Commonwealth v. Saidi
| Decision Date | 23 June 2022 |
| Docket Number | 21-P-277 |
| Parties | COMMONWEALTH v. BRUCE SAIDI. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
In 2007 the defendant was charged with kidnapping and assault and battery by means of a dangerous weapon; he pleaded guilty to both charges in 2009. Thereafter, he was sentenced to serve five years to five years and one day in prison, to be followed by five years of probation.[1] In 2014 the defendant moved to withdraw his guilty pleas based on his claim that he received ineffective assistance from his guilty plea counsel. The defendant appeals from the denial of that motion. We affirm.
"A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." United States v. Broce, 488 U.S. 563, 569 (1989). "A motion to withdraw a guilty plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v Furr, 454 Mass. 101, 106 (2009). "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 (2012). See Commonwealth v Lopez, 426 Mass. 657, 662-663 (1998). Nonetheless, Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See Commonwealth v. Hunt, 73 Mass.App.Ct. 616, 619 (2009).
Here, the defendant claims that his motion to withdraw his guilty plea should have been allowed because his plea counsel was ineffective for failing to provide him with adequate advice regarding the immigration consequences of his plea. In these circumstances, "the defendant bears the burden of showing that his attorney's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that he suffered prejudice because of his attorney's unprofessional errors." Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In the context of a claim brought under Padilla v. Kentucky, 559 U.S. 356 (2010), the prejudice showing requires the defendant to "establish[] 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.'" Clarke, supra at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Relative to the first prong, the defendant claims that plea counsel advised him that, "Immigration won't deport you because if they do, it would be like giving you a death sentence." The defendant also claims that he was not made aware "that [his] kidnapping conviction constituted an aggravated felony," the "charge subjected [him] to mandatory deportation," and the "sentence . . . makes [him] ineligible for a discretionary form of relief from deportation called 'cancellation of removal.'"
These claims are supported by affidavits from the defendant, as well as his family and friends, which the judge was not required to credit. See Commonwealth v. Lys, 481 Mass. 1, 5 (2018); Commonwealth v. Torres, 469 Mass. 398, 403 (2014). Also notably absent was an affidavit from plea counsel. See Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 550 (2014) (motion judge "is entitled to draw a negative inference from the defendant's failure to secure an affidavit from trial or plea counsel"). Given this, and the other arguments raised by the Commonwealth, we are doubtful that the defendant satisfied his burden under the performance prong of Saferian, but we need not resolve the question as the defendant cannot satisfy the second prong, i.e., the prejudice prong. See Clarke, 460 Mass. at 46-47.
While the defendant claims in his affidavit that he would have gone to trial had he been properly advised by his attorney, the record does not support that assertion as a reasonable probability. The plea judge provided the immigration warnings to the defendant. The defendant also signed the plea tender sheet, which noted that he had been advised that he was subject to adverse immigration consequences as a result of his pleas. Despite being warned of the adverse immigration consequences of his pleas, he still chose to plead guilty. While these warnings alone are "not an adequate substitute for defense counsel's professional obligation to advise [his] client of the likelihood of specific and dire immigration consequences that might arise from such a plea," they are relevant to the prejudice prong. Clarke, 460 Mass. at 48 n.20.
Furthermore, the plea judge carefully advised the defendant of all the constitutional and procedural protections he would be giving up if he chose to forgo a trial, but the defendant nonetheless chose to plead guilty. When the defendant admitted that he felt pressure, the judge told him if he did not want to plead guilty, the judge did not want him to do so, which the defendant understood. In fact, when the defendant voiced his concern about being properly represented, the plea judge spoke to his attorney at sidebar,[2] and then permitted a nearly two-hour recess to allow the defendant and counsel to further discuss the matter. After the recess, the plea judge again explained to the defendant that the decision to either plead guilty, or to have a trial, was entirely his. The defendant then said he would plead guilty, and the judge again read the defendant the rights he would forgo by pleading guilty.
Even if the defendant could show that he would have chosen to go to trial, he must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S at 372. To prove this, "the defendant bears the substantial burden of showing that (1) he had an available, substantial ground of [defense] . . . that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, 460 Mass. at 47-48 (quotation, footnote omitted). If the defendant fails to establish any of the three factors, then he cannot establish prejudice. See Commonwealth v. Lastowski, 478 Mass. 572, 577-579 (2018). The defendant claims he has satisfied the third factor.[3] We disagree.
Specifically under the third factor, the defendant...
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