Commonwealth v. Clarke

• Decision Date: 17 June 2011
• Docket Number: SJC–10888.
• Citation: 949 N.E.2d 892,460 Mass. 30
• Parties: COMMONWEALTHv.Michael CLARKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 30

949 N.E.2d 892

COMMONWEALTH

v.Michael CLARKE.

SJC–10888.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Feb. 8, 2011.Decided June 17, 2011.

Thomas M. Glynn, Melrose, for the defendant.Anna E. Kalluri, Assistant District Attorney, for the Commonwealth.Wendy S. Wayne, Cambridge, Jeanette Kain, Boston, & Jennifer Klein, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.CORDY, J.

This case is before us on appeal from the denial of the defendant's second motion for a new trial in which he sought to vacate guilty pleas he entered in 2005, on the ground that he was deprived of his right under the Sixth Amendment to the United States Constitution to the effective assistance of counsel as that right recently has been explicated in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ( Padilla ). In Padilla, the United States Supreme Court held that defense counsel's failure to advise a client that a consequence of his guilty plea likely would be deportation constituted ineffective assistance of counsel. Id. at 1483. The defendant asserts that he was similarly ill served by his counsel and asks us to vacate his guilty pleas. We transferred the case to this court on our own motion.

To decide this case, we must determine whether Padilla applies retroactively to the defendant's collateral challenge to his convictions, and, if so, whether he has demonstrated that he was prejudiced by counsel's shortcomings. For the reasons that follow, we conclude that Padilla is to be applied retroactively on collateral review of guilty pleas obtained after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104–208, 110 Stat. 3009–546 (eff. April 1, 1997). We also conclude that the defendant has made an insufficient showing that had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different. Therefore, we affirm the denial of his motion for a new trial.

1. Facts. The following facts are drawn from the motion judge's findings of fact and the incident report filed by the police. On February 16, 2004, two Boston police officers were monitoring the Mattapan Square area of Boston when they observed a group of teenagers standing at the corner of Babson Street and Crossman Street. As they drove by, the defendant made eye contact with one officer and then began walking away from the group. The officers turned their vehicle around and noticed the defendant standing on the front porch of a house with his hands in his pockets. The officers pulled up to the home and asked the defendant if they could speak with him. The defendant met the officers on the sidewalk, and the officers noticed a strong odor of alcohol. The defendant admitted to drinking and that he was only seventeen years of age. The defendant stated that his friend lived at the home, but a resident in the home denied knowing the defendant. One officer conducted a patfrisk of the defendant out of concern that he might have a weapon and found two small bottles of brandy. The officers placed the defendant under arrest for being a minor in possession of alcohol. A search incident to arrest of the defendant revealed multiple bags of “crack” cocaine and marijuana, a cellular telephone, and $1,115 in cash.¹ The arrest took place 339 feet from the Mildred Middle School property line. During the booking procedure, after being read his Miranda rights, the defendant stated that the marijuana was packaged as “dime-bags, $10.00 each” and that the crack cocaine was packaged in “$10.00 rocks.”

On February 2, 2005, the defendant pleaded guilty to possession of a class B substance with intent to distribute, G.L. c. 94C, § 32A; possession of a class D substance with intent to distribute, G.L. c. 94C, § 32C; and underage possession of liquor, G.L. c. 138, § 34C. In return, the Commonwealth agreed to the dismissal of two counts of school zone violations, G.L. c. 94C, § 32J, each of which carried a mandatory minimum two-year house of correction sentence and, if charged in an indictment, a maximum fifteen-year prison term. The defendant was sentenced to two years in a house of correction, with five months to be served and the balance suspended, and two years' probation.

On December 15, 2009, the United States Department of Homeland Security served the defendant with a notice to appear, stating that he was subject to removal from the United States for being convicted of an aggravated felony and for being convicted of a violation of a law relating to a controlled substance. ² This prompted the defendant to file his first motion for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), in which he sought to withdraw his guilty pleas on the ground that they were not knowing and voluntary because he did not understand the intent element of the crimes. That motion was denied on February 9, 2010.³ On April 14, 2010, the defendant filed his second motion for a new trial, this time alleging ineffective assistance of counsel under Padilla.

In support of his second motion, the defendant filed an affidavit of counsel who represented him at the plea hearing, in which she averred that she had been unaware that the defendant was not a United States citizen, and had no memory of discussing any immigration consequences that might arise from his pleas of guilty. The defendant also submitted an affidavit stating that he was not told that his guilty pleas would result in deportation. Although the tape recording of the plea hearing was no longer available,⁴ the docket sheet in the case bears the stamp: “Deportation Warning Given,” and the court file includes a tender of plea form, signed by the defendant, which states: “I understand that if I am not a citizen of the United States, conviction of this offense may have the consequences of deportation....” The tender of plea also bears the judge's signed certification that “the defendant was informed and advised that if he or she is not a citizen of the United States, a conviction of the offense with which he or she was charged may have the consequences of deportation,” as well as defense counsel's signature certifying that she had explained this provision (and other provisions) of the law to the defendant.⁵ The judge denied the defendant's second motion for a new trial without a written decision.

2. Retroactivity. Because the decision in Padilla came after the defendant's convictions were final, we must determine whether the holding in that case applies retroactively to cases on collateral review. ⁶ Federal law on the retroactive application of constitutional decisions was articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ( Teague ).⁷ In that case, the Supreme Court held that a “new” constitutional rule of criminal law does not apply on collateral review to convictions that were final before the new rule was announced.⁸ Id. at 301, 109 S.Ct. 1060. “Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.” Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).

The Supreme Court in Teague acknowledged the difficulty of determining when a rule is new, and chose not to define a “new rule” except to state that, “[i]n general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” (Citations omitted.) Teague, supra at 301, 109 S.Ct. 1060. In fairness, the Supreme Court, since Teague, has given broad articulation to the meaning of when a rule is “new,” thus limiting review in collateral challenges, and “validat[ing] reasonable, good-faith interpretations of existing precedents made by state courts” even though they are “contrary to later decisions.” Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). See Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), quoting Graham v. Collins, 506 U.S. 461, 468, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (court must ascertain “legal landscape” existing at time conviction became final); O'Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (“we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court”); Graham v. Collins, supra at 467, 113 S.Ct. 892, quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (holding is new and thus not ordinarily retroactive “unless reasonable jurists hearing petitioner's claim at the time his conviction became final ‘would have felt compelled by existing precedent’ to rule in his favor”).

It is thus not surprising that the Commonwealth argues that the rule announced in Padilla is a “new” rule because it was not “dictated” by precedent and “abrogated both widespread federal and stated precedent.” Indeed, in concluding that defense counsel was ineffective by failing to advise her client of the virtually automatic deportation consequences of his guilty plea, the Supreme Court in Padilla effectively changed the law in the nine circuit courts of the United States Court of Appeals that had previously addressed the issue. See Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir.), cert. denied, 543 U.S. 1034, 125 S.Ct. 809, 160 L.Ed.2d 597 (2004); ...