Commonwealth v. Dossantos
| Decision Date | 30 June 2022 |
| Docket Number | 21-P-422 |
| Parties | COMMONWEALTH v. VASCO DOSSANTOS. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
The defendant appeals from an order of a Superior Court judge denying, without a hearing, his motion to withdraw his guilty pleas or for a new trial. The defendant contends that his plea counsel failed to advise him that as a result of his pleas, the defendant would become "per se removable."
The defendant's motion was accompanied by affidavits from the defendant, the defendant's sister, and plea counsel. According to the defendant and his sister, plea counsel advised the defendant that he was unlikely to be deported as a result of his guilty pleas, because he had not been deported after prior convictions. Plea counsel averred that he could not recall the advice he had given, but that his general practice was to give advice that "tracked" the waiver of rights form that the defendant signed. The defendant therefore argues that the affidavits raised a substantial issue regarding whether he received ineffective assistance of counsel, such that an evidentiary hearing was required. Under the circumstances, we agree that a hearing was necessary, and accordingly, we vacate the order and remand the matter for further proceedings.
Background.
In October of 2016, police officers in Dorchester responded to a report that there was an individual with a gun in the area of Columbia Road and Glendale Street. Upon arrival they saw the defendant, who matched the description the police officers had received; the defendant saw the officers and ran away with the officers in pursuit. The officers heard the defendant throw something in a trashcan, which turned out to be a firearm. The defendant's palm print was on the loaded gun, and according to thermal imaging tests, the gun was still warm when recovered by the police. The defendant was subsequently indicted on three charges: possession of a firearm without a license in violation of G. L. c. 269, § 10 (a), as an armed career criminal (ACC) under G. L. c. 269, § 10G (b);[1] possession of ammunition without a license in violation of G. L. c. 269, § 10 (h); and unlawfully carrying a loaded firearm in violation of G. L. c. 269, § 10 (n).
In April of 2018, the defendant pleaded guilty to the firearm possession charges. In return, the Commonwealth dropped the ammunition charge and ACC enhancement. During the plea colloquy, the judge advised the defendant that "this guilty plea . . . could have the consequences of your deportation" and "if the . . . offense to which you're pleading guilty is under federal law, [sic] that presumptively mandates removal from the United States and if federal officials decide to seek your remov[al], . . . it is practically inevitable that these convictions would result in your deportation . . ." The defendant also confirmed that he understood the waiver of rights form that he had signed, which read:
"I understand that if I am not a citizen of the United States, a conviction in the above case(s) may result in my deportation, exclusion from admission to the United States, or denial of naturalization, and that if the offense is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this conviction will result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States."
The judge sentenced the defendant to two and one-half years of incarceration, and a three-year period of probation.[2]
Approximately twenty months later, in December of 2019, the Department of Homeland Security notified the defendant that, due to his convictions, he was subject to removal pursuant to § 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C). An immigration judge subsequently ordered that the defendant be deported. The defendant thereafter filed a motion for new trial in the Superior Court, arguing that his attorney had provided ineffective assistance of counsel by not adequately informing the defendant that his guilty pleas would subject him to "mandatory" deportation.
The defendant's affidavit accompanying the motion described a meeting he attended with his attorney, his mother, and his sister in March of 2018. The defendant averred that during that meeting, his sister asked his attorney "whether accepting the plea would have any immigration consequences" for the defendant, and plea counsel replied that "'[i]f you have been locked up before and immigration did not mess with you, it is unlikely they will mess with you this time around.'" The defendant further averred that he was not aware that his guilty pleas would result in deportation. Finally, the defendant represented that he would have rejected the plea agreement and taken his chances at trial had he known the guilty pleas rendered him deportable.
The affidavit of the defendant's sister also discussed the March 2018 meeting. The sister averred that she asked plea counsel what impact the pleas would have on the defendant's immigration status. According to the sister's affidavit, plea counsel responded that "if immigration authorities had not intervened with [the defendant] before despite his prior criminal cases, they would not intervene with him now."
The defendant also submitted an affidavit from plea counsel, which stated that he had no recollection of his conversations with the defendant, but that his "usual practice at the time of Mr. Dos Santos's plea . . . consisted [of] providing advice that tracked the content of the Waiver of Defendant's Rights Form." Plea counsel's affidavit did not address the defendant's averments as to what plea counsel said about the likelihood of immigration consequences. The affidavits of the defendant and his sister also described the defendant's ties to the United States. The defendant is a Cape Verdean citizen who entered the United States as a legal permanent resident at seven years old. The defendant has two daughters, aged six and eleven, who live in the United States and are United States citizens. In addition, the defendant's entire family lives in the United States -including his parents, siblings, children, aunts, and uncles.
The defendant also maintained employment in the United States to support his daughters and parents, and maintained close relationships with them. The defendant's affidavit represented that his family would "experience extreme hardship" if he were to be deported.
After receiving the Commonwealth's opposition, a different judge (motion judge) denied the motion for new trial on the papers. The motion judge concluded that the motion did not raise a substantial issue because: (1) the defendant and the sister's affidavits were self-serving and contradictory, (2) the statement the defendant alleged that plea counsel made regarding deportation would not constitute ineffective assistance of counsel, even if true, and (3) the defendant's "highly experienced and competent counsel" had negotiated a favorable plea. The defendant filed a motion to reconsider, which the motion judge also denied. This appeal followed.
Discussion.
1. Substantial issue.
The defendant argues that his motion for new trial raised a substantial issue as to whether he received ineffective assistance of counsel. We review the motion judge's decision to deny the defendant's motion without an evidentiary hearing for "significant error of law or other abuse of discretion" (quotation and citation omitted). Commonwealth v. Alemany, 488 Mass. 499, 517-518 (2021).
The defendant's ineffective assistance argument springs from Padilla v. Kentucky, 559 U.S. 356, 369 (2010), in which the United States Supreme Court held that defense counsel may provide ineffective assistance where counsel fails to provide accurate advice about the clear immigration consequences of a guilty plea. Cases subsequent to Padilla in our courts have fleshed out the law in this area considerably. See Commonwealth v. DeJesus, 468 Mass. 174, 180-182 (2014). As with any ineffective assistance claim, the defendant must make two showings: (1) that plea counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) that the defendant was prejudiced. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We first address the defendant's showing as to whether counsel's performance was ineffective. Here, the defendant sought to make his showing in a motion for new trial, based upon the affidavits described above. The motion judge denied the motion without hearing. However, the judge may decide such a motion without an evidentiary hearing only "if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). A motion for new trial presents a substantial issue if the written materials "contain sufficient credible information to cast doubt on the issue." Commonwealth v. Denis...
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