Commonwealth v. Lys

• Decision Date: 19 November 2018
• Docket Number: SJC-12476
• Parties: COMMONWEALTH v. Christ O. LYS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 1
110 N.E.3d 1201

COMMONWEALTH
v.
Christ O. LYS.

SJC-12476

Supreme Judicial Court of Massachusetts, Middlesex..

Argued September 5, 2018.
Decided November 19, 2018.

Patrick N. Long, for the defendant.

Gabriel Pell, Assistant District Attorney, for the Commonwealth.

John P. Zanini, Assistant District Attorney, for District Attorney for the Berkshire District & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

LOWY, J.

110 N.E.3d 1204

481 Mass. 2

The defendant pleaded guilty in the District Court to violating multiple controlled substances laws. He was a lawful permanent resident who had emigrated from Haiti, and his plea rendered him deportable.¹ The Federal government detained the defendant and initiated deportation proceedings against him. The defendant then filed a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that he had received ineffective assistance of counsel. The defendant claimed, inter alia, that he would not have pleaded guilty if his counsel had properly advised him about the plea's immigration consequences. The motion judge, who was also the plea judge, denied the motion after a nonevidentiary hearing. The defendant appealed, and the Appeals Court affirmed. Commonwealth v. Lys, 91 Mass.App.Ct. 718, 726, 80 N.E.3d 347 (2017). We allowed the defendant's application for further appellate review.

In his written decision, the judge found that plea counsel's performance was constitutionally deficient but that the deficient

481 Mass. 3

performance did not prejudice the defendant. The Commonwealth now contends that the judge's finding of deficient performance was erroneous.² The defendant contends that the judge erroneously found a lack of prejudice. We do not reach the merits of either issue. Rather, we conclude that the judge (1) might have failed to recognize his discretion to credit or discredit the defendant's affidavits as they pertained to plea counsel's allegedly deficient performance, even in the absence of an affidavit from plea counsel; and (2) failed to make factual findings about whether special circumstances relevant to the prejudice inquiry existed. Therefore, we vacate the denial of the motion for a new trial and remand the case to the District Court for proceedings consistent with this opinion.³

Background. 1. Plea. According to the prosecutor's summary of the Commonwealth's allegations at the plea hearing

110 N.E.3d 1205

and other undisputed record materials, the defendant sold marijuana and cocaine to an undercover police officer on various occasions, often in a school zone; he offered to sell marijuana and cocaine to the same undercover officer multiple times; and he conspired to violate controlled substances laws when he distributed the cocaine.

The defendant faced a twenty-eight-count complaint. He ultimately pleaded guilty to three counts of distributing marijuana, G. L. c. 94C, § 32C (a ) ; two counts of distributing cocaine, G. L. c. 94C, § 32A (a ), as amended through St. 2010, c. 256, § 68; two counts of conspiring to violate controlled substances laws, G. L. c. 274, § 7 ; thirteen counts of attempting to distribute a class D substance, G. L. c. 274, § 6 ; and two counts of attempting to distribute a class B substance, G. L. c. 274, § 6. The judge sentenced the defendant to eighteen months in a house of correction and a term of probation.

As part of the plea, the Commonwealth entered nolle prosequis with respect to four counts of violating a controlled substances law near a school, G. L. c. 94C, § 32J, as amended through St. 2010,

481 Mass. 4

c. 256, § 72; and dismissed two counts of possessing cocaine, G. L. c. 94C, § 34, as amended through St. 2008, c. 387, § 5. Each school zone charge would have carried a mandatory minimum sentence of two years in a jail or house of correction, from and after the defendant's sentences on the underlying drug crimes.

2. Motion for new trial. The defendant filed two affidavits in support of his motion for a new trial, both of which stated that plea counsel had not warned him about the plea's immigration consequences. Neither plea counsel nor motion counsel submitted affidavits.⁴ The judge observed in his decision that plea counsel did not testify or provide an affidavit and declared that, "[f]aced with this paucity of factual information," "the [c]ourt feels strongly that it must give the [d]efendant's and his [motion] [a]ttorney's [a]ffidavits full credit."⁵ Accordingly, the judge found that plea counsel had performed deficiently. But the judge went on to find that this deficient performance did not prejudice the defendant. Without making any factual findings, he concluded that "the court does not find the presence of any special circumstances" suggesting that the defendant would have placed particular emphasis on immigration consequences when deciding whether to plead guilty.

Discussion. A motion for a new trial may be granted "if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b). We examine the granting or denial of a new trial motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47, 38 N.E.3d 278 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). We extend "substantial deference" to a motion judge who was also the plea judge. Commonwealth v. Sylvain, 473 Mass. 832, 835, 46 N.E.3d 551 (2016), quoting Commonwealth v. Grant, 426 Mass. 667, 672, 689 N.E.2d 1336 (1998), S.C., 440 Mass. 1001, 793 N.E.2d 372 (2003).

110 N.E.3d 1206

1. Performance. "Both art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution guarantee a right to the effective assistance

481 Mass. 5

of counsel." Commonwealth v. Lykus, 406 Mass. 135, 138, 546 N.E.2d 159 (1989). To provide effective representation under the Sixth Amendment, counsel must advise his or her clients about a guilty plea's "truly clear" deportation consequences.⁶ Padilla v. Kentucky, 559 U.S. 356, 369, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). See Commonwealth v. Sylvain, 466 Mass. 422, 424, 995 N.E.2d 760 (2013) ( Sylvain I ), S.C., 473 Mass. 832, 46 N.E.3d 551 (2016) (applying same rule under art. 12 ). "Here, as in Padilla, the consequences of the defendant's plea were clear." Commonwealth v. Clarke, 460 Mass. 30, 46, 949 N.E.2d 892 (2011). See Commonwealth v. DeJesus, 468 Mass. 174, 180-181, 9 N.E.3d 789 (2014).

The judge found that the performance of the defendant's plea counsel was constitutionally deficient because plea counsel did not explain the plea's immigration consequences to the defendant. We do not review this decision's merits. Instead, we remand because the judge might not have recognized his discretion to credit or discredit the defendant's affidavits, even in the absence of an affidavit from plea counsel. See Commonwealth v. Lydon, 477 Mass. 1013, 1015, 75 N.E.3d 1116 (2017) (remanding when "judge did not recognize his discretionary authority"); Commonwealth v. Harris, 443 Mass. 714, 728, 733, 825 N.E.2d 58 (2005) (remanding when judge "declin[ed] to exercise any discretion").

Under Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001), a judge hearing a motion for a new trial must first decide whether the defendant's motion and affidavits present a "substantial issue." In making this determination, a motion judge need not accept statements in the defendant's affidavits as true, even if the statements are undisputed. Commonwealth v. Vaughn, 471 Mass. 398, 405, 30 N.E.3d 76 (2015). Instead, a motion judge should consider "both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue." Commonwealth v. Denis, 442 Mass. 617, 628, 814 N.E.2d 1080 (2004). Although a defendant's motion and affidavits "need not prove the issue raised," to be adequate "they must at least contain sufficient credible information to cast doubt on the issue." Id. at 629, 814 N.E.2d 1080.

If a motion judge finds that the motion and affidavits do not present a substantial issue, then "[t]he judge may rule on a motion

481 Mass. 6

for a new trial without an evidentiary hearing." Id. at 628, 814 N.E.2d 1080. If a motion judge finds that they do present a substantial issue, then the judge must hold an evidentiary hearing. Vaughn, 471 Mass. at 404, 30 N.E.3d 76, quoting Commonwealth v. Chatman, 466 Mass. 327, 334, 995 N.E.2d 32 (2013), S.C., 473 Mass. 840, 46 N.E.3d 1010 (2016) ("Only when the motion and affidavits raise a ‘substantial issue’ is an evidentiary hearing required"). Commonwealth v. Stewart, 383 Mass. 253, 257, 418 N.E.2d 1219 (1981) (stating that if defendant's newly discovered evidence raises substantial issue, then "he is entitled to an evidentiary hearing").

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