Commonwealth v. Edgar A. Lopez.

• Court: Massachusetts Appeals Court
• Decided: July 6, 2026
• Docket: 25-P-0760
• Status: Unpublished

Opinion

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-760

COMMONWEALTH

vs.

EDGAR A. LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2019, the defendant, Edgar A. Lopez, admitted to

sufficient facts on one charge of assault and battery on a

family or household member, in violation of G. L. c. 265,

§ 13M (a) (ABFHM). A District Court judge continued the case

without a finding, and the charge was dismissed one year later

following the defendant's successful completion of probation.

In 2025, the defendant filed a motion to withdraw his admission

to sufficient facts and for a new trial on the ground that the

attorney who represented him at the change of plea hearing (plea

counsel) failed to advise him adequately concerning the

potential immigration consequences of his plea, violating his

right to effective assistance of counsel. After an evidentiary hearing, the same judge who had accepted the defendant's

admission denied the motion. We affirm.

1. Background. The defendant is a native and citizen of

Guatemala. He fled Guatemala in 2005, when he was about

seventeen years old, and sought asylum in the United States.

The defendant avers that he immediately sought asylum, and that

his application for asylum has been pending ever since.

In 2018, the defendant was arrested and subsequently

charged with committing ABFHM against his then wife. He was

also charged with strangulation or suffocation in violation of

G. L. c. 265, § 15D (b). Plea counsel was appointed to

represent him.

Rather than proceed to trial, in June 2019 the defendant

reached an agreement with the Commonwealth: in return for his

acceptance of responsibility on the ABFHM charge, the charge for

strangulation or suffocation would be dismissed. The defendant

requested a continuance without a finding for one year; the

Commonwealth requested a guilty finding and an eighteen-month

term of probation. The judge accepted the defendant's

recommendation. At the hearing, plea counsel represented that

he had discussed the immigration consequences of the disposition

with the defendant; the defendant stated that he understood this

advice. The defendant successfully completed his probationary

period, and in July 2020 the ABFHM charge was dismissed.

2 In February 2025, the defendant filed a motion to vacate

his admission. In his affidavit supporting the motion, the

defendant claimed that plea counsel never asked about his

immigration status or whether he was a United States citizen,

that immigration consequences were never discussed, that counsel

never told him "there were devastating immigration consequences

to making an admission to a crime of domestic violence," and

that he was not told that he "would be deported based on the

plea [he] took in this matter." He also stated that plea

counsel did not advise him how the admission would affect his

pending asylum application.

The same judge who had accepted the defendant's admission

held an evidentiary hearing at which plea counsel testified; the

defendant rested on his affidavit. The judge declined to credit

the "self-serving statements in [the defendant's] affidavit

. . . concerning the lack of advice" he received from plea

counsel. Rather, the judge credited the affidavit and testimony

of plea counsel, which showed that plea counsel learned on the

very day of arraignment that the defendant was not a United

States citizen, was from Guatemala, and had only a work permit.

The judge found that the defendant was advised that the charges

against him were "very serious," that they would carry "severe

deportation consequences and that he should contact an

immigration attorney," and that tendering an admission on the

3 ABFHM charge would mean "almost definite deportation." The

judge also credited plea counsel's testimony that he reviewed

the plea sheet with the defendant, which included the statutory

immigration warnings regarding deportation, exclusion from

admission, and denial of naturalization. Rejecting the

defendant's claim that plea counsel never discussed the

consequences of the admission, the judge found that plea counsel

repeatedly advised the defendant "about the likelihood of

deportation as a consequence of any plea disposition."

Accordingly, the judge found that the defendant failed to raise

a credible claim that plea counsel's performance was

ineffective. The judge likewise found that the defendant had

not carried his burden to prove prejudice, primarily because he

lacked any substantial ground of defense and the "compelling

factor" in his decision to admit to sufficient facts was to

avoid a jail sentence.

2. Discussion. An admission to sufficient facts is "the

functional equivalent of a guilty plea." Commonwealth v.

Greene, 400 Mass. 144, 145 (1987). See Commonwealth v. Furr,

454 Mass. 101, 101 n.1 (2009). "A motion to withdraw a guilty

plea is treated as a motion for a new trial pursuant to Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)."

Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014).

4 The defendant argues that plea counsel was ineffective

because he did not advise the defendant that a noncitizen who

does not plead guilty, but merely admits to sufficient facts, on

a charge of domestic violence is deportable under the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i).

See Commonwealth v. Barros, 494 Mass. 100, 104 (2024). This is

true "notwithstanding the fact that the underlying charge has

been or will be dismissed." Commonwealth v. Villalobos, 437

Mass. 797, 803 (2002). In addition, the defendant argues that

plea counsel did not sufficiently investigate or advise him how

the admission would affect his status as an asylum seeker. 1 Had

he been so advised, the defendant contends, he would not have

admitted his guilt but instead would have proceeded to trial.

To succeed on a motion to vacate a guilty plea based on

ineffective assistance of counsel, the defendant must show both

deficient performance and prejudice. See Commonwealth v.

Clarke, 460 Mass. 30, 46-47 (2011). That is, the defendant must

demonstrate that plea counsel failed to give him

1 The Commonwealth argues that the only evidence that the defendant had a pending application for asylum was his affidavit, which the judge discredited. For the purposes of this appeal, we assume that the defendant had a pending asylum application at the time of the plea. Likewise, we assume that the admission to sufficient facts made the defendant "inadmissible," meaning ineligible to receive a visa or to be admitted to the United States, under 8 U.S.C. § 1182(a)(2)(A), and made him ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1).

5 constitutionally adequate advice and that he would have insisted

on going to trial had he been competently counseled. See

Commonwealth v. Sylvain, 466 Mass. 422, 437-438 (2013);

Commonwealth v. Henry, 88 Mass. App. Ct. 446, 451-452, 455

(2015). The defendant bears the burden of proof on this

question, "and a judge is entitled to discredit affidavits he or

she does not find credible." Commonwealth v. Marinho, 464 Mass.

115, 123 (2013). We review a judge's action on a motion to

withdraw a guilty plea for an abuse of discretion or a

significant error of law. See DeJesus, 468 Mass. at 178.

a. Counsel's performance. In this case, the judge found

that plea counsel advised the defendant that the result of his

admission would be "almost definite deportation." This advice

was adequate to inform the defendant that the consequences of an

admission to sufficient facts were equally severe as the

consequences of a guilty plea. To provide constitutionally

adequate representation, however, plea counsel must provide

advice that is specific and tailored to a defendant's particular

immigration status:

"Where a criminal defense attorney learns that his or her client is a noncitizen, the attorney must make further reasonable inquiry of the client to determine, where possible, the client's immigration status. . . . [T]he failure of a criminal defense attorney to make a reasonable inquiry of the client regarding his or her citizenship and immigration status is sufficient to satisfy the deficient performance prong of the ineffective assistance analysis."

6 Commonwealth v. Lavrinenko, 473 Mass. 42, 52-53 (2015).

The judge found that plea counsel learned from the outset

that the defendant was from Guatemala, not a United States

citizen, and had a work permit. However, plea counsel admitted

that he did not inquire about the defendant's specific

immigration status and that he was not aware that the defendant

had a pending application for asylum, and the judge made no

finding to the contrary. Instead, plea counsel advised the

defendant to contact an immigration attorney.

"We recognize that the ordinary, fallible criminal defense

attorney may not be an expert on immigration law, but we expect

such an attorney who learns of a complex immigration issue

either to research the applicable immigration law or to seek

guidance from an attorney knowledgeable in immigration law."

Lavrinenko, 473 Mass. at 54 n.15. Here, plea counsel did not

make adequate inquiry to enable him to provide advice regarding

the defendant's specific circumstances. He gave no advice

concerning the effect of the admission on the defendant's asylum

application, or whether the plea would make the defendant

ineligible for cancellation of removal. "Because plea counsel

failed to make a reasonable inquiry of the defendant to learn of

this 'red flag,' counsel failed to learn what he needed to know

to advise his client competently regarding the immigration

7 consequences of a guilty plea." Id. at 54. His performance was

constitutionally deficient in this regard.

b. Prejudice. "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.'" Clarke, 460 Mass.

at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The

defendant "must provide sufficient 'credible facts' to

demonstrate a reasonable probability that a reasonable person in

the defendant's circumstances would have gone to trial if given

constitutionally effective advice." Commonwealth v. Lys, 481

Mass. 1, 7 (2018), quoting Lavrinenko, 473 Mass. at 55. The

defendant averred that if he had been informed that he was

admitting "to a crime of domestic violence, a deportable

offense, a crime of moral turpitude, and potentially a

particularly serious crime under immigration law," and if he had

been warned of the resultant "catastrophic immigration

consequences of deportation, inadmissibility, denial of [his]

asylum and cancellation of removal," he would have opted to take

his case to trial.

The judge was explicit in stating that he did not credit

the defendant's affidavit "concerning the lack of advice" from

plea counsel. It is implicit in the judge's decision that he

8 also did not believe that receiving more nuanced advice about

inadmissibility, denial of asylum, or cancellation of removal

would have made any difference in the defendant's decision to

admit to sufficient facts. "It is not the role of this court to

second-guess such credibility determinations where, as here, the

record supports them." Commonwealth v. Santana, 497 Mass. 120,

137 (2026). See Commonwealth v. Vaughn, 471 Mass. 398, 405

(2015) ("the credibility, weight, and impact of the affidavits

are entirely within the motion judge's discretion").

A judge evaluating prejudice must determine "whether the

defendant has shown 'that a decision to reject the plea bargain

would have been rational under the circumstances.'" Lys, 481

Mass. at 7, quoting Clarke, 460 Mass. at 47. A defendant may

prove rationality by showing that he had an available ground of

defense, a viable chance at negotiating a better plea deal, or

"special circumstances" that would have caused him to place

particular emphasis on immigration consequences when deciding

whether to plead guilty. See Lys, supra at 10-11; Clarke, supra

at 47-48. In evaluating prejudice, the judge focused on the

absence of a viable ground of defense, and the defendant makes

no credible argument that a viable ground of defense existed.

Rather, the defendant argues that the judge failed to consider

his claim of "special circumstances."

9 The defendant alleges that he would have placed special

emphasis on the immigration consequences of his plea because he

had fled Guatemala when he was seventeen, had lived in the

United States for fourteen years, and had two young children who

were United States citizens. 2 However, "[t]he existence of

special circumstances does not automatically result in

prejudice." Lys, 481 Mass. at 10. If the defendant

demonstrates special circumstances, the judge must next

determine "whether, under the totality of the circumstances,

there is a reasonable probability that a reasonable person in

the defendant's circumstances would have gone to trial if given

constitutionally effective advice." Id. at 7-8.

We infer that the judge did not find defendant's

allegations of special circumstances credible or that, under the

totality of the circumstances, the defendant would have gone to

trial if he had received more specific advice. Although for

some defendants, "even a small chance of acquittal may be

sufficient to show that it was reasonably probable that a person

in the position of the defendant would have rejected the plea

and insisted on going to trial," Lavrinenko, 473 Mass. at 63,

2 Although the defendant's brief refers to fleeing from persecution in Guatemala, his affidavit does not mention persecution, and there is no other record evidence supporting this claim. Likewise, his affidavit focuses primarily on his current wife and his strong relationship with his stepchildren, bonds that did not exist at the time of the plea.

10 the defendant did not make that choice when he had the

opportunity. Plea counsel advised the defendant that

deportation would be "almost definite," and both plea counsel

and the judge warned him that deportation was "practically

inevitable." The judge also found that the defendant placed

importance on avoiding a probable jail sentence. To be sure,

given current circumstances, the consequences of the defendant's

admission may look much more dire today than they did in 2019.

But we cannot say the judge abused his discretion in concluding

there was no reasonable probability that, at that time the

defendant elected to admit to sufficient facts, better work by

plea counsel would have made a difference in his decision. 3

Order denying motion for new trial affirmed.

By the Court (Massing, Ditkoff & Hand, JJ. 4),

Clerk

Entered: July 6, 2026.

3 The defendant also contends that because he was unaware of the immigration consequences of his admission, it was not offered knowingly and voluntarily, in violation of his due process rights. This argument is without merit. See Commonwealth v. Taron T., 104 Mass. App. Ct. 219, 231-233 (2024).

4 The panelists are listed in order of seniority.