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-1054
COMMONWEALTH
vs.
JAMES KIPTANUI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, James Kiptanui, appeals from the denial of
his motion to withdraw his guilty pleas based on ineffective
assistance of plea counsel under art. 12 of the Massachusetts
Declaration of Rights and Commonwealth v. Lavrinenko, 473 Mass.
42 (2015). We vacate the orders denying his motion and remand
for an evidentiary hearing.
Background. The defendant, a refugee from Kenya, pleaded
guilty in 2018 to assault and battery on a family or household
member, in violation of G. L. c. 265, § 13M (a), and assault and
battery by means of a dangerous weapon (a knife), in violation
of G. L. c. 265, § 15A (b). Two years later, represented by new
counsel, he filed a motion to withdraw his guilty pleas on the
ground that plea counsel failed to inquire into his immigration
status and, as a result, failed to advise him that the convictions would result in presumptively mandatory deportation
proceedings and deprive him of the ability to obtain
discretionary relief from removal. The defendant supported his
motion with his own affidavit and that of plea counsel. The
defendant stated that he did not remember plea counsel asking
him about his immigration status, and that plea counsel did not
provide specific advice on how the pleas would affect his
refugee status, but that counsel did warn him in general terms
that his pleas might have adverse immigration consequences.
Plea counsel averred that he had no specific memory of what he
told the defendant. Although his standard practice was to ask
clients about their citizenship, he was unaware that the
defendant was not a citizen, he did not remember if he asked the
defendant about his citizenship, and he did not remember the
defendant telling him he was not a citizen.
The same judge who had taken the defendant's guilty pleas
held a nonevidentiary hearing on the defendant's motion. At the
hearing it came to light that a few months before the defendant
pleaded guilty, the Department of Homeland Security (DHS) had
initiated deportation proceedings against him based on a 2012
Ohio conviction for grand theft of a motor vehicle. The
defendant was not in DHS custody at the time of his guilty
pleas. Indeed, it appears that he was being held in the house
of correction on this matter, his bail having been revoked for
2 failing to appear at the originally scheduled trial date, when
he was served with the notice to appear for removal proceedings.
The judge denied the motion, finding that the defendant had
failed to demonstrate that he was unaware of the potential
immigration consequences of his guilty pleas. The judge did not
credit the defendant's assertion that he did not understand the
mandatory consequences of his guilty pleas, inferring that he
would have known the consequences based on the already pending
removal proceedings against him. The judge noted that she had
given the defendant the required statutory immigration warnings
and that the defendant admitted that counsel had informed him
that the guilty pleas might have immigration consequences;
however, she did not credit the defendant's statement that there
was no further discussion of the consequences. The defendant
timely filed a notice of appeal.
After the defendant had filed his appellate brief, the
Commonwealth, with the defendant's assent, obtained a stay of
the appeal to permit the parties "to resolve the matter in the
District Court." The parties then filed a joint motion to
reconsider, asking the judge to "[m]ake specific findings as to
how plea counsel advised the defendant," whether this advice was
constitutionally adequate, and, if not, whether the defendant
was prejudiced.
3 The judge held a second nonevidentiary hearing. At the
hearing, the defendant, through counsel, conceded that he would
have difficulty proving prejudice arising from plea counsel's
failure to advise him about deportation, given that the
defendant was already in deportation proceedings based on the
Ohio conviction. The defendant continued to press his claim
that plea counsel was ineffective for failing to advise him that
pleading guilty to a crime of violence would prevent him from
obtaining discretionary relief from removal and that this
failure resulted in prejudice. The judge again found that the
defendant had been advised of immigration consequences in
general terms, but added that plea counsel failed to advise the
defendant about how the pleas would affect his immigration
status because the defendant failed to advise counsel about the
pending deportation proceedings. Again the judge denied the
motion, finding that it foundered on the defendant's failure to
prove the first prong of the Commonwealth v. Saferian, 366 Mass.
89, 96 (1974), standard. This appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for a new trial. See Lavrinenko, 473 Mass. at 47.
"We examine the granting or denial of a new trial motion 'only
to determine whether there has been a significant error of law
or other abuse of discretion.'" Commonwealth v. Lys, 481 Mass.
1, 4 (2018), quoting Lavrinenko, supra.
4 "[E]ven where, as here, a refugee is inadmissible and
deportable, the refugee may still seek an adjustment of status
from refugee to lawful permanent resident by applying for a
waiver of inadmissibility." Lavrinenko, 473 Mass. at 49-50,
citing 8 U.S.C. § 1159(c) (2012). To competently advise the
defendant about the immigration consequences of his guilty
pleas, it was essential for plea counsel to understand the
defendant's status. See Lavrinenko, supra at 53-54.
"Therefore, the 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." Id. at 53.
The defendant argues that he presented a substantial
showing that plea counsel did not conduct sufficient inquiry
into his immigration status or provide the advice required by
Lavrinenko and asks that we remand for an evidentiary hearing.
A judge must hold an evidentiary hearing on a new trial motion
if the defendant presents a "substantial issue," an inquiry that
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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
22-P-1054
COMMONWEALTH
vs.
JAMES KIPTANUI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, James Kiptanui, appeals from the denial of
his motion to withdraw his guilty pleas based on ineffective
assistance of plea counsel under art. 12 of the Massachusetts
Declaration of Rights and Commonwealth v. Lavrinenko, 473 Mass.
42 (2015). We vacate the orders denying his motion and remand
for an evidentiary hearing.
Background. The defendant, a refugee from Kenya, pleaded
guilty in 2018 to assault and battery on a family or household
member, in violation of G. L. c. 265, § 13M (a), and assault and
battery by means of a dangerous weapon (a knife), in violation
of G. L. c. 265, § 15A (b). Two years later, represented by new
counsel, he filed a motion to withdraw his guilty pleas on the
ground that plea counsel failed to inquire into his immigration
status and, as a result, failed to advise him that the convictions would result in presumptively mandatory deportation
proceedings and deprive him of the ability to obtain
discretionary relief from removal. The defendant supported his
motion with his own affidavit and that of plea counsel. The
defendant stated that he did not remember plea counsel asking
him about his immigration status, and that plea counsel did not
provide specific advice on how the pleas would affect his
refugee status, but that counsel did warn him in general terms
that his pleas might have adverse immigration consequences.
Plea counsel averred that he had no specific memory of what he
told the defendant. Although his standard practice was to ask
clients about their citizenship, he was unaware that the
defendant was not a citizen, he did not remember if he asked the
defendant about his citizenship, and he did not remember the
defendant telling him he was not a citizen.
The same judge who had taken the defendant's guilty pleas
held a nonevidentiary hearing on the defendant's motion. At the
hearing it came to light that a few months before the defendant
pleaded guilty, the Department of Homeland Security (DHS) had
initiated deportation proceedings against him based on a 2012
Ohio conviction for grand theft of a motor vehicle. The
defendant was not in DHS custody at the time of his guilty
pleas. Indeed, it appears that he was being held in the house
of correction on this matter, his bail having been revoked for
2 failing to appear at the originally scheduled trial date, when
he was served with the notice to appear for removal proceedings.
The judge denied the motion, finding that the defendant had
failed to demonstrate that he was unaware of the potential
immigration consequences of his guilty pleas. The judge did not
credit the defendant's assertion that he did not understand the
mandatory consequences of his guilty pleas, inferring that he
would have known the consequences based on the already pending
removal proceedings against him. The judge noted that she had
given the defendant the required statutory immigration warnings
and that the defendant admitted that counsel had informed him
that the guilty pleas might have immigration consequences;
however, she did not credit the defendant's statement that there
was no further discussion of the consequences. The defendant
timely filed a notice of appeal.
After the defendant had filed his appellate brief, the
Commonwealth, with the defendant's assent, obtained a stay of
the appeal to permit the parties "to resolve the matter in the
District Court." The parties then filed a joint motion to
reconsider, asking the judge to "[m]ake specific findings as to
how plea counsel advised the defendant," whether this advice was
constitutionally adequate, and, if not, whether the defendant
was prejudiced.
3 The judge held a second nonevidentiary hearing. At the
hearing, the defendant, through counsel, conceded that he would
have difficulty proving prejudice arising from plea counsel's
failure to advise him about deportation, given that the
defendant was already in deportation proceedings based on the
Ohio conviction. The defendant continued to press his claim
that plea counsel was ineffective for failing to advise him that
pleading guilty to a crime of violence would prevent him from
obtaining discretionary relief from removal and that this
failure resulted in prejudice. The judge again found that the
defendant had been advised of immigration consequences in
general terms, but added that plea counsel failed to advise the
defendant about how the pleas would affect his immigration
status because the defendant failed to advise counsel about the
pending deportation proceedings. Again the judge denied the
motion, finding that it foundered on the defendant's failure to
prove the first prong of the Commonwealth v. Saferian, 366 Mass.
89, 96 (1974), standard. This appeal followed.
Discussion. A motion to withdraw a guilty plea is treated
as a motion for a new trial. See Lavrinenko, 473 Mass. at 47.
"We examine the granting or denial of a new trial motion 'only
to determine whether there has been a significant error of law
or other abuse of discretion.'" Commonwealth v. Lys, 481 Mass.
1, 4 (2018), quoting Lavrinenko, supra.
4 "[E]ven where, as here, a refugee is inadmissible and
deportable, the refugee may still seek an adjustment of status
from refugee to lawful permanent resident by applying for a
waiver of inadmissibility." Lavrinenko, 473 Mass. at 49-50,
citing 8 U.S.C. § 1159(c) (2012). To competently advise the
defendant about the immigration consequences of his guilty
pleas, it was essential for plea counsel to understand the
defendant's status. See Lavrinenko, supra at 53-54.
"Therefore, the 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." Id. at 53.
The defendant argues that he presented a substantial
showing that plea counsel did not conduct sufficient inquiry
into his immigration status or provide the advice required by
Lavrinenko and asks that we remand for an evidentiary hearing.
A judge must hold an evidentiary hearing on a new trial motion
if the defendant presents a "substantial issue," an inquiry that
focuses on the seriousness of the issue presented and the
adequacy of the defendant's showing. See Lys, 481 Mass. at 6;
Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015). A claim of
ineffective assistance based on a failure to explain immigration
consequences qualifies as a serious issue. See Lys, supra;
5 Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Accordingly,
we focus on the adequacy of the defendant's showing.
A judge considering a motion to vacate a guilty plea has
considerable discretion in assessing the adequacy of the
defendant's showing, including whether to credit or discredit
the defendant's affidavits and materials. See Lys, 481 Mass. at
5-7; Vaughn, 471 Mass. at 405. "Although a defendant's motion
and affidavits 'need not prove the issue raised,' to be adequate
'they must at least contain sufficient credible information to
cast doubt on the issue.'" Lys, supra at 5, quoting Denis, 442
Mass. at 629. A judge is not required to accept a defendant's
affidavit as true, even if uncontroverted. See Lys, supra at 5;
Vaughn, supra.
Here, the defendant's showing raised doubts as to whether
plea counsel made a sufficient inquiry into his refugee status
or provided adequate advice concerning the effect of a guilty
plea on his prospects for discretionary relief from removal.
The judge's findings to the contrary cannot fairly be drawn from
the record.
Plea counsel had no memory of discussing the defendant's
citizenship. His affidavit did not establish that he ever
learned of the defendant's refugee status or pending removal
proceedings -- or advised him accordingly. The judge made no
finding that plea counsel gave the defendant any advice other
6 than that "a plea might result in immigration consequences." In
her findings after the first hearing, the judge discredited the
defendant's assertion that plea counsel did not provide any
further advice specific to the defendant's circumstances, but
the judge's disbelief cannot establish that plea counsel did in
fact provide such advice. Disbelief of a statement in an
affidavit is not proof of the opposite. See Commonwealth v.
Jackson, 468 Mass. 1009, 1012 (2014); Commonwealth v. Bruno-
O'Leary, 94 Mass. App. Ct. 44, 51 (2018).
Indeed, on reconsideration the judge found that plea
counsel did not provide such advice, blaming the failure on a
finding that the defendant did not share with counsel that he
was already in removal proceedings. However, it was incumbent
upon plea counsel to inquire about the defendant's status; it
was not the defendant's responsibility to determine which
factors had legal significance and to so advise counsel. See
Lavrinenko, 473 Mass. at 53.1 The judge also found that the
defendant was aware of the potential immigration consequences of
his guilty pleas, not from any advice he received from plea
1 Although plea counsel did not represent the defendant at his bail review hearing in Superior Court, which took place about a month before the guilty pleas, the findings and order denying review of bail set forth that the defendant was a "legal resident/non-citizen" and that he had a prior conviction in Ohio for aggravated burglary. This information should have put counsel on notice to inquire further.
7 counsel, but from the fact that his Ohio conviction had resulted
in removal proceedings. While the defendant's prior knowledge
might go to the assessment of prejudice, it has no bearing on
the quality of advice plea counsel provided.
The Commonwealth suggests that we could affirm the denial
of the defendant's motion on a ground not reached by the judge:
even if the defendant could demonstrate that plea counsel's
advice was constitutionally deficient, he cannot demonstrate
that he suffered prejudice because his Ohio conviction already
deprived him of the possibility of obtaining discretionary
relief from removal, regardless of the outcome of this case.
See Lavrinenko, 473 Mass. at 59 n.20 ("A defendant who can
eliminate the risk of deportation through an acquittal is more
likely to insist on going to trial than a defendant who is
deportable regardless of the outcome at trial").
While we are free to affirm on grounds different from those
relied on by the judge, those grounds must be "supported by the
record" and "the facts found by the judge." Commonwealth v. Va
Meng Joe, 425 Mass. 99, 102 (1997). The defendant's ability to
prove prejudice in this case involves a number of interrelated
factors, including whether the defendant meets the requirements
for adjustment of status as a refugee under 8 U.S.C. § 1159(b),
and whether the defendant would be considered a "violent or
dangerous individual" on the basis of the Ohio conviction,
8 Lavrinenko, 473 Mass. at 62, making him ineligible for
adjustment of status pursuant to 8 U.S.C. § 1159(c). See Lys,
481 Mass. at 7-8 (setting forth nonexhaustive list of factors
judge should consider in determining "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").
As these factors are not apparent from the record and briefing
before us, we are unable to affirm the denial of the motion for
failure to establish prejudice.
Conclusion. The defendant's motion to vacate his guilty
pleas should not have been denied without an evidentiary
hearing, and the orders denying that motion are vacated. We
remand the case for an evidentiary hearing and for findings
concerning exactly what plea counsel advised the defendant,
whether this advice was constitutionally adequate, and, if not,
whether the defendant can demonstrate prejudice.
So ordered.
By the Court (Meade, Massing & Sacks, JJ.2),
Assistant Clerk
Entered: March 11, 2024.
2 The panelists are listed in order of seniority.