Commonwealth v. Lopez

• Citation: 132 N.E.3d 1008,96 Mass.App.Ct. 34
• Decision Date: 09 September 2019
• Docket Number: No. 18-P-434,18-P-434
• Parties: COMMONWEALTH v. Juan LOPEZ.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 34

132 N.E.3d 1008

COMMONWEALTH

v.Juan LOPEZ.

No. 18-P-434

Appeals Court of Massachusetts, Essex..

Argued April 10, 2019

Decided September 9, 2019

Emily R. Mello, Assistant District Attorney, for the Commonwealth.

C. Alex Hahn for the defendant.

Present: Rubin, Henry, & Wendlandt, JJ.

WENDLANDT, J.

The defendant, Juan Lopez, an undocumented individual, pleaded guilty after being advised by counsel (consistent with Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ) that doing so would result in the loss of his then-pending removal proceedings in Federal immigration court and thus deportation. In this appeal, we consider whether the standard under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001) ( rule 30 ), allowing a judge to order a new trial when "justice may not have been done," permits a judge to vacate a guilty plea on the basis that the defendant regrets his decision now that the warned of deportation has come to pass. We hold that it does not.

Background. In 2014, the defendant received a notice to appear (NTA) from immigration authorities, which officially commenced the process of deporting him to his native Guatemala. He had entered the United States without authorization in 1998, at age nineteen. At the time he received the NTA, he was married and had two sons, each a United States citizen. He retained immigration counsel and applied for cancellation of removal -- a procedure that, if allowed, would permit him to stay in the United States in light of the length of his residency and his family circumstances. Significant to the issue on appeal, cancellation of removal is not available to an individual who has committed a "crime involving moral turpitude." So far as the record shows and as the defendant acknowledges, cancellation of removal represented the defendant's only hope to avoid deportation.

While his immigration case was pending, in April 2015, the defendant drove his vehicle at a high rate of speed and crashed it into a truck before plowing it into a guardrail in Lynn. His eight year old son, who was unrestrained in the back seat of the vehicle, was propelled forward into the windshield,¹ cutting his face and lip and losing a tooth. Several empty containers of alcohol were found in bags and strewn on the floor of the defendant's vehicle. The defendant was unsteady on his feet, his eyes were glassy, and a strong odor of alcohol emanated from his mouth. During field sobriety assessments, he swayed noticeably from side to side, missed heel to toe, turned incorrectly, and raised his arms for balance in contravention of the instructions he received. Following his arrest, he consented to a breathalyzer test, which showed a 0.28 percent blood alcohol level. The defendant was charged with (1) operating a vehicle under the influence of alcohol (OUI), pursuant to G. L. c. 90, § 24 (1) (a ) (1) ; (2) operating with a suspended license, subsequent offense, pursuant to G. L. c. 90, § 23 ; (3) reckless endangerment of a child (reckless endangerment), pursuant to G. L. c. 265, § 13L ; (4) child endangerment while operating under the influence (OUI endangerment), pursuant to G. L. c. 90, § 24V ; and (5) three civil motor vehicle infractions.

During the course of representing the defendant, plea counsel learned that he was in the United States without authorization. With the assistance of an interpreter,² plea counsel told the defendant that his plea would "trigger dire immigration consequences." Plea counsel also learned of the pending removal proceeding in which the defendant had applied for cancellation of removal.

After consulting with the immigration unit of Committee for Public Counsel Services (CPCS) for advice concerning the effect of the defendant's pending criminal charges on his immigration status,³ plea counsel advised the defendant by letter⁴ that, if he pleaded guilty to the OUI and OUI endangerment charges, he was not automatically deportable, although it could make his immigration case more difficult to win. Plea counsel also advised the defendant that, if he pleaded guilty to the reckless endangerment charge, "you are deportable and you cannot win your immigration case." Plea counsel subsequently spoke with the defendant's immigration counsel, who similarly advised that "anything involving recklessness should be avoided" in light of the pending removal proceedings.

Thereafter, plea counsel attempted to negotiate a plea. During the hearing regarding this potential plea and with the assistance of an interpreter, plea counsel conveyed orally the advice he had previously given in writing regarding the immigration consequences of a plea. Ultimately, the plea was withdrawn after a judge indicated that she would not accept any recommendation that did not include a period of incarceration.

Several months later, plea counsel again attempted to negotiate a plea. The prosecutor agreed to drop the reckless endangerment charge, but only if the defendant agreed to committed time. Again, through the use of an interpreter, plea counsel conveyed orally the same advice regarding the immigration consequences of the plea he had previously given to the defendant first in writing and then orally at the prior plea hearing. The defendant would not agree to any jail time and rejected the plea deal even though it would avoid the one charge -- reckless endangerment -- that he was told would cause him to lose his pending removal case and result in deportation.

Accordingly, the prosecutor and defense counsel negotiated a different plea deal, pursuant to which the defendant agreed to plead to all the charges, including the reckless endangerment charge. During the colloquy with the defendant, a different judge (plea judge) warned him that, "if the offenses to which you are pleading guilty are ones that, under Federal law, presumptively mandate removal from the United States, and Federal officials decide to seek removal, it is practically inevitable that the disposition would result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States if you're not a citizen." The defendant stated that he understood. Plea counsel confirmed that the defendant understood that he faced "severe immigration consequences which are unavoidable." The defendant agreed to plead guilty to all the charges, including the reckless endangerment charge that he knew would result in the loss of his pending removal proceedings. In exchange, the defendant was able to leave court that day without having to serve any committed time.⁵

The plea occurred in February 2016, and by March 2016 the defendant was taken into custody by immigration authorities. As plea counsel had predicted and advised, the defendant's request for cancellation of removal was denied because of his guilty plea as to the reckless endangerment charge, and a final order of removal was entered in his removal proceedings.

A year after his plea, the defendant filed the present motion to withdraw his guilty plea, alleging that his plea counsel had failed to give him any warning concerning the immigration consequences of his guilty plea on the reckless endangerment charge and so had provided constitutionally ineffective assistance of counsel. The motion judge, who was also the plea judge, conducted an evidentiary hearing.⁶ The judge found that "[t]here were three lawyers involved in advising the [d]efendant about the immigration consequences of the charges, two immigration specialists and one experienced trial attorney"; the defendant was properly advised that his guilty plea to reckless endangerment would result in the loss of his pending removal proceedings and thus his deportation.⁷ She specifically found that he was "properly advised of his immigration exposure." Properly advised, the defendant voluntarily and knowingly opted to take a deal whereby he served no jail time but pleaded guilty to all the pending charges, including the one -- reckless endangerment -- he was specifically and unambiguously told would result in the loss of his removal proceedings.

Nonetheless, the judge concluded that because the defendant regrets his "shortsighted decision" and had "buyer's remorse," and because he had two United States citizen children, justice had not been done. On that basis, she vacated the defendant's plea, allowing his motion for a new trial. The Commonwealth now appeals.

Discussion. "A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394, 974 N.E.2d 645 (2012). "Judges are to apply the standard set out in Mass. R. Crim. P. 30 (b) rigorously, and should only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth" (quotations and citation omitted). Commonwealth v. Fanelli, 412 Mass. 497, 504, 590 N.E.2d 186 (1992). "This strict standard for postconviction motions promotes judicial efficiency and finality by discouraging a defendant from entering a guilty plea to test the weight of potential punishment ... only to seek to withdraw the plea later when adverse consequences appear" (quotation and citation omitted). Commonwealth v. Lopez, 426 Mass. 657, 662-663, 690 N.E.2d 809 (1998).

On appeal, we review the decision of the judge to grant a new trial for an abuse of discretion. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722, 978 N.E.2d 96 (2012). "[A] judge's discretionary decision constitutes an abuse of discretion where ... the judge made a clear error of judgment in weighing the factors relevant to the decision" (quotation and citation omitted). Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187, 26 N.E.3d 1107 (2015).

1. Regret is not a permissible basis for allowing withdrawal of a guilty plea. We conclude that the defendant's regret -- or, as the judge...