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
22-P-535
COMMONWEALTH
vs.
FERNANDO A. AGUIAR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a District Court
judge denying, after an evidentiary hearing, his motion to
withdraw a guilty plea. The defendant's motion was based on
ineffective assistance of counsel, specifically counsel's
failure to properly advise the defendant, a lawful permanent
resident of the United States, of the immigration consequences
of his plea pursuant to Padilla v. Kentucky, 559 U.S. 356
(2010). Determining that the judge erred in, among other
things, disregarding the affidavit of the defendant's plea
counsel and misapprehending the basis of the defendant's removal
from the United States, we reverse.
Background. In November 2019, the forty-five year old
defendant was arraigned in the District Court on a three-count complaint and detained based on dangerousness.1 He remained in
custody at the time of the scheduled trial date in January 2020.
At that time, the defendant submitted to the judge an agreed-
upon tender of plea proposing that the defendant would plead
guilty on all charges and be sentenced to eighteen months
imprisonment, with sixty days to serve (deemed served), and the
balance suspended for two years with probationary conditions.
During the plea colloquy, the prosecutor explained that "the
alcohol situation is the problem here" and that the disposition
allowed the defendant to be released in order to resolve that
problem or face the prospect of returning to jail.2
In December 2021, after being placed in removal proceedings
and detained by United States Immigration and Customs
Enforcement (ICE), the defendant moved to withdraw his plea on
the basis that he was unaware that his plea would result in "per
1 Count 1 charged strangulation or suffocation and carried a potential sentence of two and one-half years' imprisonment. See G. L. c. 265, § 15D. Count 2 charged assault and battery and carried a potential sentence of two and one-half years' imprisonment. See G. L. c. 265, § 13A. Count 3 charged vandalism and carried with it a potential sentence of two years' imprisonment. See G. L. c. 266, § 126A.
2 According to the prosecutor's recitation of the crimes, the defendant's daughter arrived at a parking lot of an establishment in order to pick up her brother and encountered the defendant shouting at her not to disrespect him; she believed he was intoxicated. The defendant pushed her up against her car and held his forearm against her neck, threw her towards the car and raised his hand as if to punch her, and kicked her car, damaging it.
2 se" removal from the United States. Although the motion was
supported by the affidavits of the defendant and his plea
counsel, both averring that they were unaware of the immigration
consequences of the plea, the judge indicated that he would not
take plea counsel's affidavit without his testimony.3
An evidentiary hearing on the motion was scheduled for
February 16, 2022, postponed to February 22, 2022, and again
postponed to March 10, 2022.4 Plea counsel was available to
testify on the first two dates, but the judge was unable to hear
the matter. On the third date, defense counsel represented that
plea counsel had been hospitalized the night before and that his
3 The defendant's attorney offered that plea counsel was available by phone, but the judge insisted on live testimony. The judge also criticized the defendant's affidavit as being "unsigned," even though it had an electronic signature. See G. L. c. 110G, § 9. See also Supreme Judicial Court Updated Order Regarding Electronic Signatures by Attorneys and Self- Represented Parties (June 11, 2020) ("In all courts and case types, whenever an attorney or self-represented party is required to sign a document to be served on another party or filed with the court, including an affidavit that must be signed by an attorney or self-represented party under the penalties of perjury, the attorney or self-represented party may electronically sign, unless the court specifically orders otherwise").
4 The evidentiary hearing was scheduled only after the defendant filed a renewed motion to withdraw his plea, in accordance with the judge's instructions. We note that the defendant's original filing sufficed to present a substantial issue entailing an evidentiary hearing concerning factual issues. See Commonwealth v. Lys, 481 Mass. 1, 6 (2018).
3 future availability was uncertain.5 Counsel offered that plea
counsel's affidavit could be considered in place of his
testimony and proceeded with the remaining available witnesses:
the defendant and his daughter, the victim of the crimes to
which the defendant had pleaded guilty.6
After hearing, the judge issued a decision in which he gave
"no weight to plea counsel's affidavit in determining whether he
gave ineffective advice to the Defendant." He found that the
defendant had failed to meet his burden in proving deficient
performance by counsel because the evidence failed to establish
"exactly what the [d]efendant was advised." Additionally, the
judge found that "no evidence was presented" that the defendant
had any substantial ground of defense or that an alternate,
nondeportable sentence could have been obtained. Although the
judge acknowledged that the defendant having immigrated to the
United States as a child, having lived in the United States
since that time, and having no family in Portugal were
"significant issues," he found no other special circumstances.
Determining that the defendant was removable due to a 1995
5 Plea counsel ultimately passed away during the pendency of this appeal.
6 As relayed by defense counsel, there was pressure to resolve the matter expeditiously as the defendant was in ICE custody and in imminent danger of removal. According to counsel, the defendant had been removed to Portugal, his country of origin, by the time of oral argument in this case.
4 conviction of assault and battery by means of a dangerous
weapon, the judge found that the immigration consequences
attendant to the charges at issue would not have been
determinative. The judge concluded that the defendant would
still have pleaded guilty, even knowing the immigration
consequences, reasoning that since it took twenty years for
removal proceedings to begin, the defendant likely would have
taken the chance that ICE "'would not catch up to him' in the
future." This appeal followed.
Discussion. We review the denial of a defendant's motion
to withdraw a guilty plea, treated as a motion for new trial,
for significant error of law or other abuse of discretion. See
Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "That
discretion, however, 'is not boundless and absolute.'"
Commonwealth v. Kolenovic, 471 Mass 664, 672 (2015), quoting
Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we
will not disturb a judge's subsidiary findings which are
warranted by the evidence, 'ultimate findings and conclusions of
law, particularly those of constitutional dimensions, are open
for our independent review.'" Commonwealth v. Cousin, 478 Mass.
608, 615 (2018), quoting Commonwealth v. Walter, 396 Mass 549,
553-554 (1986).
Where a motion to withdraw a guilty plea is premised upon
ineffective assistance of counsel, the defendant must show
5 "serious incompetency, inefficiency, or inattention of counsel
-- behavior of counsel falling measurably below that which might
be expected from an ordinary fallible lawyer -- and, if that is
found, then, typically, whether it has likely deprived the
defendant of an otherwise available, substantial ground of
defence." DeJesus, 468 Mass. at 178, quoting Commonwealth v.
Clarke, 460 Mass. 30, 45 (2011).
It is well established by now that failure of a lawyer to
advise a client of the "truly clear" immigration consequences of
a plea is deficient performance. See Clarke, 460 Mass. at 42,
quoting Padilla, 559 U.S. at 369 There is no dispute on appeal
that the defendant's conviction of strangulation or suffocation
entailing an eighteen-month sentence constitutes an aggravated
felony for which the immigration consequence is truly clear --
mandatory removal from the United States. See Commonwealth v.
Gordon, 82 Mass. App. Ct. 389, 398 (2012). The only question is
whether plea counsel so advised the defendant. The testimony of
the defendant, as well as the affidavit of plea counsel,
affirmed that no such advice was given, and there was no
evidence to the contrary. Nevertheless, the judge found that
the defendant had failed to meet his burden on plea counsel's
deficient performance.
While a judge need not credit even uncontradicted evidence,
Commonwealth v. Lys, 481 Mass. 1, 5 (2018), there should be a
6 reasoned basis for doing so. See Commonwealth v. Vaughn, 471
Mass. 398, 405 (2015) (articulating reason for acceptance or
rejection of affidavit enables appellate court to determine
whether judge acted within discretion). Here, the judge did not
explicitly discredit either the defendant's testimony or plea
counsel's affidavit concerning the immigration advice
communicated. Rather, the judge found that the defendant
"failed to produce any evidence as to the exact nature of his
discussions with his attorney of [fifteen]-plus years." Yet,
the defendant specifically testified that (aside from the
warnings on the tender of plea form) he never discussed with
plea counsel anything related to immigration on this or any
other case plea counsel represented him on.7
Consistently, plea counsel averred that he advised the
defendant of the "general alien warning contained on the tender
of plea sheet, as required," and that he negotiated the plea
with the district attorney, felt that it was a favorable one,
and "advised [the defendant] to take it." He also specifically
averred that, at the time he negotiated the plea and advised the
defendant to take it, he "was not aware of the grave penalties
7 Although a judge may always want a more fulsome explanation, the record does not support a finding that the defendant "failed to produce any evidence" on the nature of his discussions with his attorney.
7 [the defendant] would inevitably face as a result" and therefore
"did not advise [the defendant] of these eventual outcomes."
Although the Commonwealth had the ability to present its
own evidence on this point, it did not. In her cross-
examination of the defendant, the prosecutor simply brought out
the defendant's prior criminal record and the fact that he had
gone over the tender of plea form with plea counsel and was
given the alien warnings by the judge during the plea colloquy.8
In closing, the prosecutor made no argument regarding the
defendant's showing on plea counsel's deficient performance and
instead addressed only the prejudice element.
While credibility determinations are within the judge's
discretion, the judge must exercise such discretion. See Lys,
481 Mass. at 6-7 (remand where judge assumed defendant's
affidavit must be credited in absence of plea counsel's
affidavit). See also Commonwealth v. Harris, 443 Mass. 714, 728
(2005) (remand where judge declined to exercise discretion in
8 In its brief, the Commonwealth argues that, even if plea counsel did not advise the defendant of the specific immigration consequences of the plea, the defendant received sufficient advice through the tender of plea form, which was updated to include the language from Padilla, warning that under certain circumstances, deportation is "practically inevitable." Regardless of specificity, advice on a form is necessarily conditional and generic. See Commonwealth v. Petit-Homme, 482 Mass. 775, 788 (2019). It is insufficient to substitute for the advice of counsel to an individual defendant regarding specific consequences of a particular plea.
8 ruling on motion in limine). Here, the judge erred in
disregarding the affidavit of plea counsel on the basis that
plea counsel did not testify. See Commonwealth v. Sylvain, 473
Mass. 832, 838-839 (2016) (noting that rule on motions for
postconviction relief contemplates resolution by affidavits in
some circumstances); Mass. R. Crim. P. 30 (c) (3), as appearing
in 435 Mass. 1501 (2001). While a judge may take into account
"the suspicious failure to provide pertinent information from an
expected and available source," Commonwealth v. Goodreau, 442
Mass. 341, 354 (2004), this was not such a case. Plea counsel
was ready and willing to testify on multiple occasions prior to
his unfortunate hospitalization.9 As there was no reasoned basis
to reject the undisputed evidence of plea counsel's deficient
advice in this case, we conclude that the defendant met his
burden on the performance prong of the ineffective assistance of
counsel test.
9 To the extent that the judge rejected plea counsel's affidavit as "not detailed" and "otherwise inadequate," the judge also erred. The affidavit clearly set forth that plea counsel was unaware of the specific immigration consequences of the plea, that he therefore did not advise the defendant of those consequences, and that his immigration advice consisted of the warnings contained in the tender of plea form. We note that this admission of ineffective assistance was against plea counsel's interest and therefore likely to be credible. See Mass. G. Evid. § 804(b)(3) (2023) (hearsay statement against interest admissible as inherently reliable).
9 Turning to the question of prejudice, the defendant was
required to show that, had he been properly advised of the
consequences of the plea, a decision to reject the plea would
have been rational under the circumstances. See Clark, 460
Mass. at 47. To prove rationality, the defendant was required
to show at least one of the following: (1) an available,
substantial ground of defense that he could have pursued; (2) a
reasonable probability that he could have negotiated a plea
bargain that did not result in dire immigration consequences; or
(3) special circumstances supporting the conclusion that he
placed, or would have placed, particular emphasis on immigration
consequences in deciding whether to plead guilty. Id. at 47-48.
If shown, the defendant must establish that "there is a
reasonable probability that a reasonable person in the
defendant's circumstances would have gone to trial if given
constitutionally effective advice." Lys, 481 Mass. at 7-8.
"The prejudice determination rests on the totality of the
circumstances, in which special circumstances regarding
immigration consequences should be given substantial weight."
Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015).
Although the defendant did not put forth any defense to the
charges, plea counsel's affidavit provided a detailed
explanation of how an alternate plea could reasonably have been
structured to avoid immigration consequences. He indicated that
10 the exact same guilty plea to the charges could have been
entered into with the sentence (or perhaps an even harsher
sentence) being attached to count 2 or 3, with a concurrent
sentence of less than one year on count 1.10 Although the
Commonwealth had the opportunity to present its own evidence on
this point, it did not. It did not even suggest in closing
argument that plea counsel's proposed alternative disposition
was not reasonably probable. The judge's refusal to consider
plea counsel's affidavit apparently led him to erroneously
conclude that the defendant failed to show a reasonable
probability that he could have negotiated an alternate plea.
Although the judge did recognize the defendant's special
circumstances of having immigrated to this country as a child,
having lived in the United States his entire life since that
time, and having no family in Portugal, the judge did not
acknowledge any other special circumstances, such as having a
10This is borne out by the fact that the tender of plea form proposed a single disposition to resolve all three charges in the complaint, without attaching the sentence to any particular charge. Ultimately, the defendant received the same sentence on each charge, with the sentences running concurrently. Since count 1 did not include a minimum mandatory sentence, and no apparent importance was given the particular charge attached to the sentence, it appears that merely attaching the same disposition to a different count would have been a reasonable probability, particularly where all parties, including the prosecutor, victim, and judge, acknowledged that the primary concern was getting the defendant to address his problem with alcohol.
11 wife and two children in the United States.11 Despite these
special circumstances, however, the judge determined that, in
the totality of the circumstances, the defendant was not
prejudiced. The judge concluded that, due to a 1995 conviction
of assault and battery by means of a dangerous weapon, the
defendant was already per se deportable as an aggravated felon.
He reasoned that since "it took [ICE] over [twenty] years to
begin [the defendant's] deportation proceedings from his earlier
convictions, . . . it is not irrational to believe that he would
have continued to take his chances that [ICE] 'would not catch
up to him' in the future."
Notwithstanding the assumption that the prior conviction of
assault and battery by means of a dangerous weapon constituted
an aggravated felony, the judge's totality of the circumstances
analysis was flawed by the mistaken premise that the defendant's
removal proceeding was based on a 1995 conviction at all. In
fact, the defendant's removal was premised solely on the 2020
conviction of strangulation or suffocation.12 Although the judge
11The judge appeared to discount the relevance of the defendant's family ties because his wife and one of his children did not themselves testify. We note that, like plea counsel, the defendant's wife and that child were present and prepared to testify on prior occasions. And of course the defendant's other child -- the victim of the crimes -- did testify in support of the defendant.
12Although the defendant had a number of prior convictions on his record that may have had some immigration consequences, as
12 determined that the case against the defendant was strong, and
due to his criminal record, the defendant was likely to receive
a significantly harsher sentence after trial and conviction, his
maximum exposure on the charges was seven years; the plea that
the defendant accepted entailed an eighteen-month sentence if
the defendant failed his probationary conditions. The defendant
testified that he would not have pleaded guilty to avoid a
prison term if he knew that the plea itself would result in his
removal from his home country of over forty years, separation
from his wife and children, and exile to a country where he has
no family. There is nothing in the record that undermines this
testimony. Indeed, the position is an eminently rational one.13
Added to this is the likely prospect that plea counsel could
have fashioned a plea disposition that avoided dire immigration
consequences altogether, the defendant met his burden of showing
that he was prejudiced.
explained in the defendant's closing argument at the evidentiary hearing and again in his brief on appeal, none of them subjected him to mandatory removal at the time of his 2020 plea.
13In Lee v. United States, 582 U.S. 357 (2017), the Court considered the issue of prejudice under similar circumstances, where the case against the defendant was strong but where the defendant had lived in the United States for nearly three decades, had strong family connections to the United States, and there was no evidence of any ties to his country of origin. In the backdrop of those special circumstances, Court stated: "We cannot agree that it would be irrational for a defendant in Lee's position to reject the plea offer in favor of trial." Id. at 371.
13 Conclusion. The order denying the motion to withdraw the
guilty plea is reversed, the judgments are vacated, and the
findings are set aside.
So ordered.
By the Court (Vuono, Singh & Englander, JJ.14),
Assistant Clerk
Entered: February 12, 2024.
14 The panelists are listed in order of seniority.