Commonwealth v. Lopez

• Court: Appeals Court of Massachusetts
• Writing for the Court: Present: ENGLANDER, HODGENS, & SMYTH, JJ.
• Citation: 106 Mass.App.Ct. 116
• Docket Number: 24-P-372
• Decision Date: 09 October 2025
• Parties: COMMONWEALTH v. RICARDO LOPEZ.

106 Mass.App.Ct. 116

COMMONWEALTH v. RICARDO LOPEZ.

No. 24-P-372

Appeals Court of Massachusetts, Essex

January 6, 2025

October 9, 2025

Present: ENGLANDER, HODGENS, & SMYTH, JJ.

COMPLAINT received and sworn to in the Lawrence Division of the District Court Department on July 26, 1999.

A motion for a new trial, filed on October 25, 2021, was heard by Kevin J. Gaffney, J., and considered by Mark A. Sullivan, J., and a motion for reconsideration also was considered by Sullivan, J.

Rachel Chunnha for the defendant.

Kristen Wekony Jiang, Assistant District Attorney, for the Commonwealth.

ENGLANDER, J. The defendant seeks a new trial based on alleged ineffective assistance of counsel. In 1999, the defendant, an undocumented immigrant, was charged with assault and battery, breaking and entering in the nighttime with intent to commit a felony, and malicious destruction of property over $250. Of these offenses, the latter two are considered "crimes of moral turpitude" under the immigration laws. Following a bench trial in District Court in 2000, the defendant was convicted of the breaking and entering charge, and the lesser included offense of malicious destruction of property under $250.

Many years later, the defendant learned that his conviction of breaking and entering with intent to commit a felony foreclosed a path to permanent residency. This path had otherwise become available when the defendant's mother became a naturalized citizen, which occurred after his trial. In 2021 the defendant moved for a new trial, arguing (1) that trial counsel did not advise the defendant of the immigration consequences of a conviction, and in particular, that a conviction after trial could foreclose a specific path to permanent residency; and (2) that trial counsel did not advise the defendant of his right to appeal or file a notice of appeal.

A District Court judge denied the motion for a new trial, as well as a motion for reconsideration. The defendant presses his arguments again on appeal. The defendant's first argument regarding immigration consequences fails, as this case is controlled by Commonwealth v. Marinho, 464 Mass. 115, 128-130 (2013), in which the Supreme Judicial Court ruled, under similar circumstances, that the defendant in that case had not shown prejudice because he had not demonstrated a reasonable probability that he could have achieved the plea bargain he posited in his motion for a new trial. As to the failure to file a notice of appeal, we must remand the matter as to this issue to the District Court, which under the circumstances needed to hold an evidentiary hearing to determine whether the defendant received ineffective assistance regarding the appeal and if so, whether the defendant otherwise would have timely appealed from his convictions.

Background. The following facts are drawn from the limited record before us, which includes a portion of a police report, the defendant's affidavit, and trial counsel's unsworn statements in e-mail messages to motion counsel. The defendant did not submit an affidavit from trial counsel in connection with the motion fora new trial.¹

Per the defendant's affidavit, he is a Guatemalan national who entered the United States in 1995. It is undisputed that he entered unlawfully. In July of 1999, the defendant was arrested and charged with assault and battery, breaking and entering in the nighttime with intent to commit a felony, and malicious destruction of property over $250. The evidence in the record differs as to the events leading to the defendant's arrest. According to the portion of the police report in the record, two men (the car owners) flagged down an officer to report that someone had broken into their car. The car owners were eating dinner when they heard a loud noise; on leaving the restaurant, they found several men standing next to their car, which had a broken window. The car owners confronted the men, and a fight ensued. The remainder of the arrest report is not in the record, but evidently the defendant was arrested as a result of this altercation.

In his affidavit, the defendant admits that he was present at this incident, but avers that it was another man in his group who broke the car window. The defendant also avers that the owners of the car started fighting him and his group, and that he acted in self-defense.

Regarding the assistance of counsel, the defendant states the following: that he was appointed counsel, that he told trial counsel that he was innocent, and that trial counsel gave him the option of pleading guilty or going to trial. The defendant further avers that trial counsel never told him that the case would result in immigration consequences. Trial counsel, on the other hand, states in his e-mail messages that he advised the defendant that "more likely than not" the defendant would be deported, denied readmission, and denied citizenship.

The case was tried, jury waived, in February of 2000. Per the defendant's affidavit, the owner of the car testified and accused the defendant at trial. Ultimately the defendant was acquitted of assault and battery, convicted on the breaking and entering charge, and convicted of the lesser included offense of malicious destruction of property under $250. He was sentenced to six months of probation.

Twenty years later, the defendant sought to become a permanent resident of the United States. This was a possibility because the defendant's mother had become a naturalized citizen; motion counsel represented that the defendant's mother's naturalization occurred after trial. The defendant asserts that on seeking the advice of immigration counsel, he learned that his breaking and entering conviction rendered him inadmissible to the United States, and therefore ineligible for permanent residency.

In October of 2021, the defendant moved for a new trial with respect to his convictions. Among the grounds therefor were that the defendant was allegedly deprived of effective assistance of counsel, because (1) trial counsel did not negotiate an "immigration-safe" plea, and did not inform the defendant of the immigration consequences of a guilty verdict; and (2) trial counsel failed to advise him regarding the filing of a notice of appeal. After a nonevidentiary hearing, the motion judge, who was not the trial judge, denied the motion. The defendant moved for reconsideration, attaching to his motion e-mail messages between motion counsel and trial counsel. This motion was also denied.

Discussion. 1. Immigration consequences. The defendant first argues that in 2000, prior to trial, trial counsel should have advised him that if he was convicted, certain convictions would render him inadmissible and prevent him from becoming a lawful resident of the United States, and that if later apprehended by Federal authorities, "his deportation would be mandatory, with no potential avenue for discretionary relief." The defendant further argues that he should have been advised that he could pursue a plea bargain that was (allegedly) "immigration-safe" — in his case, by pleading guilty to lesser included offenses with respect to breaking and entering and malicious destruction of property.²

"We review the denial of a defendant's motion for a new trial for a significant error of law or other abuse of discretion." Commonwealthv. Torres, 495 Mass. 1008, 1010 (2024). However, "[w]hen, as here, the motion judge did not preside [at trial] ... , we regard ourselves in as good a position as the motion judge to assess the ... record." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014), quoting Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011). The motion judge has the discretion to deny a new trial motion on the affidavits, where no substantial issue is raised. See Commonwealth v. Denis, 442 Mass. 617, 629 (2004); Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). However, "[g]enerally, 'where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge should hold an evidentiary hearing,' " allowing the judge to make the required factual findings to decide the motion. Gordon, supra at 394-395, quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).

To show ineffective assistance of counsel, under the familiar Saferian standard the defendant must make two showings: that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that counsel's performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Marinho, 464 Mass. at 123, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In analyzing the first Saferian prong, we look to the "professional standards of the legal community." Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011), abrogated in part by Chaidez v. United States, 568 U.S. 342 (2013). "The weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation," Lavrinenko, supra, quoting Padilla v. Kentucky, 559 U.S. 356, 367 (2010), whether resulting from a guilty plea or conviction after trial; however, the extent of this obligation "is tied to the clarity of the law regarding the immigration consequences of [the disposition]," Commonwealth v. Taron T., 104 Mass. App. Ct. 219, 226 (2024). As to the second Saferian prong, where, as here, the defendant alleges that he would have pleaded guilty instead of going to trial, "the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial." Marinho, supra at 129. "In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have...