Commonwealth v. Bienvenido Gonzalez.

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
22-P-575
COMMONWEALTH
vs.
BIENVENIDO GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order denying his motion for
new trial, brought pursuant to Padilla v. Kentucky, 559 U.S. 356(2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). He
argues that he should have been permitted to withdraw his 2008
guilty plea because plea counsel was ineffective in failing to
provide accurate advice regarding the immigration consequences
of his plea. The Commonwealth concedes that the motion judge's
findings are insufficient to permit full review of his order
denying the motion. We vacate the order and remand the case for
further proceedings.
Background. The defendant was born in the Dominican
Republic in 1974 and came to the Boston area in 2003. In August
of 2008, police conducted a traffic stop of the car he was
driving, searched the car's center console, and found suspected
narcotics. The defendant was charged in District Court with
possession of a class B substance with intent to distribute in
violation of G. L. c. 94C, § 32A (a) -- an offense punishable by
imprisonment in State prison for not more than ten years -- as
well as various motor vehicle infractions. In December of 2008
he pleaded guilty to the drug offense and was placed on
probation for one year, which it appears he successfully
completed.
In 2021, represented by new counsel, the defendant filed a
motion for new trial, supported by his affidavit asserting that
plea counsel failed to advise him that his guilty plea and
probation "would cause [him] to be subject to mandatory
deportation and/or would prevent [him] from becoming a
naturalized citizen of the United States." His affidavit
further asserted that, had he been so advised, he would not have
pleaded guilty. Accompanying the motion was an affidavit from
plea counsel stating that counsel no longer had his original
file, had no specific memory of the defendant, and did "not
remember if [the defendant] understood the consequences of the
guilty plea after it was interpreted to him." The motion judge
held an evidentiary hearing, at which the defendant agreed with
his new attorney that had he known of the consequences of a
guilty plea, he would have asked plea counsel "to go to trial or
at least file a motion to suppress the evidence."
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In subsequently denying the motion, the judge found that
the defendant had completed a standard waiver of rights form
(also known as a "green sheet") that included a warning that a
guilty plea "may have" immigration consequences including
deportation. Although the defendant's native language was
Spanish, an interpreter was present at the change of plea
hearing, and the interpreter had signed the form to indicate
that it was translated for the defendant. Plea counsel also
signed the form to indicate that he had explained the stated
consequences to the defendant. The plea judge also signed the
form to indicate, among other things, that he had advised the
defendant that his guilty plea "may have" immigration
consequences including deportation. The judge's warning tracked
the language of G. L. c. 278, § 29D.
Based on these findings, the motion judge concluded:
"[T]he defendant has not overcome the presumption of
regularity that pertains with regard to the guilty plea he
entered 13 years ago. Commonwealth v. Grant, 426 Mass.
667, 671 (1998). I find that the defendant received a
favorable disposition given the seriousness of the case. I
do not credit his self-serving testimony that he was never
advised of potential immigration consequences or that he
would have rejected the offer had he been so advised."
The defendant now appeals.
Discussion. "A postsentence motion to withdraw a plea is
treated as a motion for a new trial." Commonwealth v. Conaghan,
433 Mass. 105, 106 (2000). We review a judge's decision denying
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such a motion "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). An abuse of
discretion is a "clear error of judgment in weighing the factors
relevant to the decision . . . such that the decision falls
outside the range of reasonable alternatives" (quotation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, as explained below, we agree with the Commonwealth that
the judge's findings do not address all of the factors relevant
to the decision and thus are insufficient to permit appellate
review.
To prevail on an ineffective assistance of counsel claim, a
defendant must establish that counsel's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer" and "likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We address
those issues in turn.
1. Plea counsel's performance. Deportation (or removal) 1
from the United States of a noncitizen who is convicted of an
"aggravated felony" is "practically inevitable," Commonwealth v.
Gordon, 82 Mass. App. Ct. 389, 398 (2012), quoting Padilla, 559
1 In places, Federal immigration law now uses the term "removal"
instead of "deportation." See Padilla, 559 U.S. at 364 n.6.
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U.S. at 364, or "presumptively mandatory." Commonwealth v.
Chleikh, 82 Mass. App. Ct. 718, 725 (2012), quoting Padilla,
supra at 369. Possession with intent to distribute a class B
substance is one such aggravated felony. See Commonwealth v.
DeJesus, 468 Mass. 174, 181 (2014). Accordingly, counsel "was
obligated to provide to his client, in language that the client
could comprehend, the information that presumptively mandatory
deportation would have been the legal consequence of pleading
guilty. Stated differently, counsel needed to convey that, if
Federal authorities apprehended the defendant, deportation would
be practically inevitable." Id.Here, the defendant asserted that plea counsel never
advised him that his plea would cause him to be subject to
mandatory deportation. Although the judge found that the plea
judge had given the warning required by G. L. c. 278, § 29D
(stating that a guilty plea "may have" immigration consequences
including deportation), and that the defendant had signed the
green sheet containing the same warning, such warnings are "not
an adequate substitute for defense counsel's professional
obligation to advise her client of the likelihood of specific
and dire immigration consequences that might result from such a
plea." DeJesus, 468 Mass. at 177 n.3, quoting Clarke, 460 Mass.
at 48 n.20. The judge's "factual findings did not address the
issue whether the defendant was properly informed that the
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[offense to which he pleaded guilty] was a deportable offense,
and thus, if removal proceedings were commenced, his deportation
would be practically inevitable. Such fact finding is necessary
to resolve the performance prong of the Saferian analysis."
Commonwealth v. Henry, 88 Mass. App. Ct. 446, 454 (2015).
Of course, the judge was not required to credit the
defendant's affidavit that he had not been warned of mandatory
deportation, even where nothing in the record directly
contradicted the affidavit. See Commonwealth v. Scoggins, 439
Mass. 571, 578 (2003); Commonwealth v. Rzepphiewski, 431 Mass.
48, 55 (2000). However, the judge did not find that the
defendant had been so warned. 2 The case must therefore be
remanded for a finding whether plea counsel's performance was
deficient in this respect. Although the answer to that question
has been complicated by the passage of time, relevant evidence
may still exist, such as a transcript of the plea colloquy or
changes in the defendant's frequency of travel to his country of
2 The judge's decision relied in part on the presumption of
regularity recognized in Grant, 426 Mass. at 671, citing
Commonwealth v. Lopez, 426 Mass. 657, 661-663 (1998). Such a
presumption is of limited utility absent evidence that it was
counsel's regular practice, even before Padilla and Clarke, to
advise noncitizen clients that guilty pleas to certain offenses
would make deportation practically inevitable or presumptively
mandatory. Compare Henry, 88 Mass. App. Ct. at 454 (where plea
counsel's standard practice was to advise clients that "pleas
may have immigration consequences," remand necessary for finding
whether defendant advised that deportation presumptively
mandatory).
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origin after his guilty plea. See Commonwealth v. Rodriguez,
101 Mass. App. Ct. 54, 57 (2022).
2. Prejudice. If plea counsel's performance was
deficient, then the judge will face the question of resulting
prejudice. "[I]n 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. 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."After establishing that a defendant has satisfied this baseline
requirement, a judge should proceed in two steps." Commonwealth
v. Lys, 481 Mass. 1, 7 (2018). First, the defendant "must
'convince the court that a decision to reject the plea bargain
would have been rational under the circumstances.'" Clarke,
supra at 47, quoting Padilla, 559 U.S. at 372. See Lys, supra
at 7.
"To prove [rationality], the defendant bears the
substantial burden of showing that (1) he had an
'available, substantial ground of defence' . . . that would
have been pursued if he had been correctly advised of the
dire immigration consequences attendant to accepting the
plea bargain; (2) there is a reasonable probability that a
different plea bargain (absent such consequences) could
have been negotiated at the time; or (3) the presence of
'special circumstances' that support the conclusion that he
placed, or would have placed, particular emphasis on
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immigration consequences in deciding whether to plead
guilty" (footnote omitted).
Clarke, supra at 47-48. "If the defendant does establish at
least one of the Clarke factors, 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." Lys,
481 Mass. at 7-8.
Here, the defendant's affidavit asserted that if he had
been properly advised of the immigration consequences, he would
not have pleaded guilty. And at the evidentiary hearing, he
agreed that he would have asked plea counsel "to go to trial or
at least file a motion to suppress the evidence." The defendant
argues that such a decision would have been rational based on
the first Clarke factor, i.e., that he had an available,
substantial ground of defense in the form of a motion to
suppress. 3 The defendant's appellate brief sets forth several
3 The defendant's motion also suggested that he had an available
and substantial defense because there was insufficient evidence
of his intent to distribute. He did not, however, assert any
reasonable probability that a better plea bargain could have
been negotiated at the time (the second Clarke factor). The
judge found that the disposition the defendant received -- one
year of probation on a conviction punishable by up to ten years
in State prison -- was "favorable." Nor has the defendant made
any argument based on the third Clarke factor, 460 Mass. at 47-
48, "special circumstances."
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potential grounds for such a motion, including, in essence, that
the search of the car's center console was unreasonable under
the circumstances and thus unlawful. "Because the defendant
waived the motion to suppress when he pleaded guilty, on his
motion to vacate the plea he [bears] the burden of showing that
he would have succeeded on the motion to suppress." Rodriguez,
101 Mass. App. Ct. at 58 n.5.
Accordingly, if on remand the judge finds plea counsel's
performance to have been deficient, the judge should further
address whether the defendant had an available and substantial
ground of defense. If the judge concludes that he did, the
judge should proceed to the "second step" described in Lys, 481
Mass. at 7-8.
Conclusion. The order denying the motion for new trial is
vacated, and the case is remanded for further proceedings
consistent with this decision.
So ordered.
By the Court (Sacks, Grant &
Smyth, JJ. 4),
Clerk
Entered: August 21, 2023.
4 The panelists are listed in order of seniority.
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