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
23-P-1348
COMMONWEALTH
vs.
JONATHAN CASTRO.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2014, the defendant pleaded guilty to one count of
second-degree murder, one count of armed assault with intent to
murder, one count of possession of a firearm without a license,
and one count of carrying a loaded firearm without a license.
The plea judge sentenced the defendant to serve the term of his
natural life, with parole eligibility in fifteen years for the
murder, and to various shorter, concurrent sentences on the
other charges. Nearly a decade later, the defendant submitted a
motion to vacate his guilty plea because he feared the
consequences of deportation should he be released on parole. A
1 Also known as Manuel Jonathan Castro Menjivar. judge of the Suffolk Superior Court denied the motion, and the
defendant appeals from the denial of that motion. We affirm.
Background. We summarize the facts admitted to by the
defendant at his September 3, 2014 plea colloquy. In March
2013, six members of the 18th Street Gang in Chelsea sought to
attack two men they believed were part of a rival gang. The
defendant was one of these members and brought a loaded revolver
to the attack. Once the attack began, the defendant fired the
revolver at two men who were standing on the porch of a
residential building. Two of the bullets fatally struck one of
the men. The police arrested the defendant later that same
evening. During police questioning following the arrest, the
defendant admitted to shooting the victim and that the shooting
was gang motivated.
At the plea hearing, the defendant affirmed that he was
aware of the possible impact that a conviction would have on his
immigration status. Specifically, the judge advised the
defendant that "[i]f you are not a citizen of the United States,
I am hereby advising you that pleading guilty to this charge
will result in your deportation, your exclusion from admission
to the United States, your denial of naturalization pursuant to
the laws of the United States."
The defendant also confirmed that he had discussed the
immigration consequences of his plea with his lawyer. In
2 addition, the defendant and his attorney signed a "Waiver of
Defendant's Rights" form before the plea hearing. The form
contained an acknowledgement that the defendant's plea was not
the result of any "assurances, or promises." The defendant
confirmed to the judge that he had signed the form voluntarily.
The defendant also confirmed to the judge that he had received
no promises other than the plea agreement discussed on the
record.2
In 2023, the defendant submitted a motion to vacate his
guilty plea contending that his counsel was ineffective for
failing to inform the plea judge that "there was an active
protective order for [the defendant's] safety which should have
been applied to [the] plea colloquy." In support of his motion,
the defendant averred that he pleaded guilty "under the
assumption that the Suffolk [County] District Attorney['s]
Office agreed to protect me with a protective order for me to
stay in [the] United Stated for my safety." The defendant
further claimed his life would be in danger from "gang members"
2 As terms of the plea agreement, the defendant pleaded guilty to the lesser included charge of murder in the second degree, armed assault with intent to murder, unlawful possession of a firearm without a license, and carrying a loaded firearm without a license. Two counts -- assault by means of a dangerous weapon and unlawful possession of ammunition -- were dismissed at the request of the Commonwealth.
3 involved in his case should he be deported because he had
corroborated with the police.
The motion judge, who had not conducted the defendant's
plea, denied the motion without a hearing "substantially for the
reasons set forth in the Commonwealth's opposition."3
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.
Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v.
Sylvester, 476 Mass. 1, 5 (2016). "Although the disposition of
such a motion is within the discretion of the judge, a rigorous
standard must be applied and a judge may only allow such a
motion 'if it appears that justice may not have been done.'"
Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), quoting
Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "We 'review
the denial of a motion to withdraw a guilty plea to determine
whether there has been a significant error of law or other abuse
of discretion'" (citation omitted). Commonwealth v. Barros, 494
Mass. 100, 111 (2024).
3 The Commonwealth argued that the defendant had been properly warned of adverse immigration consequences before making his guilty plea, and therefore his plea was knowing, intelligent, and voluntary. Further, the Commonwealth pointed out there was no evidence, besides the defendant's own affidavit, that a protective order ever existed.
4 Where, as here, the defendant's motion for new trial is
premised on a claim of ineffective assistance of counsel, the
defendant bears the burden of proving counsel's ineffectiveness.
Commonwealth v. Dowds, 483 Mass. 498, 504 (2019). Thus, the
defendant must establish, first, that his attorney's performance
fell "measurably below that which might be expected from an
ordinary fallible lawyer," and, second, that the attorney's
performance "likely deprived the defendant of an otherwise
available, substantial ground of defense." Commonwealth v.
Marinho, 464 Mass. 115, 123 (2013), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974).
The defendant has not established that plea counsel's
performance was deficient. First, the defendant offers no
evidence to support his averment as to the existence of a
protective order that would have allowed him to stay in the
United States.4 The motion judge was not required to credit the
defendant's affidavit. See Marinho, 464 Mass. at 123 ("a judge
is entitled to discredit affidavits he or she does not find
credible"). During his plea colloquy, the defendant explicitly
acknowledged that the Commonwealth had not made any promises to
him in addition to the terms of the plea as discussed on the
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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
23-P-1348
COMMONWEALTH
vs.
JONATHAN CASTRO.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2014, the defendant pleaded guilty to one count of
second-degree murder, one count of armed assault with intent to
murder, one count of possession of a firearm without a license,
and one count of carrying a loaded firearm without a license.
The plea judge sentenced the defendant to serve the term of his
natural life, with parole eligibility in fifteen years for the
murder, and to various shorter, concurrent sentences on the
other charges. Nearly a decade later, the defendant submitted a
motion to vacate his guilty plea because he feared the
consequences of deportation should he be released on parole. A
1 Also known as Manuel Jonathan Castro Menjivar. judge of the Suffolk Superior Court denied the motion, and the
defendant appeals from the denial of that motion. We affirm.
Background. We summarize the facts admitted to by the
defendant at his September 3, 2014 plea colloquy. In March
2013, six members of the 18th Street Gang in Chelsea sought to
attack two men they believed were part of a rival gang. The
defendant was one of these members and brought a loaded revolver
to the attack. Once the attack began, the defendant fired the
revolver at two men who were standing on the porch of a
residential building. Two of the bullets fatally struck one of
the men. The police arrested the defendant later that same
evening. During police questioning following the arrest, the
defendant admitted to shooting the victim and that the shooting
was gang motivated.
At the plea hearing, the defendant affirmed that he was
aware of the possible impact that a conviction would have on his
immigration status. Specifically, the judge advised the
defendant that "[i]f you are not a citizen of the United States,
I am hereby advising you that pleading guilty to this charge
will result in your deportation, your exclusion from admission
to the United States, your denial of naturalization pursuant to
the laws of the United States."
The defendant also confirmed that he had discussed the
immigration consequences of his plea with his lawyer. In
2 addition, the defendant and his attorney signed a "Waiver of
Defendant's Rights" form before the plea hearing. The form
contained an acknowledgement that the defendant's plea was not
the result of any "assurances, or promises." The defendant
confirmed to the judge that he had signed the form voluntarily.
The defendant also confirmed to the judge that he had received
no promises other than the plea agreement discussed on the
record.2
In 2023, the defendant submitted a motion to vacate his
guilty plea contending that his counsel was ineffective for
failing to inform the plea judge that "there was an active
protective order for [the defendant's] safety which should have
been applied to [the] plea colloquy." In support of his motion,
the defendant averred that he pleaded guilty "under the
assumption that the Suffolk [County] District Attorney['s]
Office agreed to protect me with a protective order for me to
stay in [the] United Stated for my safety." The defendant
further claimed his life would be in danger from "gang members"
2 As terms of the plea agreement, the defendant pleaded guilty to the lesser included charge of murder in the second degree, armed assault with intent to murder, unlawful possession of a firearm without a license, and carrying a loaded firearm without a license. Two counts -- assault by means of a dangerous weapon and unlawful possession of ammunition -- were dismissed at the request of the Commonwealth.
3 involved in his case should he be deported because he had
corroborated with the police.
The motion judge, who had not conducted the defendant's
plea, denied the motion without a hearing "substantially for the
reasons set forth in the Commonwealth's opposition."3
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.
Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v.
Sylvester, 476 Mass. 1, 5 (2016). "Although the disposition of
such a motion is within the discretion of the judge, a rigorous
standard must be applied and a judge may only allow such a
motion 'if it appears that justice may not have been done.'"
Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), quoting
Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "We 'review
the denial of a motion to withdraw a guilty plea to determine
whether there has been a significant error of law or other abuse
of discretion'" (citation omitted). Commonwealth v. Barros, 494
Mass. 100, 111 (2024).
3 The Commonwealth argued that the defendant had been properly warned of adverse immigration consequences before making his guilty plea, and therefore his plea was knowing, intelligent, and voluntary. Further, the Commonwealth pointed out there was no evidence, besides the defendant's own affidavit, that a protective order ever existed.
4 Where, as here, the defendant's motion for new trial is
premised on a claim of ineffective assistance of counsel, the
defendant bears the burden of proving counsel's ineffectiveness.
Commonwealth v. Dowds, 483 Mass. 498, 504 (2019). Thus, the
defendant must establish, first, that his attorney's performance
fell "measurably below that which might be expected from an
ordinary fallible lawyer," and, second, that the attorney's
performance "likely deprived the defendant of an otherwise
available, substantial ground of defense." Commonwealth v.
Marinho, 464 Mass. 115, 123 (2013), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974).
The defendant has not established that plea counsel's
performance was deficient. First, the defendant offers no
evidence to support his averment as to the existence of a
protective order that would have allowed him to stay in the
United States.4 The motion judge was not required to credit the
defendant's affidavit. See Marinho, 464 Mass. at 123 ("a judge
is entitled to discredit affidavits he or she does not find
credible"). During his plea colloquy, the defendant explicitly
acknowledged that the Commonwealth had not made any promises to
him in addition to the terms of the plea as discussed on the
4 The only protective order that appears on the record is the one requested by the Commonwealth that restricted the dissemination of pretrial discovery by defense counsel.
5 record. The record further indicates the defendant was advised
of the adverse immigration consequences by his attorney and the
court before the defendant agreed to waive his rights and change
his plea. The defendant also confirmed that he had sufficient
time to speak with his attorney, that she explained the
consequences of the plea, and that he was satisfied that she
acted in his best interest. There is no indication from the
record on appeal that counsel's performance fell "measurably
below that which might be expected from an ordinary fallible
lawyer." Saferian, 366 Mass. at 96.
To the extent the defendant argues that his guilty plea
should be vacated because of the threat to his life if he is
deported, we recognize that the defendant will not be eligible
for parole until 2028. It thus follows that the defendant's
claim that he faces imminent death upon his deportation is
premature. See Commonwealth v. Casimir, 68 Mass. App. Ct. 257,
259 (2007) ("[Defendant] offered no evidence to the motion judge
that removal proceedings have been initiated against him or that
he has been denied naturalization . . . . Merely being
'subject' to removal or that he 'may' be denied citizenship is
insufficient"). As the motion judge pointed out, any agreements
with the government "can be raised if and when deportation
proceedings are commenced."
6 We further note that the defendant has made no showing that
when he pleaded guilty he was unaware that his life would be in
danger if he were to be deported. In his affidavit supporting
his motion for new trial, the defendant does not aver that there
was any new information that had come to light since his plea
that represented a change of circumstances that heightened his
concern for such a risk.
Finally, the defendant argues for the first time on appeal
that (1) a public notice issued by the Suffolk County District
Attorney effectively placed his life at risk, as it informed
fellow gang members that he cooperated with the police; and that
(2) plea counsel was ineffective by not fully explaining the
risk to his life upon deportation. Because the defendant raises
these claims for the first time on appeal, these claims are
7 waived for purpose of this appeal. See Mass. R. Crim. P.
30 (c) (2). See also Commonwealth v. Roberts, 472 Mass. 355,
359 (2015).
Order denying motion to withdraw guilty plea affirmed.
By the Court (Ditkoff, Englander & Smyth, JJ.5),
Clerk
Entered: May 15, 2025.
5 The panelists are listed in order of seniority.