NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-815
COMMONWEALTH
vs.
ANGEL CAMACHO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from the order of a District Court judge
in 2025 denying the defendant's motion to withdraw his 2009
guilty plea to possession of cocaine with the intent to
distribute. In his motion, the defendant claimed that his plea
counsel had been ineffective. We infer the motion judge
concluded that (1) plea counsel's failure to file certain
pretrial motions was the result of a reasonable tactical
decision and (2) the defendant failed to demonstrate prejudice
resulting from plea counsel's failure to advise him of the full
panoply of adverse immigration consequences of his plea.
Because we discern in those conclusions neither abuse of
discretion nor other error, we affirm.
Background. We briefly summarize the undisputed facts and
procedural history relevant to our analysis, reserving certain details for later discussion. At the time of his plea, the
defendant was not a United States citizen. In an affidavit in
support of his motion for a new trial, he averred that he fled
to the United States from his native Colombia in 2002 after he
and his family were threatened by people identifying themselves
as guerillas and that he lived in Massachusetts between 2002 and
2015. In 2006, the defendant was scheduled for a removal
hearing in Immigration Court. He obtained immigration counsel
and requested relief from removal.
In January 2009, while the removal proceedings were
pending, the defendant was arraigned in the Superior Court on
charges including trafficking in 200 or more grams of cocaine.1
See G. L. c. 94C, § 32E (b) (4), as amended through St. 1992,
c. 396, §§ 1-3. He was released on bail, but in May 2009, while
the removal proceedings and the Superior Court drug charges were
pending, he was arrested and arraigned on a complaint in the
District Court -- the case at issue in this appeal -- alleging
three counts: count 1, speeding; count 2, operating under the
influence of intoxicating liquor (OUI); and count 3, possession
of cocaine with the intent to distribute, as a subsequent
1 He was also charged in that case with two school zone violations and possession of cocaine with the intent to distribute.
2 offense. See G. L. c. 94C, § 32A, as amended through St. 1991,
c. 391 (describing penalties for drug convictions).
Plea counsel represented the defendant in both the Superior
Court case and the District Court case and negotiated pleas in
both of them. On November 5, 2009, the defendant pleaded guilty
in the Superior Court to a reduced charge of trafficking in
twenty-eight grams or more, but less than one hundred grams of
cocaine, see G. L. c. 94C, § 32E (b) (2), as amended through
St. 1992, c. 396, §§ 1-3, and was sentenced to a term of from
six to eight years in State prison.2 A month later, the
defendant pleaded guilty in this case to counts 2 (OUI) and 3
(as amended to possession of cocaine with the intent to
distribute, first offense). He was sentenced by agreement to
terms of nine months in the house of correction to run
concurrently with each other and with the State prison sentence
imposed in the Superior Court.3
In 2023, the defendant moved in this case to withdraw his
guilty plea to count 3, arguing that his plea counsel had
provided ineffective assistance. The defendant supported his
motion with his own affidavit, as well as those of plea counsel
2 The remaining three charges in the Superior Court case, including the possession charge, were nol prossed.
3 He agreed to a finding of "not responsible" on the civil infraction.
3 and appellate counsel; he did not provide an affidavit of
immigration counsel. A judge (motion judge)4 ruled on the motion
and denied it after a nonevidentiary hearing. The defendant
appealed from the motion judge's ruling, and in an unpublished
decision, a panel of this court vacated the order denying the
motion to withdraw the plea and remanded the case to the
District Court for an evidentiary hearing. See Commonwealth v.
Camacho, 104 Mass. App. Ct. 1114 (2024). On remand, the motion
judge held an evidentiary hearing, at which the defendant
presented his own testimony and that of his plea counsel. After
the hearing, the judge again denied the defendant's motion to
withdraw his plea, and this appeal followed.
Discussion. 1. Standard of review. 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).
See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A judge
may grant a motion for a new trial only "if it appears that
justice may not have been done." Mass. R. Crim. P. 30 (b). See
Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Judges are
obligated to "apply the standard set out in [rule 30 (b)]
rigorously, and should only grant a postsentence motion to
4 The motion judge is not the judge who accepted the defendant's plea, as the plea judge had retired.
4 withdraw a plea if the defendant comes forward with a credible
reason which outweighs the risk of prejudice to the
Commonwealth" (quotations and citations omitted). Commonwealth
v. Fanelli, 412 Mass. 497, 504 (1992). In conducting our review
of the judge's denial of a motion under rule 30 (b), "[w]e
accept the judge's findings of fact if supported by the
evidence, because the judge who heard the witnesses testify is
the 'final arbiter on matters of credibility.'" Commonwealth v.
DeJesus, 468 Mass. 174, 178 (2014), quoting Scott, supra.
Having done so, we review for abuse of discretion or other
"significant error of law." Commonwealth v. Cotto, 471 Mass.
97, 105 (2015).
Where the motion to withdraw a guilty plea is based on a
claim of ineffective assistance of plea counsel, 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).
2. Failure to file pretrial motions. At the time of the
defendant's plea in this case, he had viable motions to suppress
evidence of the cocaine found when a State police trooper
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-815
COMMONWEALTH
vs.
ANGEL CAMACHO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal stems from the order of a District Court judge
in 2025 denying the defendant's motion to withdraw his 2009
guilty plea to possession of cocaine with the intent to
distribute. In his motion, the defendant claimed that his plea
counsel had been ineffective. We infer the motion judge
concluded that (1) plea counsel's failure to file certain
pretrial motions was the result of a reasonable tactical
decision and (2) the defendant failed to demonstrate prejudice
resulting from plea counsel's failure to advise him of the full
panoply of adverse immigration consequences of his plea.
Because we discern in those conclusions neither abuse of
discretion nor other error, we affirm.
Background. We briefly summarize the undisputed facts and
procedural history relevant to our analysis, reserving certain details for later discussion. At the time of his plea, the
defendant was not a United States citizen. In an affidavit in
support of his motion for a new trial, he averred that he fled
to the United States from his native Colombia in 2002 after he
and his family were threatened by people identifying themselves
as guerillas and that he lived in Massachusetts between 2002 and
2015. In 2006, the defendant was scheduled for a removal
hearing in Immigration Court. He obtained immigration counsel
and requested relief from removal.
In January 2009, while the removal proceedings were
pending, the defendant was arraigned in the Superior Court on
charges including trafficking in 200 or more grams of cocaine.1
See G. L. c. 94C, § 32E (b) (4), as amended through St. 1992,
c. 396, §§ 1-3. He was released on bail, but in May 2009, while
the removal proceedings and the Superior Court drug charges were
pending, he was arrested and arraigned on a complaint in the
District Court -- the case at issue in this appeal -- alleging
three counts: count 1, speeding; count 2, operating under the
influence of intoxicating liquor (OUI); and count 3, possession
of cocaine with the intent to distribute, as a subsequent
1 He was also charged in that case with two school zone violations and possession of cocaine with the intent to distribute.
2 offense. See G. L. c. 94C, § 32A, as amended through St. 1991,
c. 391 (describing penalties for drug convictions).
Plea counsel represented the defendant in both the Superior
Court case and the District Court case and negotiated pleas in
both of them. On November 5, 2009, the defendant pleaded guilty
in the Superior Court to a reduced charge of trafficking in
twenty-eight grams or more, but less than one hundred grams of
cocaine, see G. L. c. 94C, § 32E (b) (2), as amended through
St. 1992, c. 396, §§ 1-3, and was sentenced to a term of from
six to eight years in State prison.2 A month later, the
defendant pleaded guilty in this case to counts 2 (OUI) and 3
(as amended to possession of cocaine with the intent to
distribute, first offense). He was sentenced by agreement to
terms of nine months in the house of correction to run
concurrently with each other and with the State prison sentence
imposed in the Superior Court.3
In 2023, the defendant moved in this case to withdraw his
guilty plea to count 3, arguing that his plea counsel had
provided ineffective assistance. The defendant supported his
motion with his own affidavit, as well as those of plea counsel
2 The remaining three charges in the Superior Court case, including the possession charge, were nol prossed.
3 He agreed to a finding of "not responsible" on the civil infraction.
3 and appellate counsel; he did not provide an affidavit of
immigration counsel. A judge (motion judge)4 ruled on the motion
and denied it after a nonevidentiary hearing. The defendant
appealed from the motion judge's ruling, and in an unpublished
decision, a panel of this court vacated the order denying the
motion to withdraw the plea and remanded the case to the
District Court for an evidentiary hearing. See Commonwealth v.
Camacho, 104 Mass. App. Ct. 1114 (2024). On remand, the motion
judge held an evidentiary hearing, at which the defendant
presented his own testimony and that of his plea counsel. After
the hearing, the judge again denied the defendant's motion to
withdraw his plea, and this appeal followed.
Discussion. 1. Standard of review. 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).
See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A judge
may grant a motion for a new trial only "if it appears that
justice may not have been done." Mass. R. Crim. P. 30 (b). See
Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Judges are
obligated to "apply the standard set out in [rule 30 (b)]
rigorously, and should only grant a postsentence motion to
4 The motion judge is not the judge who accepted the defendant's plea, as the plea judge had retired.
4 withdraw a plea if the defendant comes forward with a credible
reason which outweighs the risk of prejudice to the
Commonwealth" (quotations and citations omitted). Commonwealth
v. Fanelli, 412 Mass. 497, 504 (1992). In conducting our review
of the judge's denial of a motion under rule 30 (b), "[w]e
accept the judge's findings of fact if supported by the
evidence, because the judge who heard the witnesses testify is
the 'final arbiter on matters of credibility.'" Commonwealth v.
DeJesus, 468 Mass. 174, 178 (2014), quoting Scott, supra.
Having done so, we review for abuse of discretion or other
"significant error of law." Commonwealth v. Cotto, 471 Mass.
97, 105 (2015).
Where the motion to withdraw a guilty plea is based on a
claim of ineffective assistance of plea counsel, 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).
2. Failure to file pretrial motions. At the time of the
defendant's plea in this case, he had viable motions to suppress
evidence of the cocaine found when a State police trooper
5 conducted an inventory search of his car, see Commonwealth v.
Alvarado, 420 Mass. 542, 552-553 (1995), and to dismiss so much
of count 3 as alleged an intent to distribute the "approximately
nine grams" of cocaine the defendant was alleged to have
possessed, see Commonwealth v. Acosta, 81 Mass. App. Ct. 836,
840-841 (2012).5 See Camacho, 104 Mass. App. Ct. 1114. Failure
to file a viable motion to suppress is ordinarily substandard
practice, see, e.g., Commonwealth v. Henderson, 486 Mass. 296,
302 (2020); we assume without deciding that the same is true of
failure to file a viable motion to dismiss. However, "[a]
strategic or tactical decision by counsel will not be considered
ineffective assistance unless that decision was 'manifestly
unreasonable' when made." Commonwealth v. Acevedo, 446 Mass.
435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722,
728 (1978).
After the evidentiary hearing, the judge concluded that
plea counsel made a "reasonable decision" to advise the
defendant to plead guilty to count 3 without pursuing motions to
suppress and dismiss. We discern neither abuse of discretion
nor other error in the judge's determination. At the
evidentiary hearing on the defendant's motion, plea counsel
5 We express no opinion about the likelihood of success of either of those motions, however.
6 testified that the crime for which the defendant was indicted in
the Superior Court exposed the defendant to a fifteen-year
minimum mandatory sentence and that the "collective strategy" he
developed with the defendant focused on minimizing the length of
the Superior Court sentence and then resolving the charges in
this case with "concurrent time." He further testified that he
accomplished this goal, having negotiated a reduction in the
Superior Court trafficking charge that limited the defendant's
committed sentence to from six to eight years, and as the
dockets reflect, quickly finalizing a plea in this case that
ensured that the defendant's total incarcerated sentence did not
increase.6 Where we infer that the judge credited plea counsel's
testimony on these points, we are satisfied that the evidence
was adequate to show that plea counsel's decisions were both
"strategic," Acevedo, 446 Mass. at 442, and not "manifestly
unreasonable." Id., quoting Adams, 374 Mass. at 728. The judge
did not err in concluding that plea counsel's failure to file
6 There was no guarantee that the disposition of this case would have included concurrent sentencing. Indeed, given that the defendant was arrested in this case while on bail on the Superior Court case and that he was sentenced in that case before this one, any sentence in this case should mandatorily have been imposed "consecutively to the earlier sentence." G. L. c. 279, § 8B. See Commonwealth v. Hickey, 429 Mass. 1027, 1027 (1999). Plea counsel testified that he was aware of that statute and "convinced the ADA not to impose a consecutive sentence."
7 the motions to suppress and to dismiss did not constitute
ineffective assistance.
3. Failure to advise the defendant of "truly clear"
adverse immigration consequences. Effective representation
requires plea counsel to advise the client of the "truly clear"
adverse immigration consequences of a guilty plea. Commonwealth
v. Lys, 481 Mass. 1, 5 (2018), quoting Padilla v. Kentucky, 559
U.S. 356, 369 (2010). It is undisputed that in this case, the
defendant's guilty plea to possession of cocaine with the intent
to distribute was a plea to an aggravated felony for the
purposes of immigration law, such that its effect included a
foreclosure of any relief from removal, see, e.g., Moncrieffe v.
Holder, 569 U.S. 184, 187-188 (2013), and a virtual guarantee
that he could never return to the United States following either
removal or his choice to leave. See 8 U.S.C. § 1182(a)(2);
Commonwealth v. Valdez, 475 Mass. 178, 184-185 (2016). Plea
counsel testified that he was aware that the defendant was not a
United States citizen but that he did not further inquire into
the defendant's immigration status, did not know that the
defendant was subject to removal proceedings at the time of the
plea, and did not himself advise the defendant of the
immigration consequences of pleading guilty to an aggravated
felony in this case.
8 The judge discredited the defendant's testimony that he did
not discuss his criminal cases with the lawyer representing him
in the immigration proceedings and appears to have believed plea
counsel's opinion that the defendant knew about the consequences
of his plea. Nevertheless, where plea counsel's uncontroverted
testimony at the hearing was that he neither inquired about the
defendant's exact immigration status nor advised the defendant
of specific immigration consequences related to the plea, the
defendant met his burden of demonstrating that counsel's
performance fell below accepted standards. See Lavrinenko, 473
Mass. at 53 (defense counsel's failure to make "a reasonable
inquiry of the client regarding his or her citizenship and
immigration status" satisfied "deficient performance prong of
the ineffective assistance analysis"); DeJesus, 468 Mass. at 182
(defense counsel's failure to provide defendant with specific
advice about certainty of deportation satisfied performance
prong of ineffective assistance claim).
The defendant did not, however, adequately prove prejudice
stemming from counsel's failure to advise him of the
consequences of pleading guilty to an aggravated felony in this
case. This is because at the time of his guilty plea in this
case, he had already pleaded guilty in the Superior Court to
trafficking cocaine. Because trafficking cocaine is also an
aggravated felony, see 8 U.S.C. § 1101(a)(43)(B), the adverse
9 consequences about which plea counsel in this case failed to
advise him had already been triggered by the time of the
defendant's plea to count 3 here. Any prejudice resulting from
the later plea and plea counsel's failure to warn him of the
consequences of that plea is, thus, "speculative." Commonwealth
v. DeSorbo, 49 Mass. App. Ct. 910, 911 (2000). In these
circumstances, we decline to disturb the judge's order dated
April 18, 2025, denying the defendant's motion to withdraw his
guilty plea.
Order dated April 18, 2025, denying motion to withdraw guilty plea, affirmed.
By the Court (Massing, Ditkoff & Hand, JJ.7),
Clerk
Entered: June 23, 2026.
7 The panelists are listed in order of seniority.