Commonwealth v. Lavrinenko

• Decision Date: 05 October 2015
• Docket Number: SJC–11792.
• Citation: 38 N.E.3d 278,473 Mass. 42
• Parties: COMMONWEALTH v. Pavel LAVRINENKO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 42

38 N.E.3d 278

COMMONWEALTH

v.Pavel LAVRINENKO.

SJC–11792.

Supreme Judicial Court of Massachusetts, Hampden.

Submitted April 7, 2015.

Decided Oct. 5, 2015.

Merritt Schnipper for the defendant.

Cynthia Cullen Payne, Assistant District Attorney (Jane Davidson Montori, Assistant District Attorney, with her) for the Commonwealth.

Wendy S. Wayne & Jennifer Klein, Committee for Public Counsel Services, & Laura Murray–Tjan, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

GANTS

, C.J.

The issue on appeal is whether a noncitizen defendant, admitted into the United States as a refugee, is entitled to withdraw his guilty plea to a complaint charging assault by means of a dangerous weapon, where his attorney did not make a reasonable inquiry regarding the defendant's citizenship, and therefore did not learn that he was a refugee. We conclude that, under art. 12 of the Massachusetts Declaration of Rights, constitutionally effective representation of a criminal defendant requires defense counsel to make a reasonable inquiry of the defendant to determine whether he or she is a citizen of the United States and, if the defendant is not, to make a reasonable inquiry into the defendant's immigration status, including whether the defendant was admitted into this country as a refugee or has been granted asylum.

We also conclude that, in determining whether a defendant suffered prejudice from counsel's deficient performance, “special circumstances” regarding immigration consequences, as contemplated in Commonwealth v. Clarke, 460 Mass. 30, 47–48, 949 N.E.2d 892 (2011)

, should be given substantial weight in determining, based on the totality of the circumstances, whether there is a reasonable probability that the defendant would have rejected the plea offer and insisted on going to trial had counsel provided competent advice regarding the immigration consequences of the guilty plea. Moreover, a defendant's status as a refugee or an asylee is a special circumstance entitled to particularly substantial weight. Because the motion judge found that counsel's performance was deficient but did not consider the defendant's refugee status in finding that the defendant suffered no prejudice, we vacate the denial of the motion for a new trial and the motions for reconsideration, and remand the matter to the District Court for further proceedings consistent with this opinion.¹

Background. The following facts are drawn from the motion judge's findings of fact, supplemented with details from the record where they are consistent with the judge's findings. The defendant was born in Novokuznetsk, Russia, and came to the United States with his parents and two siblings in 2000 at the age of thirteen. They had left Russia to escape religious persecution as Pentecostal Christians, and were admitted into the United States as refugees.

On April 10, 2005, when the defendant was seventeen years old, he operated a motor vehicle while intoxicated and crashed into a streetlamp post. The defendant drove away, but police officers observed the defendant's vehicle with heavy damage and began following him in a marked police cruiser to perform a motor vehicle stop. With the officers in pursuit, the defendant's vehicle sped away but eventually struck a tree; the defendant got out of the vehicle, ran, and jumped into a nearby river. After the police officers arrived at the river bank, the defendant began moving back toward shore. According to the police report, the officers observed the defendant holding a “stick” as he approached them, and one of the officers ordered the defendant to drop the stick several times. The defendant continued to hold the stick “in a threatening manner” until an officer used pepper spray on the defendant, and he dropped the stick into the water and came on shore, where he was arrested.²

A complaint issued on April 11, 2005, charging the defendant in the Springfield Division of the District Court Department (Springfield District Court) with seven counts, including driving while under the influence of alcohol, leaving the scene of property damage, and assault by means of a dangerous weapon (the stick).³ In addition, as a result of the defendant's conduct on April 10, the defendant was charged with violating the conditions of probation that he was serving on a continuance without a finding for knowingly receiving stolen property. At the time, he also had pending charges in Springfield District Court of malicious destruction of property and attempt to commit a crime. As part of what the judge described as a “global resolution” of all outstanding cases, the defendant pleaded guilty on April 28 to the earlier charges of malicious destruction of property and attempt, and was sentenced to ninety days in a house of correction, to be served concurrently. On April 29, he pleaded guilty to driving while under the influence of alcohol, leaving the scene of property damage, and assault by means of a dangerous weapon; he also admitted to the probation violation, and a guilty finding was

entered on the charge of knowingly receiving stolen property.⁴ He was sentenced on these charges to a total of ninety days in a house of correction, with the sentences to be served concurrently with each other and with the sentences imposed on April 28.

On October 31, 2012, the defendant was detained by United States Immigration and Customs Enforcement and subsequently placed in removal proceedings. An immigration judge granted the defendant's application for adjustment of status to lawful permanent resident, but the United States Department of Homeland Security appealed the decision, and the board of immigration appeals remanded the case for further proceedings to determine whether the defendant is a “violent or dangerous” individual.

On December 3, 2013, the defendant filed a motion to withdraw his guilty plea to the charge of assault by means of a dangerous weapon. The judge who had accepted the defendant's guilty plea in 2005 conducted a nonevidentiary hearing, and denied the motion. After the defendant filed a motion for reconsideration, the judge held an evidentiary hearing during which the defendant, the defendant's criminal defense attorney at the time of his guilty plea (plea counsel), and the defendant's immigration counsel testified.

Although plea counsel could not remember whether he advised the defendant about immigration consequences, he explained that, as a matter of course, he gave a standard warning to all of his clients that essentially repeated the same warnings included in the “green sheet,” that is, the District Court Department's preprinted “Tender of Plea or Admission Waiver of Rights” form.⁵ That form, which the defendant signed on the day of his guilty plea, included the following statement: “I understand that if I am not a citizen of the United States, conviction of this offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of

the United States.”⁶ Plea counsel testified that he typically prefaced the discussion of immigration consequences with a client by stating that he did not know the client's immigration status and “it wasn't really [his] concern.” He would then tell the client that he did not know whether the client had “any immigration concerns at all,” but would add, “[I]f you're convicted of any offense ... you could be deported or excluded.”⁷

Plea counsel further testified that, unless “there was some red flag” or an issue that the client brought to his attention, he would give this standard advice regardless of the particular charges in the case. He noted that, if the client “brought something to [his] attention and [he] thought that it might be ... in [the client's] best interests to do some further research, [he has] done that over the years.” However, he was not aware at the time of the defendant's plea of any immigration law issues specific to refugees and did not “remember ever having a discussion with any client regarding refugee status.”

The judge acknowledged that he possessed “no independent memory of this defendant or the events surrounding the plea,” and found that neither the defendant nor plea counsel had significant memory of any discussions regarding immigration issues. Thus, it was unclear “what if any immigration warnings were discussed between the defendant and [plea counsel].” The judge found that “it is clear that the issue of the defendant's refugee status was not addressed,” and for that reason, counsel's performance was deficient.⁸

The judge, however, concluded that the defendant was not prejudiced by the attorney's deficient performance because the plea served as a “global resolution ... offering a [lesser] total period of incarceration.” Considering that the defendant “was facing the possibility of jail time possibly upwards of [two and one-half years]” in a house of correction, the judge found that “[t]here is every reason to believe that [the defendant] was more than satisfied with the result at that time and would have had little if any leeway in successfully defending” the charges arising from the April 10, 2005, incident to which he pleaded guilty. The judge denied the defendant's motion for reconsideration and then denied a second motion for reconsideration. The defendant appealed, and we granted his motion for direct appellate review.

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).” Commonwealth v. DeJesus, 468 Mass. 174, 178, 9 N.E.3d 789 (2014), citing Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009). We “examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.”...