Commonwealth v. Julius Juuko.

• Court: Massachusetts Appeals Court
• Decided: October 4, 2023
• Docket: 22-P-0986
• Status: Unpublished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

22-P-986

COMMONWEALTH

vs.

JULIUS JUUKO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Claiming that he received ineffective assistance of counsel

in the prior proceedings, the defendant appeals from an order of

the District Court denying his third motion for a new trial, in

which he sought to withdraw his admission to sufficient facts of

a violation of G. L. c. 90, § 24B. 1 We discern no abuse of

discretion or error of law, and affirm.

To establish a basis for relief on a claim of ineffective

assistance of counsel, the defendant must show that (1) his plea

counsel's conduct fell below the standard of an ordinary,

fallible lawyer, and (2) that shortcoming prejudiced him in some

way. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

1 "A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b)." Commonwealth v. Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). See also Commonwealth v. Lavrinenko, 473 Mass. 42, 51-52 (2015)

(ineffective assistance of counsel on immigration consequences

of plea). In the present case, the defendant asserts that his

plea counsel gave him inadequate advice concerning the

immigration consequences of his admission to sufficient facts.

Passing the question whether counsel's advice was inadequate, we

agree with the motion judge that the defendant has not

established that he was prejudiced by any shortcoming of

counsel.

"In the context of a guilty plea,[2] 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.'" 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 rational under the

circumstances" (quotation omitted). Commonwealth v. DeJesus,

2 An admission to sufficient facts is considered the equivalent of a guilty plea for these purposes. See Commonwealth v. Villalobos, 437 Mass. 797, 800 (2002).

2 468 Mass. 174, 183 (2014), 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 and footnote omitted). Lavrinenko,

supra at 55-56, quoting Clarke, supra at 47-48.

In the present case, the evidence against the defendant was

overwhelming; indeed, the defendant admitted to police that he

paid for and used a fraudulent identification card in order to

obtain a job at a pharmacy. The defendant likewise made no

showing that a different plea bargain could have been

negotiated. In fact, at the plea hearing, the Commonwealth

pressed for a more severe sentence than the defendant ultimately

received. We are, therefore, left with the question of "special

circumstances." Though the defendant has developed strong ties

to the United States, he also has significant continuing ties to

3 his home country; indeed, he traveled back to Uganda for

business after entry of his admission to sufficient facts,

despite advice from his immigration counsel that he not do so.

Moreover, in light of the strength of the Commonwealth's case,

rejecting the plea would merely have deferred the consequences

he now faces. Absent any realistic prospect of acquittal, it

would not have been rational for him to reject the plea and

proceed to trial. The defendant accordingly has not satisfied

the prejudice prong of the Saferian standard, and the motion

judge did not err in denying his motion for a new trial.

Order denying motion for a new trial affirmed.

By the Court (Green, C.J., Desmond & Hodgens, JJ. 3),

Clerk

Entered: October 4, 2023.

3 The panelists are listed in order of seniority.