Commonwealth v. Barbosa
| Decision Date | 05 February 2020 |
| Docket Number | 19-P-1632 |
| Citation | 97 Mass.App.Ct. 1102,140 N.E.3d 951 (Table) |
| Parties | COMMONWEALTH v. Alfeu BARBOSA. |
| Court | Appeals Court of Massachusetts |
The defendant, Alfeu Barbosa, appeals from an order denying his motion to withdraw his pleas and vacate the resulting convictions.2 When his pleas were tendered on March 27, 2017, the defendant was a lawful permanent resident of the United States, who had emigrated from Cape Verde when he was ten years old; his pleas rendered him deportable. On January 7, 2019, he was detained by United States Immigration and Customs Enforcement (ICE), and, on July 30, 2019, a United States Immigration Court judge ordered him deported to Cape Verde.
On August 29, 2019, the defendant filed a motion to withdraw his pleas and to vacate his convictions; he argued that he had received ineffective assistance of counsel at the time of the pleas, claiming, inter alia, that he would not have pleaded guilty if his counsel had properly advised him about the immigration consequences of his pleas. The motion judge, who was also the plea judge, denied the motion after an evidentiary hearing. The judge agreed that the defendant's counsel was ineffective3 but found that the claim failed for lack of prejudice.
On appeal, the defendant argues that the motion judge erred in finding that he was not prejudiced by the ineffective representation. Specifically, he contends that there was a reasonable probability that he could have negotiated different pleas, and that he presented special circumstances supporting the conclusion that he "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). For the following reasons, the order denying the defendant's motion is vacated and the matter is remanded for proceedings consistent with this memorandum and order.
Background. As the judge did not make specific findings of fact, the following facts are drawn from the record; the Commonwealth does not contest the underlying facts, only the conclusions to be drawn therefrom. The defendant was born on October 23, 1997, in Fogo, Cape Verde. He lived with his mother in Praia, Cape Verde, until age three or four when his father took him back to Fogo.4 In Fogo, the defendant's paternal and maternal grandparents split the responsibility as his primary caretakers. The defendant briefly attended school, but his primary education came from his grandparents while working in the fields harvesting corn and beans.
When the defendant was approximately eight years old, his mother died of a heart attack
. The defendant flew back to Praia for her funeral, and thereafter remained in Praia with his maternal uncle for approximately two years. During that time, the defendant's uncle ran a bar and often left the defendant alone in the house; the defendant essentially took care of himself, frequently relying on neighbors for food and company.
When the defendant was approximately ten years old, his father brought him to the Dorchester section of Boston to live with his father's wife and their two daughters.5 While living with his father, the defendant suffered both physical and mental abuse.6 The abuse culminated when the defendant was fourteen. After receiving a call about an issue at school, the defendant's father beat him severely, knocked him to the ground, and then continued punching and kicking him. The defendant fled and was discovered outside a police station. An officer leaving the station asked him what had happened and, when he told her, the police notified the Department of Children and Families (DCF) and transported the defendant to a nearby hospital. Thereafter, DCF took custody and his father was criminally charged for the beating.
Over the next two years, DCF sent the defendant to many different placements; he ran from them because, he recounts, there was physical violence and he did not feel safe. Eventually, the Department of Youth Services took custody. Following his release, the defendant was homeless. His father refused to permit him to enter his home. At one point, the defendant snuck into his father's home to take a hot shower and get clean clothes. When the father discovered him, he called the police and reported the defendant for trespassing. During this time, the defendant relied on friends for housing, but could not stay at one place for too long.
On the suggestion of a friend, the defendant contacted Lezito DaVeiga about a place to stay. Eventually, the defendant moved in with DaVeiga and began to sell marijuana for him in exchange for housing. Over time, the defendant became aware that DaVeiga possessed firearms and was affiliated with a gang. When the defendant tried to move out, DaVeiga threatened him and insisted that he owed him a debt. Eventually, DaVeiga was arrested and deported to Cape Verde. However, DaVeiga's threats continued to arrive from Cape Verde over social media. Specifically, DaVeiga promised to kill the defendant immediately -- as soon as he returned to Cape Verde. In the meantime, the defendant still struggled to find housing.
On April 12, 2016, the defendant was arrested on a number of charges.7 As a result, Quincy police officers identified him as a suspect for a breaking and entering offense in Quincy. On April 13, 2016, he was arraigned on the five charges that were the basis for the pleas at issue. See note 1, supra. On March 27, 2017, the day of the defendant's pleas, the Commonwealth answered ready for trial on counts one through four,8 but agreed to dismiss count three and count four if the defendant agreed to plead guilty. On the remaining charges, the prosecutor recommended a sentence of eighteen months in the house of correction, to be served concurrently with a sentence the defendant was then serving. Defense counsel recommended that the defendant serve only one year.
At the time of the pleas, the victim gave a victim impact statement, explaining that his home had been broken into on two separate and unrelated instances. Understandably, he expressed considerable concern about the effect that the video recording of the defendant walking around his house with a knife would have on his two boys. He also said that it would be unjust for the defendant to serve a concurrent sentence with the sentence he was then serving. At the motion hearing, the judge emphasized that she found the victim's statement compelling.
The judge accepted the Commonwealth's recommendation of eighteen months concurrent. She explained,
Significantly here, these sentences had profound consequences for the defendant's immigration status. Under Federal law, breaking and entering in the daytime and larceny over $250, when accompanied by a term of imprisonment of at least one year, are aggravated felonies. 8 U.S.C. § 1101(a)(43)(G) (2018). The relevant Federal statute provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii) (2018). Accordingly, the defendant's sentences rendered him deportable; on January 7, 2019, when the defendant was in court for another matter, ICE took him into custody.
As aggravated felonies, the defendant's convictions severely limited his options to remain in the United States. First, he is ineligible to apply for cancellation of removal. See 8 U.S.C. § 1229b(a)(3) (2018) ; Commonwealth v. Valdez, 475 Mass. 178, 188-189 (2016). He also is barred from applying for asylum. See 8 U.S.C. § 1158(b)(2)(A)(ii) (2018) ; 8 U.S.C. § 1158(b)(2)(B)(i) (2018). He is barred from applying for a withholding of removal under the Convention Against Torture (CAT), see 8 C.F.R. § 208.16(d)(2) (2019) ; 8 U.S.C. § 1231(b)(3)(B) (2018) ; and, he is permanently barred from applying for readmission, see 8 U.S.C. § 1182(a)(9)(A)(ii) (2018) ; 8 U.S.C. § 1182(h) (2018). The defendant applied for a deferral of removal under the CAT.
On July 4, 2019, in preparation for the defendant's immigration hearing for his CAT application, Dr. Claudia Pucci conducted a psychological evaluation and diagnosed the defendant with major depressive disorder
and posttraumatic stress disorder according to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. She opined that the defendant's fear for his life and safety if he is returned to Cape Verde are credible; he presented suicidal ideation that is consistent with her diagnosis; and deportation could further increase his risk of imminent self-harm. Moreover, the defendant's relationship with his fiancé and his motivation to be a partner to her are protective factors in his mental health, and physical separation from her would significantly undermine his mental health and ability to treat his major depressive disorder and posttraumatic stress disorder. Dr. Pucci concluded that the results could be fatal if the defendant were to return to Cape Verde and not have access to the appropriate mental health services and, also, that remaining in the United States would allow him to seek appropriate treatment.
Liz Miranda, a State Representative of the Fifth Suffolk District, also wrote a letter in support of the defendant. Miranda, a Cape-Verdean American, has traveled to Cape Verde and spoken directly with deportees. She said that, along with violence and gang issues,
On July 24, 2019, following a hearing on the merits, an immigration judge denied the defendant's application for deferral of removal under CAT. She concluded that the defendant "did...
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