Commonwealth v. Dejesus
| Decision Date | 19 May 2014 |
| Docket Number | SJC–11392. |
| Citation | 468 Mass. 174,9 N.E.3d 789 |
| Parties | COMMONWEALTH v. Elan DeJESUS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Zachary Hillman, Assistant District Attorney, for the Commonwealth.
Eduardo Antonio Masferrer, Boston, (Oriosto Medrano Santana, Natick, with him) for the defendant.
Emma Winger & Wendy Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services Immigration Impact Unit, amicus curiae, submitted a brief.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
We are asked in this case to consider whether defense counsel's advice to his noncitizen client that if the client pleaded guilty to drug possession charges he would be “eligible for deportation” was constitutionally deficient. Because, under applicable immigration law, the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or “presumptively mandatory,” see Padilla v. Kentucky, 559 U.S. 356, 368–369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ( Padilla ), citing 8 U.S.C. § 1227(a)(2) (B)(i) (2006), we conclude that counsel's advice was constitutionally deficient and that the defendant suffered prejudice as a result. Accordingly, we affirm the decision of the Superior Court judge allowing the defendant to withdraw his guilty plea.
Background. The defendant pleaded guilty to possession with intent to distribute a class B substance (cocaine), G.L. c. 94C, § 32A ( a ), and received a sentence of probation. After a subsequent arrest for driving without a license, the defendant was taken into custody by immigration authorities; he then filed a motion for a new trial in the Superior Court seeking to withdraw his guilty plea. A Superior Court judge, who also had been the plea judge, conducted an evidentiary hearing on the defendant's motion, at which the defendant and his plea counsel both testified. The judge thereafter made detailed findings and issued a comprehensive memorandum of decision and order allowing the motion. He determined that, under applicable immigration law, it is clear that the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or “presumptively mandatory,” see Padilla, supra, and therefore that counsel's advice was incomplete. The judge concluded that the defendant suffered prejudice as a result of counsel's constitutionally deficient advice, and allowedthe defendant's motion to withdraw his guilty plea. The Commonwealth appealed, and we transferred the case to this court on our own motion.1
We summarize the judge's findings, which he noted as being based on testimony he had determined to be credible, supplementing those findings with certain details from the record where they are consistent with the judge's findings and determinations of credibility.
The defendant was born in the Dominican Republic in 1983. He moved to the United States with his family when he was eleven years old and thereafter lived in Boston. All of the defendant's family members reside in the United States, including a daughter and, as of the date of the hearing, his pregnant wife. Although he is not a United States citizen, the defendant is now a lawful permanent resident of the United States. The defendant attended Boston public schools and graduated from Boston English High School with the aid of an individualized special needs education plan. After graduation, the defendant maintained steady employment with a parcel shipping company, where, at the time of his arrest, he had been employed for eight years loading boxes onto trucks. The arrest in this case was the first time that the defendant had been arrested.
In December, 2008, acting on a tip, Boston police officers approached a blue van and questioned two of its occupants; the defendant was the driver of the van. The passenger had an outstanding warrant and was arrested. The defendant agreed to accompany the officers to the police station, where police searched him, reaching into his groin area and recovering a small bag containing white powder. The defendant was then placed under arrest and ultimately indicted for trafficking in cocaine, twenty-eight grams or more, an offense that at that time carried a five-year mandatory minimum sentence of incarceration in State prison.
Defense counsel was aware that the defendant was not a United States citizen, and spoke with the defendant several times about deportation as a possible consequence of a conviction; counsel told the defendant that any guilty plea would make him “eligible for deportation,” and that if the defendant agreed to the guilty plea he “face[d] being deported and being denied reentry into the United States.” 2 Defense counsel was unavailable on the day of the plea hearing, June 1, 2010, and the defendant appeared in court with an attorney who worked in defense counsel's office; substitute counsel did not discuss with the defendant the immigration consequences of his plea. 3 The defendant pleaded guilty to the lesser included offense of possession of cocaine with intent to distribute and was sentenced to two and one-half years' probation.
In 2011, while on probation, the defendant was arrested for driving with a suspended license. Following his arrest, the defendant was taken into the custody of Federal immigration authorities, placed in removal proceedings, and ordered to be removed from the United States. He was awaiting removal in February, 2012, when he filed the motion for a new trial seeking to withdraw his guilty plea.4 The memorandum in support of that motion states that the defendant In his affidavit in support of the motion, the defendant avers, among other things:
Following an evidentiary hearing, the judge determined that, under Padilla, supra at 369, 130 S.Ct. 1473, counsel's advice was incomplete and was constitutionally deficient in light of prevailing professional norms. In addition, the judge determined that the defendant had met his burden to establish 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.” Commonwealth v. Clarke, 460 Mass. 30, 47, 949 N.E.2d 892 (2011) ( Clarke ), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The judge allowed the defendant's motion and vacated the defendant's plea of guilty to the offense of possession of cocaine with intent to distribute. The judge also reinstated that portion of the indictment charging the defendant with trafficking in cocaine, which had been dismissed with the Commonwealth's agreement under the terms of the plea arrangement.
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). See Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). Commonwealth v. Scott, 467 Mass. 336, 344 (2014). We review the allowance of a motion to withdraw a guilty plea to determine whether the judge committed an abuse of that discretion or a significant error of law. Id. We 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.” Id., quoting Commonwealth v. Schand, 420 Mass. 783, 787, 653 N.E.2d 566 (1995).
2. Adequacy of advice. In determining whether counsel has provided constitutionally ineffective assistance, “[w]e must determine ‘whether there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Clarke, supra at 45, 949 N.E.2d 892, quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Satisfying this standard necessarily satisfies the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Clarke, supra.
The Commonwealth argues that Padilla, supra at 368, 374, 130 S.Ct. 1473, supports its claim that the defendant received correct advice when he was told that he was “eligible for deportation,” and that if he pleaded guilty he would “face being deported and being denied reentry into the United States,” noting that “eligible for deportation” was the language employed by the United States Supreme Court to describe the information that must be provided. The Court in Padilla used various terms to describe a defense attorney's obligation to give correct advice where the consequence of a guilty plea might make a defendant subject to adverse immigration consequences, but did not formulate the precise language that would satisfy that obligation, and understood that the content of the advice would depend on...
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