Commonwealth v. Rodriguez
| Decision Date | 22 December 2021 |
| Docket Number | 20-P-1187 |
| Citation | 179 N.E.3d 1137 (Table) |
| Parties | COMMONWEALTH v. Anthony RODRIGUEZ. |
| Court | Appeals Court of Massachusetts |
The defendant appeals the denial of his motion for a new trial, in which he sought to withdraw his guilty plea.2 On appeal, he claims that the judge improperly denied the motion because: (1) the plea judge failed to provide the defendant with the required immigration warnings pursuant to G. L. c. 278, § 29D, (2) plea counsel provided ineffective assistance of counsel for failing to discuss with the defendant the possible negative immigration consequences of the guilty plea, and (3) the motion judge abused her discretion in failing to conduct an evidentiary hearing.3 We affirm.
1. Statutory immigration warnings. "Postconviction motions to withdraw pleas are treated as motions for a new trial" (citations omitted). Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). A judge may grant a motion for a new trial any time "it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "We review the denial of a motion to withdraw a guilty plea to determine whether there has been a significant error of law or other abuse of discretion" (citation and quotation omitted). Commonwealth v. Lewis, 96 Mass. App. Ct. 354, 357 (2019). However, as is the case here, we award "particular deference" to the rulings of a motion judge who also served as the plea judge in the case. See id.
In his affidavit for his motion for a new trial, the defendant alleges he "does not recall" the court providing him with the immigration warnings required by G. L. c. 278, § 29D. Further, the defendant claims that we should presume the defendant did not receive such warnings because the record is devoid of any proof that such warnings were actually provided. We disagree.
Prior to accepting a defendant's guilty plea, a judge must advise the defendant of the following: "If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States." G. L. c. 278, § 29D. The Commonwealth bears the burden of providing an affirmative record that such warnings were given, regardless of how much time has passed since the defendant's guilty plea. See Commonwealth v. Marques, 84 Mass. App. Ct. 203, 204-205 (2013). Where there is no affirmative record to demonstrate that the defendant received such warnings, we ordinarily presume that the warnings were not given.4 See id. at 205.
Here, the judge was permitted to discredit the defendant's affidavit, where he claims the statutory immigration warnings, pursuant to G. L. c. 278, § 29D, were not provided. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016) (). Furthermore, the record contains the green sheets in which the judge certified that the defendant was advised of the statutory immigration warnings in accordance with the exact language found in G. L. c. 278, § 29D.5 Cf. Marques, 84 Mass. App. Ct. at 206 (). Such green sheets demonstrate an affirmative record that the defendant did in fact receive the statutory immigration warnings at his guilty plea, and as such, the defendant is not entitled to the presumption.6 See Commonwealth v. Cortez, 86 Mass. App. Ct. 789, 790 n.6 (2014) (). Cf. Commonwealth v. Grannum, 457 Mass. 128, 134 (2010) (). Therefore, in light of our particular deference to the judge, we discern neither an abuse of discretion, nor a significant error of law.7 See Lewis, 96 Mass. App. Ct. at 357.
2. Ineffective assistance of counsel. The defendant also claims that plea counsel was ineffective in failing to discuss the immigration consequences that would result from his guilty plea. We disagree.
To prevail on his claim of ineffectiveness of counsel, the defendant must show: (1) that counsel's conduct fell measurably below that which might be expected from an ordinary fallible lawyer; and (2) that this conduct likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must prove both deficient performance and prejudice" (emphasis added). Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).
"In the context of a guilty plea, in order to satisfy the prejudice requirement, the defendant has the burden of establishing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (citation and quotations omitted). Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246-247 (2015). Moreover, the defendant must also demonstrate that the decision to insist on going to trial would have been rational by: (1) showing he had an available, substantial ground of defense, (2) there is a reasonable probability that a different plea bargain could have been negotiated at the time, or (3) there exist special circumstances to support the conclusion that the defendant placed, or would have placed, particular emphasis on immigration consequences when deciding to plead guilty. See id. at 247.
Here, contrary to the defendant's claim, plea counsel did in fact provide the defendant with adequate immigration warnings. In particular, the judge found that plea counsel's handwritten notes demonstrate that he "spoke with defendant on seven separate occasions regarding immigration issues and immigration consequences." During those occasions, plea counsel recommended that the defendant speak with an immigration attorney, and advised him that the plea could have negative immigration consequences, including deportation.8 The defendant, in his own affidavit accompanying his motion for a new trial, even admits such facts, as he states that he was informed by counsel that "as a consequence of the convictions of violating the restraining order that [he] may be deported."
At bottom, the burden is on the defendant to demonstrate that there existed "serious incompetency, inefficiency, or inattention" on the part of counsel. Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 396 (2012), quoting Saferian, 366 Mass. at 96. Here, where plea counsel did in fact advise the defendant of the potential immigration consequences that could result from his guilty plea, including the risk of deportation, the defendant has failed to meet his burden. See Commonwealth v. Lopez, 96 Mass. App. Ct. 34, 40 (2019). Therefore, where the defendant has failed to demonstrate that plea counsel's performance was deficient in any way, we discern no error in the denial of the motion.9
3. Evidentiary hearing. Finally, the defendant argues a remand is necessary where the judge erred in deciding the motion for a new trial without conducting an evidentiary hearing. We disagree.
"A judge may decide a motion for a new trial without holding an evidentiary hearing if ‘no substantial issue is raised by the motion or affidavits.’ " Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), citing Mass. R. Crim. P. 30 (c) (3). "On appeal, we review a decision not to hold such a hearing for an abuse of discretion" (citation omitted). Id. "To sustain an appellate claim that a judge committed an abuse of discretion, it must be demonstrated that ‘no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her]’ " (citation omitted). Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). Where the judge discredited the defendant's self-serving affidavit, the green...
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