thirty]
years and having two U.S.-born children").
Here, the relevant factors as alleged during the motion
hearing and in the defendant's affidavits are that the defendant
moved to the United States from Haiti at the age of seven and
has not since returned; that the defendant has friends, family,
and a girlfriend in the United States; that the defendant has
been unable to locate any family members in Haiti since the
earthquake that devastated Haiti in January 2010; that the
defendant is not proficient in the language of Creole or French;
and that the defendant was diagnosed with a learning disability
when he was young.
A further relevant circumstance not discussed at the motion
hearing is that at the time of the defendant's plea, Haitian
nationals in the United States were granted temporary protected
status (TPS) because of the earthquake. See 75 Fed. Reg. 3476
(2010) (designating Haiti for TPS); 76 Fed. Reg. 29,000 (2011)
(extending Haiti's TPS through January 22, 2013). The court may
16
take judicial notice of this designation by the Secretary of
Homeland Security because notice of the designation was
published in the Federal Register. See Ralston v. Commissioner
of Agric., 334 Mass. 51, 53 (1956) ("The contents of the Federal
Register are the subject of judicial notice by this court").
See also 44 U.S.C. § 1507 (2012) ("The contents of the Federal
Register shall be judicially noticed . . ."). Cf. Mass. G.
Evid. § 202(b) (2018) ("A court may take judicial notice of the
contents of Federal regulations . . . not brought to its
attention . . .").
If the judge were to find that all of these alleged factors
existed at the time of the defendant's plea, then it would be an
abuse of discretion to find that these factors, considered
collectively, failed to constitute special circumstances. A
finding of special circumstances requires only a finding that
the defendant "placed, or would have placed, particular emphasis
on immigration consequences in deciding whether to plead
guilty." Clarke, 460 Mass. at 47-48. It is hard to imagine any
reasonable person who would not, in light of this confluence of
factors, place "particular emphasis on immigration consequences
in deciding whether to plead guilty." Id.
This is not to say that the judge must find prejudice if he
or she finds that the above-listed factors existed at the time
of the defendant's plea. The existence of special circumstances
17
does not automatically result in prejudice. Rather, "[t]he
prejudice determination rests on the totality of the
circumstances, in which special circumstances regarding
immigration consequences should be given substantial weight."
Lavrinenko, 473 Mass. at 59. See Lee, 137 S. Ct. at 1966, 1968.
We do not provide an exhaustive list of the particular
factors that the judge should consider on remand if he or she
reaches this totality of the circumstances analysis. We
emphasize that the judge may consider any factor that bears on
the ultimate question of prejudice: whether there is a
reasonable probability that a reasonable person in the
defendant's circumstances would have gone to trial if given
constitutionally effective advice. In answering this question,
the judge should remember that, for some defendants, "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." Lavrinenko, 473 Mass. at 63. This is because "[t]he
decision whether to plead guilty . . . involves assessing the
respective consequences of a conviction after trial and by plea.
When those consequences are, from the defendant's perspective,
18
similarly dire, even the smallest chance of success at trial may
look attractive" (citation omitted). Lee, 137 S. Ct. at 1966.8
We reaffirm the Lavrinenko case's nonexhaustive list of
potential factors: the defendant's assessment of success at
trial; the risks of going to trial rather than pleading guilty,
including "the risk that a conviction [at trial] would result in
a sentence at or close to the 'maximum allowable sentence'" 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"; whether
conviction at trial would result in a house of correction
sentence or a lengthy State prison sentence; and the defendant's
deportability on acquittal.9 Lavrinenko, 473 Mass. at 59 n.20,
8 In Lee v. United States, 137 S. Ct. 1958, 1966-1967
(2017), the United States Supreme Court found prejudice based on
the "dire" immigration consequences of a guilty plea, where the
defendant said, inter alia, that "he . . . would have rejected
any plea leading to deportation -- even if it shaved off prison
time -- in favor of throwing a 'Hail Mary' at trial." In
football, a "Hail Mary" is a long pass into the end zone with
little time remaining. The chance of success is meager, but not
zero. Doug Flutie did, after all, complete such a pass to
secure a victory for Boston College in 1984.
9 We recognize that the parties have briefed the
applicability of various special circumstances and totality
factors to the defendant in this case. We also recognize that
the Commonwealth has moved to (1) supplement the record with
information relevant to the defendant's deportability on
acquittal and (2) strike a portion of the defendant's brief
relevant to the defendant's lack of ties with Haiti. Although
we do not reach these issues, they may be addressed on remand.
19
quoting Commonwealth v. Roberts, 472 Mass. 355, 365 (2015). We
also observe that the Clarke factors discussed supra are
relevant to the totality analysis. See Clarke, 460 Mass. at 47-
48. But we emphasize that, "[u]ltimately, 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." Lavrinenko, supra,
quoting Roberts, supra at 365-366.
Conclusion. For the foregoing reasons, the order denying
the defendant's motion for a new trial is vacated and the matter
is remanded to the District Court for proceedings consistent
with this opinion.
So ordered.