Commonwealth v. Sylvain

• Decision Date: 13 September 2013
• Docket Number: SJC–11400.
• Parties: COMMONWEALTH v. Kempess SYLVAIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 422

995 N.E.2d 760

COMMONWEALTH

v.Kempess SYLVAIN.

SJC–11400.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted May 6, 2013.

Decided Sept. 13, 2013.

Wendy S. Wayne, Committee for Public Counsel Services (Laura Mannion Banwarth with her) for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Christopher N. Lasch, of Colorado, for Massachusetts Legal Academics.

Sejal Zota, of North Carolina, & Paromita Shah, Todd C. Pomerleau, & Sarah Unger for National Immigration Project of the National Lawyers Guild & others.

David M. Siegel for David M. Siegel & another.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

In 2007, the defendant, Kempess Sylvain, a noncitizen lawfully residing in the United States, pleaded guilty to possession of a controlled substance, subjecting him to automatic deportation from the United States. After the defendant's conviction was final, we decided Commonwealth v. Clarke, 460 Mass. 30, 34, 37, 45, 949 N.E.2d 892 (2011)( Clarke ), which held that the rule announced in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 1486, 176 L.Ed.2d 284 (2010)( Padilla ), regarding a criminal defendant's right under the Sixth Amendment to the United States Constitution to accurate advice as to the deportation consequences of a guilty plea, was not a “new” rule under Teague v. Lane, 489 U.S. 288, 301, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)( Teague ), and therefore applied retroactively to cases on collateral review. Thereafter, the defendant filed a motion for a new trial seeking to vacate his guilty plea on the ground that his attorney was constitutionally deficient in erroneously advising him that there would be no deportation consequences stemming from his guilty plea. The defendant's motion was denied, and he timely appealed. While the defendant's appeal was pending, the United States Supreme Court decided Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 1105, 1111, 185 L.Ed.2d 149 (2013)( Chaidez ), which held that Padilla did announce a “new” rule under Teague and, thus, does not apply retroactively to collateral challenges under Federal law. We granted the defendant's application for direct appellate review to consider whether we should continue to give Padilla retroactive effect in light of Chaidez.

We conclude, as a matter of Massachusetts law and consistent with our authority as provided in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008)( Danforth ), that the Sixth Amendment right enunciated in Padilla was not a “new” rule and, consequently, defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally on Padilla grounds. We thus affirm our decision in Clarke. We further conclude that under art. 12 of the Massachusetts Declaration of Rights, defense counsel has a duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty or being convicted at trial and that this right also applies retroactively to cases on collateral review.

Having decided that the defendant may seek relief under the Sixth Amendment and art. 12, we conclude that although the defendant's counsel's erroneous advice may have been constitutionally inadequate, without additional findings we are unable to determine whether the defendant was sufficiently prejudiced to warrant vacating his guilty plea and ordering a new trial. Consequently, we remand the case to the Boston Municipal Court judge for further findings and proceedings consistent with this opinion.¹

Background. The material facts are not in dispute. On the morning of April 15, 2007, a Boston police officer patrolling along Blue Hill Avenue in the Dorchester section of Boston witnessed the defendant engaging in a sexual act with a prostitute. As the officer approached, the defendant removed several small plastic baggies from his coat pocket and placed them in his mouth. Believing that the baggies contained “crack” cocaine and fearing that the defendant might overdose, the officer attempted to intercede. Although the defendant ingested the drugs, a subsequent search of his jacket revealed an additional baggie of “crack” cocaine. The incident took place within 1,000 feet of a child care center.

Following his arrest, the defendant was charged with one count of possession of cocaine with the intent to distribute, G.L. c. 94C, § 32A ( a ); and one count of a drug violation in a school zone, G.L. c. 94C, § 32J. The latter charge carried a minimum mandatory sentence of two years' imprisonment. In exchange for the dismissal of the school zone and distribution related charges, the defendant pleaded guilty to simple possession of cocaine, G.L. c. 94C, § 34, and was sentenced to eleven months in the house of correction suspended for two years. The defendant's conviction became final on October 2, 2007.²

In January, 2012, the defendant filed a motion to vacate his guilty plea pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). Citing Padilla, supra, and Clarke, supra, the defendant contended that, as a noncitizen, “he was denied effective assistance of counsel when his trial counsel failed to advise him of the immigration consequences that could result from his guilty plea” and, therefore, the “plea was obtained in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights.” ³

In support of his motion, the defendant submitted an affidavit of his counsel averring that, “At the time I represented [the defendant], I was aware that he was not a citizen of the United States [and] I advised [the defendant] ... that this disposition was not likely to result in his deportation because it was a conviction for straight [p]ossession with a sentence of under a year.” The defendant also filed his own affidavit stating that, but for his counsel's erroneous advice, “I would not have agreed to plead guilty to something that would surely result in my deportation.” The motion judge denied, without written findings, both the defendant's motion to vacate and his subsequent motion for reconsideration. The defendant appealed, and during the pendency of the appeal, the Supreme Court decided Chaidez. The defendant then filed an application for direct appellate review, which we granted.

Discussion. The defendant urges us to continue to apply Padilla retroactively, despite the Supreme Court's decision in Chaidez. In particular, he contends that Danforth, supra at 282, 128 S.Ct. 1029, allows us to continue to apply the retroactivity framework from Teague, supra, but nevertheless reach a divergent conclusion from Chaidez. Specifically, he asserts that despite the Supreme Court's conclusion in Chaidez that Padilla announced a “new” rule, we are free to arrive at the opposite conclusion as a matter of State law and, by doing so, provide greater protection for defendants challenging their convictions on collateral review. Alternatively, the defendant urges us to recognize a remedy under art. 12 that parallels the Sixth Amendment right enunciated in Padilla.⁴

The Commonwealth responds by construing the defendant's argument about the retroactivity of the Sixth Amendment right in Padilla as attempting to discard our State law version of the Teague framework and replace it with an undefined alternative. Although the Commonwealth acknowledges our authority to depart from the Supreme Court on this issue based on its decision in Danforth, the Commonwealth maintains that doing so ignores that prior to Padilla, criminal defense attorneys had no obligation to advise their clients of the immigration consequences of a guilty plea. The Commonwealth further contends that there is no basis for interpreting art. 12 as providing a right to accurate advice from counsel regarding the deportation consequences of a guilty plea that would apply retroactively to cases on collateral review.

1. Retroactivity. a. Sixth Amendment right to effective assistance of counsel following Padilla. In Padilla, supra at 1486, the United States Supreme Court held that the Sixth Amendment requires a criminal defense attorney to provide accurate advice regarding the deportationconsequences arising from a guilty plea. According to the Court, failure to provide such advice is a “constitutional deficiency” that satisfies the first prong of the test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)( Strickland ).⁵Padilla, supra at 1483. The Court did not explicitly state whether Padilla would apply retroactively to cases on collateral review.

Thereafter, in Clarke, supra at 45, 949 N.E.2d 892, we were required to confront whether the Federal constitutional right recognized in Padilla applied retroactively to criminal convictions that were final at the time Padilla was decided. In our decision, we relied on the analytical framework set forth in Teague, supra at 310, 109 S.Ct. 1060, which we adopted in Commonwealth v. Bray, 407 Mass. 296, 300–301, 553 N.E.2d 538 (1990)( Bray ). Under Teague and its progeny, although “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced,” id., “old rule[s] appl[y] both on direct and collateral review.” Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).⁶ As this framework suggests, the determination whether a case announces a “new” rule is at the heart of the retroactivity analysis. According to the Supreme Court in Teague, supra at 301, 109 S.Ct. 1060, “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government [or] if the result was not dictated by...