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
25-P-41
COMMONWEALTH
vs.
KAYANN D. ATKINSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a Boston Municipal Court judge's denial of his
motion to withdraw an admission to sufficient facts, the
defendant appeals seeking a remand on the basis that the
decision was unsupported by findings of fact or legal rationale.
We vacate and remand.
Background. In August 2002, the twenty-one year old
defendant was charged with engaging in sexual conduct for a fee
in violation of G. L. c. 272, § 53A. The following month, in
September 2002, the defendant admitted to sufficient facts and
the case was continued without a finding for three months, after
which the charge was dismissed. More than twenty years later,
in February 2024, the defendant was detained by Immigration Customs Enforcement and placed into deportation proceedings due
to two convictions involving moral turpitude, one of which was
the dismissed charge of engaging in sexual conduct for a fee.
In March 2024, the defendant moved to withdraw his
admission. The motion was supported by affidavits of the
defendant and of his postconviction counsel. According to the
defendant's affidavit, he was a lawful permanent resident at the
time of his plea, but his plea counsel (since deceased) did not
inquire into his immigration status and therefore did not inform
him of the immigration consequences of his plea. And although
the judge gave him his alien warnings pursuant to G. L. c. 278,
§ 29D, the warnings did not advise the defendant that an
admission to sufficient facts would be considered a conviction
for purposes of immigration and therefore subject him to
deportation.
The defendant averred that he was born in Jamaica and
admitted to the United States at the age of eleven as a lawful
permanent resident to join his mother and other relatives who
had earlier immigrated. He stated that he no longer had any
ties to Jamaica and would face violence and persecution if
deported there. Had he known that deportation was a potential
consequence of his admission, the defendant asserted, he would
have gone to trial or explored another resolution of the case.
2 After a nonevidentiary hearing,1 a judge denied the motion with a
margin endorsement: "After hearing and review, the motion is
denied."
Discussion. On appeal, the defendant argues that his
motion should be remanded to the motion judge because the one
sentence ruling failed to provide a factual or legal basis for
its denial.
A motion to withdraw an admission to sufficient facts is
properly brought under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass.
497, 504 (1992). Under rule 30 (b), the judge hearing the
motion "shall make such findings of fact as are necessary to
resolve the defendant's allegations of error of law." Mass.
R. Crim. P. 30 (b). A judge's failure to make findings is not
fatal, however, if the ultimate conclusion is evident from the
record or where we are satisfied on the whole record that
manifest injustice will not result. See Commonwealth v. Melo,
95 Mass. App. Ct. 257, 263 (2019). We review for a significant
error of law or other abuse of discretion. See Commonwealth v.
Scott, 467 Mass. 336, 344 (2014).
1 The defendant was in federal custody out of State at the time of the hearing. Postconviction counsel had made attempts to secure the defendant's presence but was informed that it was "impossible."
3 Here, the defendant moved to withdraw his admission on two
separate grounds.
1. Unintelligent plea. The first ground was that his plea
was not intelligent because the defendant was misled by the
judge's alien warnings, which spoke to immigration consequences
of a conviction but not a continuance without a finding. A plea
is intelligent if it is tendered with knowledge of the elements
of the charges and the procedural protections waived by entry of
the plea. See Scott, 467 Mass. at 345. There is no claim on
appeal that the defendant did not know the elements of the crime
or the procedural protections he was waiving.
Rather, the defendant's claim is that the judge's
statutorily correct alien warnings misled him into believing
that immigration consequences only followed a conviction and not
a continuance without a finding. Generally, the absence of
advice as to collateral consequences of a plea does not render a
plea unintelligent. See Commonwealth v. Taron T., 104 Mass.
App. Ct. 219, 231-232 (2024). The defendant contends that
Padilla v. Kentucky, 559 U.S. 356, 366 (2010), held that
immigration consequences are not collateral. To the extent that
the Padilla collateral consequences analysis, based on the Sixth
Amendment right to counsel, can be imported to the due process
context, it is "indisputable that Padilla did not alter the
4 general rule that lack of knowledge about the consequences of a
guilty plea renders such a plea invalid as unknowing or
involuntary only when those consequences are direct." Taron T.,
104 Mass. App. Ct. at 232. Here, however, we do not have any
findings as to whether the immigration consequences flowed
directly from the plea. Without findings of fact or a rationale
supporting the ruling, we are hindered in our ability to
properly review the defendant's claims on appeal. See Scott,
467 Mass. at 358.
2. Ineffective assistance. The defendant's second ground
to withdraw his plea -- ineffective assistance of counsel --
required him to establish that his attorney's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer," and that he suffered prejudice because of his
attorney's unprofessional errors. Commonwealth v. Lavrinenko,
473 Mass. 42, 51 (2015), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). As to deficient performance, the defendant
alleged that his counsel never inquired into his immigration
status and never advised him that the offense he was admitting
to constituted a crime of moral turpitude; that the plea could
be a reason to deny him citizenship, to exclude him from the
United States, or to deport him; that he could lose his status
as a lawful permanent resident; and that he would be ineligible
5 for asylum or other types of relief in the future. With respect
to prejudice, the defendant alleged that, had he known 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
25-P-41
COMMONWEALTH
vs.
KAYANN D. ATKINSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a Boston Municipal Court judge's denial of his
motion to withdraw an admission to sufficient facts, the
defendant appeals seeking a remand on the basis that the
decision was unsupported by findings of fact or legal rationale.
We vacate and remand.
Background. In August 2002, the twenty-one year old
defendant was charged with engaging in sexual conduct for a fee
in violation of G. L. c. 272, § 53A. The following month, in
September 2002, the defendant admitted to sufficient facts and
the case was continued without a finding for three months, after
which the charge was dismissed. More than twenty years later,
in February 2024, the defendant was detained by Immigration Customs Enforcement and placed into deportation proceedings due
to two convictions involving moral turpitude, one of which was
the dismissed charge of engaging in sexual conduct for a fee.
In March 2024, the defendant moved to withdraw his
admission. The motion was supported by affidavits of the
defendant and of his postconviction counsel. According to the
defendant's affidavit, he was a lawful permanent resident at the
time of his plea, but his plea counsel (since deceased) did not
inquire into his immigration status and therefore did not inform
him of the immigration consequences of his plea. And although
the judge gave him his alien warnings pursuant to G. L. c. 278,
§ 29D, the warnings did not advise the defendant that an
admission to sufficient facts would be considered a conviction
for purposes of immigration and therefore subject him to
deportation.
The defendant averred that he was born in Jamaica and
admitted to the United States at the age of eleven as a lawful
permanent resident to join his mother and other relatives who
had earlier immigrated. He stated that he no longer had any
ties to Jamaica and would face violence and persecution if
deported there. Had he known that deportation was a potential
consequence of his admission, the defendant asserted, he would
have gone to trial or explored another resolution of the case.
2 After a nonevidentiary hearing,1 a judge denied the motion with a
margin endorsement: "After hearing and review, the motion is
denied."
Discussion. On appeal, the defendant argues that his
motion should be remanded to the motion judge because the one
sentence ruling failed to provide a factual or legal basis for
its denial.
A motion to withdraw an admission to sufficient facts is
properly brought under Mass. R. Crim. P. 30 (b), as appearing in
435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass.
497, 504 (1992). Under rule 30 (b), the judge hearing the
motion "shall make such findings of fact as are necessary to
resolve the defendant's allegations of error of law." Mass.
R. Crim. P. 30 (b). A judge's failure to make findings is not
fatal, however, if the ultimate conclusion is evident from the
record or where we are satisfied on the whole record that
manifest injustice will not result. See Commonwealth v. Melo,
95 Mass. App. Ct. 257, 263 (2019). We review for a significant
error of law or other abuse of discretion. See Commonwealth v.
Scott, 467 Mass. 336, 344 (2014).
1 The defendant was in federal custody out of State at the time of the hearing. Postconviction counsel had made attempts to secure the defendant's presence but was informed that it was "impossible."
3 Here, the defendant moved to withdraw his admission on two
separate grounds.
1. Unintelligent plea. The first ground was that his plea
was not intelligent because the defendant was misled by the
judge's alien warnings, which spoke to immigration consequences
of a conviction but not a continuance without a finding. A plea
is intelligent if it is tendered with knowledge of the elements
of the charges and the procedural protections waived by entry of
the plea. See Scott, 467 Mass. at 345. There is no claim on
appeal that the defendant did not know the elements of the crime
or the procedural protections he was waiving.
Rather, the defendant's claim is that the judge's
statutorily correct alien warnings misled him into believing
that immigration consequences only followed a conviction and not
a continuance without a finding. Generally, the absence of
advice as to collateral consequences of a plea does not render a
plea unintelligent. See Commonwealth v. Taron T., 104 Mass.
App. Ct. 219, 231-232 (2024). The defendant contends that
Padilla v. Kentucky, 559 U.S. 356, 366 (2010), held that
immigration consequences are not collateral. To the extent that
the Padilla collateral consequences analysis, based on the Sixth
Amendment right to counsel, can be imported to the due process
context, it is "indisputable that Padilla did not alter the
4 general rule that lack of knowledge about the consequences of a
guilty plea renders such a plea invalid as unknowing or
involuntary only when those consequences are direct." Taron T.,
104 Mass. App. Ct. at 232. Here, however, we do not have any
findings as to whether the immigration consequences flowed
directly from the plea. Without findings of fact or a rationale
supporting the ruling, we are hindered in our ability to
properly review the defendant's claims on appeal. See Scott,
467 Mass. at 358.
2. Ineffective assistance. The defendant's second ground
to withdraw his plea -- ineffective assistance of counsel --
required him to establish that his attorney's performance fell
"measurably below that which might be expected from an ordinary
fallible lawyer," and that he suffered prejudice because of his
attorney's unprofessional errors. Commonwealth v. Lavrinenko,
473 Mass. 42, 51 (2015), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). As to deficient performance, the defendant
alleged that his counsel never inquired into his immigration
status and never advised him that the offense he was admitting
to constituted a crime of moral turpitude; that the plea could
be a reason to deny him citizenship, to exclude him from the
United States, or to deport him; that he could lose his status
as a lawful permanent resident; and that he would be ineligible
5 for asylum or other types of relief in the future. With respect
to prejudice, the defendant alleged that, had he known that
there were immigration consequences to his plea, he would have
explored alternatives or gone to trial, but he would not have
entered into the plea due to the importance to him of remaining
in the United States.
Facially, the defendant's affidavit made out a claim for
ineffective assistance of counsel. The failure to make
reasonable inquiry into a defendant's immigration status may be
sufficient to constitute deficient performance. See Lavrinenko,
473 Mass. at 51-52, citing Commonwealth v. Clarke, 460 Mass. 30,
45-46 (2011). Likewise, prejudice may be established by a
showing that, in the totality of the circumstances, there is a
reasonable probability that, but for counsel's errors, the
defendant would have rejected the plea. See Lavrinenko, supra
at 55. Special circumstances showing the defendant placed
particular importance on remaining within the United States
support the conclusion that the defendant would have rejected
the plea. Id.
The defendant's ineffective assistance of counsel claim,
however, is largely based on his own affidavit. Although a
judge may reject even an uncontradicted affidavit, see
Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016), it must
6 be based on reasons pertinent to credibility. See Commonwealth
v. Torres, 469 Mass. 398, 403 (2014) (judge not required to
credit affidavit supporting motion for new trial, and may
evaluate "in light of factors pertinent to credibility,
including bias, self-interest, and delay"). Again, the absence
of findings and rulings hinders our ability to properly review
the defendant's claims on appeal. See Scott, 467 Mass. at 358
(reminding judges of importance of findings and rulings on
motions for new trial for purpose of appellate review).
We therefore vacate the order denying the defendant's
motion to withdraw his admission to sufficient facts and remand
the case for further proceedings consistent with this memorandum
and order.
So ordered.
By the Court (Rubin, J., Shin & Singh, JJ.2),
Clerk
Entered: April 15, 2026.
2 The panelists are listed in order of seniority.