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-876
COMMONWEALTH
vs.
JAVIER TORRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant admitted in 1999 to sufficient facts to
permit a finding of guilt with respect to a single charge of
distribution of a class A substance, G. L. c. 94C § 32 (a). The
plea judge ordered that the charge be continued without a
finding; as part of the agreed-on disposition between the
Commonwealth and the defendant, the two other charges, including
a school zone enhancement, 1 were dismissed. Over twenty years
later, in 2021, the defendant, claiming ineffective assistance
of counsel, filed a motion to withdraw his admissions to facts,
which was denied. 2 In turn, the defendant filed a motion to
1 This charge requires a mandatory two-year term of commitment on conviction. See G. L. c. 94C, § 32J. 2 The defendant has had repeated interactions with the criminal
justice system during the intervening period. In 2005, he was convicted in Suffolk and Essex Superior Courts of four charges reconsider, which was also denied. He now appeals from the
orders denying both motions. On appeal, the defendant asserts
that the motion judge erred in denying his motions because he
received ineffective assistance of counsel when his trial
counsel failed to advise him of the immigration consequences of
his admissions, in violation of his Federal and State
constitutional rights. Discerning no error, we affirm.
Discussion. "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.
Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v.
DeJesus, 468 Mass. 174, 178 (2014). We review the denial of
such a motion for a significant error of law or other abuse of
discretion. See Sylvain, supra; Commonwealth v. Gordon, 82
Mass. App. Ct. 389, 393-394 (2012). To establish that he is
entitled to a new trial, the defendant is required to show that
(1) by not advising him of the immigration consequences he would
face if convicted of distribution of a class A substance, his
plea counsel's conduct fell below the standard of an ordinary,
fallible lawyer, and (2) that shortcoming prejudiced him. See
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also
Commonwealth v. Lavrinenko, 473 Mass. 42, 51-52 (2015)
related to trafficking, distributing, and possessing controlled substances and was sentenced to State prison in both cases.
2 (ineffective assistance of counsel on immigration consequences
of plea).
With respect to the first prong of the Saferian analysis,
the motion judge briefly recited the defendant's argument and
held that "[b]ased on a review of all the evidence, . . . [the]
[a]ttorney's advice was ineffective." Neither party disputes
that finding, and we agree with the motion judge that plea
counsel's advice was ineffective. See Commonwealth v. Chleikh,
82 Mass. App. Ct. 718, 723 (2012). The motion judge then
addressed the second prong and determined that the defendant had
not satisfied his burden to show that plea counsel's substandard
conduct prejudiced him and, as stated, denied the motions. We
therefore turn directly to the question of 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" (quotations omitted).
Lavrinenko, 473 Mass. at 55, quoting Commonwealth v. Clarke, 460
Mass. 30, 47 (2011). To establish that reasonable probability,
"[a]t a minimum, . . . the defendant must aver that to be the
case." Lavrinenko, supra, quoting Clarke, supra. Having made
such an assertion, "[the defendant] must [then] convince the
court that a decision to reject the plea bargain would have been
3 rational under the circumstances" (quotation omitted). DeJesus,
468 Mass. at 183, quoting Clarke, supra.
"To prove that rejecting the plea would have been rational under the circumstances, the defendant bears the substantial burden of showing that (1) he [or she] had an available, substantial ground of defence, . . . that would have been pursued if he [or she] had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of special circumstances that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (quotations omitted).
Lavrinenko, supra at 55-56, quoting Clarke, supra at 47-48.
We conclude that the motion judge did not abuse his
discretion by finding that the defendant had not carried this
substantial burden. Although the defendant met the threshold
requirement by submitting an affidavit averring that he would
not have accepted the plea deal but for plea counsel's errors,
several factors suggest that rejection of the plea deal would
not have been rational in the circumstances. See Clarke, 460
Mass. at 47-48. Most significantly, the Commonwealth's evidence
against the defendant was overwhelming. See id. at 48. Two
undercover police detectives observed the defendant engage in a
narcotics transaction in plain view and recovered two glassine
packets filled with a white substance 3 from the purchaser
3 The detectives believed this substance was heroin.
4 immediately thereafter. Although the defendant argues that the
twenty-foot distance between himself and the detectives at the
time of the sale would have been enough to create reasonable
doubt as to his guilt, we are not persuaded. 4 Moreover, the
record suggests that the school zone violation with which the
defendant was charged was equally supported by the evidence.
If, as is the case here, the likelihood of conviction was almost
certain, rejecting a plea deal that allowed the defendant to
avoid incarceration without exposing him to a greater risk of
deportation than that inherent in his conviction of the same and
other offenses after trial would not have been rational. See
Clarke, supra at 47-48.
The defendant argues that special circumstances existed
that would have led him to reject a plea bargain had he been
properly advised by plea counsel. 5 To support this claim in the
trial court, he offered a 2021 affidavit in which he cited his
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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-876
COMMONWEALTH
vs.
JAVIER TORRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant admitted in 1999 to sufficient facts to
permit a finding of guilt with respect to a single charge of
distribution of a class A substance, G. L. c. 94C § 32 (a). The
plea judge ordered that the charge be continued without a
finding; as part of the agreed-on disposition between the
Commonwealth and the defendant, the two other charges, including
a school zone enhancement, 1 were dismissed. Over twenty years
later, in 2021, the defendant, claiming ineffective assistance
of counsel, filed a motion to withdraw his admissions to facts,
which was denied. 2 In turn, the defendant filed a motion to
1 This charge requires a mandatory two-year term of commitment on conviction. See G. L. c. 94C, § 32J. 2 The defendant has had repeated interactions with the criminal
justice system during the intervening period. In 2005, he was convicted in Suffolk and Essex Superior Courts of four charges reconsider, which was also denied. He now appeals from the
orders denying both motions. On appeal, the defendant asserts
that the motion judge erred in denying his motions because he
received ineffective assistance of counsel when his trial
counsel failed to advise him of the immigration consequences of
his admissions, in violation of his Federal and State
constitutional rights. Discerning no error, we affirm.
Discussion. "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.
Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v.
DeJesus, 468 Mass. 174, 178 (2014). We review the denial of
such a motion for a significant error of law or other abuse of
discretion. See Sylvain, supra; Commonwealth v. Gordon, 82
Mass. App. Ct. 389, 393-394 (2012). To establish that he is
entitled to a new trial, the defendant is required to show that
(1) by not advising him of the immigration consequences he would
face if convicted of distribution of a class A substance, his
plea counsel's conduct fell below the standard of an ordinary,
fallible lawyer, and (2) that shortcoming prejudiced him. See
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also
Commonwealth v. Lavrinenko, 473 Mass. 42, 51-52 (2015)
related to trafficking, distributing, and possessing controlled substances and was sentenced to State prison in both cases.
2 (ineffective assistance of counsel on immigration consequences
of plea).
With respect to the first prong of the Saferian analysis,
the motion judge briefly recited the defendant's argument and
held that "[b]ased on a review of all the evidence, . . . [the]
[a]ttorney's advice was ineffective." Neither party disputes
that finding, and we agree with the motion judge that plea
counsel's advice was ineffective. See Commonwealth v. Chleikh,
82 Mass. App. Ct. 718, 723 (2012). The motion judge then
addressed the second prong and determined that the defendant had
not satisfied his burden to show that plea counsel's substandard
conduct prejudiced him and, as stated, denied the motions. We
therefore turn directly to the question of 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" (quotations omitted).
Lavrinenko, 473 Mass. at 55, quoting Commonwealth v. Clarke, 460
Mass. 30, 47 (2011). To establish that reasonable probability,
"[a]t a minimum, . . . the defendant must aver that to be the
case." Lavrinenko, supra, quoting Clarke, supra. Having made
such an assertion, "[the defendant] must [then] convince the
court that a decision to reject the plea bargain would have been
3 rational under the circumstances" (quotation omitted). DeJesus,
468 Mass. at 183, quoting Clarke, supra.
"To prove that rejecting the plea would have been rational under the circumstances, the defendant bears the substantial burden of showing that (1) he [or she] had an available, substantial ground of defence, . . . that would have been pursued if he [or she] had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of special circumstances that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (quotations omitted).
Lavrinenko, supra at 55-56, quoting Clarke, supra at 47-48.
We conclude that the motion judge did not abuse his
discretion by finding that the defendant had not carried this
substantial burden. Although the defendant met the threshold
requirement by submitting an affidavit averring that he would
not have accepted the plea deal but for plea counsel's errors,
several factors suggest that rejection of the plea deal would
not have been rational in the circumstances. See Clarke, 460
Mass. at 47-48. Most significantly, the Commonwealth's evidence
against the defendant was overwhelming. See id. at 48. Two
undercover police detectives observed the defendant engage in a
narcotics transaction in plain view and recovered two glassine
packets filled with a white substance 3 from the purchaser
3 The detectives believed this substance was heroin.
4 immediately thereafter. Although the defendant argues that the
twenty-foot distance between himself and the detectives at the
time of the sale would have been enough to create reasonable
doubt as to his guilt, we are not persuaded. 4 Moreover, the
record suggests that the school zone violation with which the
defendant was charged was equally supported by the evidence.
If, as is the case here, the likelihood of conviction was almost
certain, rejecting a plea deal that allowed the defendant to
avoid incarceration without exposing him to a greater risk of
deportation than that inherent in his conviction of the same and
other offenses after trial would not have been rational. See
Clarke, supra at 47-48.
The defendant argues that special circumstances existed
that would have led him to reject a plea bargain had he been
properly advised by plea counsel. 5 To support this claim in the
trial court, he offered a 2021 affidavit in which he cited his
ties to the United States at the time of the plea, including his
status as a permanent resident, employment, and the presence of
his brother and sister in the country. He further referenced
4 The defendant also contends that the lack of additional evidence of drug distribution weakened the Commonwealth's case, but we are not convinced that additional evidence would have been necessary. 5 The Commonwealth's strong case against the defendant
effectively forecloses any argument pertaining to an available defense or alternative plea arrangement. See Clarke, 460 Mass. at 47-48.
5 his marriage to a United States citizen, his home ownership
here, and his adult children living in the United States but
does not claim that those factors existed at the time of his
plea in 1999. 6 Without more, we cannot conclude that proceeding
to trial in the face of a likely conviction and predictably more
severe penalty would have been rational, and we accordingly
discern no abuse of discretion in the motion judge's denial of
the defendant's motion. See Clarke, 460 Mass. at 47-48.
Orders denying motions to withdraw admissions to facts and for reconsideration affirmed.
By the Court (Green, C.J., Desmond & Hand, JJ. 7),
Clerk
Entered: October 3, 2023.
6 Moreover, we note that the defendant came to the United States from the Dominican Republic as an adult and has not claimed any type of economic or persecutorial hardship associated with his life there. See, e.g., Lavrinenko, 473 Mass. at 47-49. 7 The panelists are listed in order of seniority.