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-990
COMMONWEALTH
vs.
OSCAR AQUINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In October 2018, the defendant, Oscar Aquino, pleaded
guilty in the District Court to assault and battery on a
household or family member and to threatening to commit a crime.
The following year, he submitted a motion to withdraw his guilty
plea on the basis that plea counsel had not advised him of the
immigration consequences of his guilty plea. See Padilla v.
Kentucky, 559 U.S. 356 (2010). The same judge who had accepted
his plea denied that motion, and the defendant now appeals. We
affirm.
Background. During the plea colloquy, the prosecutor
recited the following facts, all of which the defendant admitted
to be true. On February 26, 2018, the defendant and the victim
got into an argument over the defendant's use of the victim's
car. The defendant became violent, and according to the victim, slapped her multiple times in the face, pushed her to the floor,
and threatened to kill her. The victim reported the incident to
the police, to whom she also disclosed that the defendant had "a
habit of physically abusing her whenever he gets mad" for the
past year and a half. The officers took a photograph of the
victim's face, which showed an abrasion running down the right
side of her face.
The defendant was arrested the next day and charged with
assault and battery on a household or family member and
threatening to commit a crime. In March 2018, the defendant was
charged with a violation of a G. L. c. 209A order after he
contacted the victim. He was held without bail for 143 days
after a judge determined he was a danger to the community under
G. L. c. 276, § 58A.
As noted, the defendant pleaded guilty to the assault and
battery and to threatening to commit a crime.1 During the plea
colloquy, the judge asked him if he had been forced or pressured
to plead guilty, to which he responded that he had not. The
judge also advised the defendant that it was "practically
inevitable" that he would suffer immigration consequences if
1 In consideration for the guilty plea, the 209A violation charge was dismissed by the Commonwealth.
2 either of the offenses to which he was pleading guilty mandated
deportation.2 The defendant responded that he understood.
In his 2019 motion to withdraw his plea, the defendant
argued that plea counsel did not advise him that crimes of
domestic violence are deportable offenses. See 8 U.S.C.
§ 1227(a)(2)(E)(i); 18 U.S.C. § 16. He averred that if he had
known the immigration consequences, he would have gone to trial
instead. Despite having admitted to all of the facts included
in the Commonwealth's proffer at the plea hearing, the defendant
submitted an entirely different version in an affidavit
submitted in support of his motion. In response to the
defendant's motion, the Commonwealth submitted additional
materials to the District Court, including evidence that the
victim played for the officers voicemails from the defendant in
which he threatened to have her killed.3
On April 29, 2019, the judge held an evidentiary hearing on
the defendant's motion. There, the defendant denied ever having
struck the victim and claimed that she had instigated the
argument. He also offered various reasons why he thought she
might lie about this. According to him, he admitted that he had
2 The judge's noncitizen warning comported with the requirements of G. L. c. 278, § 29D, and Mass. R. Crim. P. 12 (c) (3) (A) (iii), as appearing in 486 Mass. 1501 (2020).
3 The victim later refused to give the recordings to the police.
3 struck and threatened the victim only because plea counsel had
pressured him to do so and then advised him to lie about this to
the judge.4
The defendant testified that plea counsel did not fully
inform him of the immigration consequences of pleading guilty,
and that, had he been informed, he never would have pleaded
guilty. He recounted his substantial connections to the United
States: he had full-time employment with a substantial annual
income, owned a multifamily home that provided rental income,
and had family members who had also lawfully immigrated and
lived in the same city.
Plea counsel also testified. In recounting his plea
discussions with the defendant, he stated that the defendant's
primary concern was getting out of the house of correction.
Plea counsel stated that he did not "recall [immigration
consequences] being a big issue that day for [the defendant],"
and that the defendant had told him he had consulted an
immigration attorney. He stated that although he was prepared
to go to trial, the "problematic" photograph of the abrasion on
4 The defendant testified that when plea counsel discussed the plea deal with him at the house of correction where he was held, the attorney had another inmate translate for him. On January 26, 2021, plea counsel testified that he relied on an inmate to translate only one sentence and used a court interpreter for the rest of the plea discussion with the defendant.
4 the victim's face that police took on the day of the incident
concerned him.
The judge credited plea counsel's testimony and discredited
the defendant's. She nevertheless found that plea counsel's
performance had been ineffective because -– as the Commonwealth
conceded -- "[a]dvising a client to consult with an immigration
attorney when deportation is presumptively mandatory is
insufficient."5 The judge further ruled, however, that the
defendant had not been prejudiced by plea counsel's deficient
advice. She specifically found that the Commonwealth's case was
strong and that the defendant lacked a substantial defense. She
further found that the defendant had not demonstrated the
possibility of negotiating a better plea deal, or the existence
of special circumstances sufficient to induce him to go to
trial.
Discussion. To prevail on a Padilla claim, a defendant
must show that plea counsel's performance was both defective and
prejudicial. Padilla, 559 U.S. at 366, 369, 374, citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, a defendant must show that, but for
Free access — add to your briefcase to read the full text and ask questions with AI
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-990
COMMONWEALTH
vs.
OSCAR AQUINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In October 2018, the defendant, Oscar Aquino, pleaded
guilty in the District Court to assault and battery on a
household or family member and to threatening to commit a crime.
The following year, he submitted a motion to withdraw his guilty
plea on the basis that plea counsel had not advised him of the
immigration consequences of his guilty plea. See Padilla v.
Kentucky, 559 U.S. 356 (2010). The same judge who had accepted
his plea denied that motion, and the defendant now appeals. We
affirm.
Background. During the plea colloquy, the prosecutor
recited the following facts, all of which the defendant admitted
to be true. On February 26, 2018, the defendant and the victim
got into an argument over the defendant's use of the victim's
car. The defendant became violent, and according to the victim, slapped her multiple times in the face, pushed her to the floor,
and threatened to kill her. The victim reported the incident to
the police, to whom she also disclosed that the defendant had "a
habit of physically abusing her whenever he gets mad" for the
past year and a half. The officers took a photograph of the
victim's face, which showed an abrasion running down the right
side of her face.
The defendant was arrested the next day and charged with
assault and battery on a household or family member and
threatening to commit a crime. In March 2018, the defendant was
charged with a violation of a G. L. c. 209A order after he
contacted the victim. He was held without bail for 143 days
after a judge determined he was a danger to the community under
G. L. c. 276, § 58A.
As noted, the defendant pleaded guilty to the assault and
battery and to threatening to commit a crime.1 During the plea
colloquy, the judge asked him if he had been forced or pressured
to plead guilty, to which he responded that he had not. The
judge also advised the defendant that it was "practically
inevitable" that he would suffer immigration consequences if
1 In consideration for the guilty plea, the 209A violation charge was dismissed by the Commonwealth.
2 either of the offenses to which he was pleading guilty mandated
deportation.2 The defendant responded that he understood.
In his 2019 motion to withdraw his plea, the defendant
argued that plea counsel did not advise him that crimes of
domestic violence are deportable offenses. See 8 U.S.C.
§ 1227(a)(2)(E)(i); 18 U.S.C. § 16. He averred that if he had
known the immigration consequences, he would have gone to trial
instead. Despite having admitted to all of the facts included
in the Commonwealth's proffer at the plea hearing, the defendant
submitted an entirely different version in an affidavit
submitted in support of his motion. In response to the
defendant's motion, the Commonwealth submitted additional
materials to the District Court, including evidence that the
victim played for the officers voicemails from the defendant in
which he threatened to have her killed.3
On April 29, 2019, the judge held an evidentiary hearing on
the defendant's motion. There, the defendant denied ever having
struck the victim and claimed that she had instigated the
argument. He also offered various reasons why he thought she
might lie about this. According to him, he admitted that he had
2 The judge's noncitizen warning comported with the requirements of G. L. c. 278, § 29D, and Mass. R. Crim. P. 12 (c) (3) (A) (iii), as appearing in 486 Mass. 1501 (2020).
3 The victim later refused to give the recordings to the police.
3 struck and threatened the victim only because plea counsel had
pressured him to do so and then advised him to lie about this to
the judge.4
The defendant testified that plea counsel did not fully
inform him of the immigration consequences of pleading guilty,
and that, had he been informed, he never would have pleaded
guilty. He recounted his substantial connections to the United
States: he had full-time employment with a substantial annual
income, owned a multifamily home that provided rental income,
and had family members who had also lawfully immigrated and
lived in the same city.
Plea counsel also testified. In recounting his plea
discussions with the defendant, he stated that the defendant's
primary concern was getting out of the house of correction.
Plea counsel stated that he did not "recall [immigration
consequences] being a big issue that day for [the defendant],"
and that the defendant had told him he had consulted an
immigration attorney. He stated that although he was prepared
to go to trial, the "problematic" photograph of the abrasion on
4 The defendant testified that when plea counsel discussed the plea deal with him at the house of correction where he was held, the attorney had another inmate translate for him. On January 26, 2021, plea counsel testified that he relied on an inmate to translate only one sentence and used a court interpreter for the rest of the plea discussion with the defendant.
4 the victim's face that police took on the day of the incident
concerned him.
The judge credited plea counsel's testimony and discredited
the defendant's. She nevertheless found that plea counsel's
performance had been ineffective because -– as the Commonwealth
conceded -- "[a]dvising a client to consult with an immigration
attorney when deportation is presumptively mandatory is
insufficient."5 The judge further ruled, however, that the
defendant had not been prejudiced by plea counsel's deficient
advice. She specifically found that the Commonwealth's case was
strong and that the defendant lacked a substantial defense. She
further found that the defendant had not demonstrated the
possibility of negotiating a better plea deal, or the existence
of special circumstances sufficient to induce him to go to
trial.
Discussion. To prevail on a Padilla claim, a defendant
must show that plea counsel's performance was both defective and
prejudicial. Padilla, 559 U.S. at 366, 369, 374, citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish prejudice, a defendant must show that, but for
counsel's defective advice, the defendant would have not pleaded
guilty and that such a decision would have been "rational under
5 The Commonwealth also conceded the ineffective performance of counsel at the hearing.
5 the circumstances." Commonwealth v. Clarke, 460 Mass. 30, 47
(2011), quoting Padilla, 559 U.S. at 1485. A defendant may do
this by showing that:
"(1) he had 'an available, substantial ground of defence' that would have been pursued if he 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."
Clarke, supra at 47-48, quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), and Hill v. Lockhart, 474 U.S. 52, 60
(1985). We address each of the three ways of showing prejudice
in order.
1. Substantial defense. In finding the case against the
defendant "strong," the judge noted that the victim was
available and willing to testify at trial, and that the police
had a photograph to corroborate her testimony by showing a
contemporaneous injury to her face (a photograph that defense
counsel himself characterized as "problematic").6 There was also
6 The defendant does not include the photograph to which plea counsel had referred in his record appendix. In an assented-to post-oral argument motion, the defendant has asked us to accept the photograph as a late-filed exhibit that the judge referenced in her decision. However, the photograph was never offered as an exhibit, either during the plea colloquy or at the evidentiary hearing on the defendant's motion to withdraw his plea. In addition, it is not at all clear on the record
6 evidence before the judge that the police had listened to
voicemails that recorded the defendant threatening to have the
victim killed.7
The defendant appears to assume that he would have had a
substantial defense simply because he claims he would have
testified at trial and told a different account of the incident.
However, this ignores the fact that the judge (who also had
accepted the defendant's plea) found the defendant not to be a
credible witness.8 We discern no clear error in the judge's
before us that the judge ever herself viewed the photograph, though it is possible that the photograph was included as part of the police reports the Commonwealth submitted as attachments in its opposition to the defendant's motion to withdraw his plea (those police reports are not included in either the defendant's record appendix or the Commonwealth's supplemental appendix). If the photograph itself was not before the judge, it cannot properly be part of the appellate record. In the end, we need not resolve this question because we conclude that the actual photograph provides no appreciable assistance to the defendant's arguments on appeal. We allow the defendant's motion to the extent necessary to allow us to reach that conclusion and otherwise deny it as moot.
7 This evidence came from police reports which were submitted by the Commonwealth to the District Court. The judge had the benefit of seeing the police reports, which the Commonwealth had submitted with its opposition to the motion to withdraw the plea, but the defendant has not included them in his record appendix.
8 The parties have not briefed the extent to which the Commonwealth could have impeached the defendant at any retrial with the factual admissions he made at the plea hearing. We do not rely on that, while noting the open issue.
7 finding that the defendant lacked a substantial defense at
2. Alternative plea agreement. In his affidavit
accompanying his motion, the defendant made a bare assertion
that he might have been able to negotiate a better plea
agreement. However, he never supported that assertion with
evidence, such as the plea negotiation policies or practices of
the District Attorney. The defendant does not press the issue
on appeal and in fact acknowledges that "it is likely he would
not have been able to negotiate a better plea deal . . . ." In
any event, as the Commonwealth notes, pleading guilty to any
charges involving domestic violence would have resulted in the
same immigration consequences. There was no clear error in the
judge's finding that the defendant would not have been able to
negotiate a better plea agreement.
3. Special circumstances. The defendant further argues
that the judge erred when she found that the defendant did not
have special circumstances at the time of the plea agreement
that would have caused him to opt for a trial. As the defendant
accurately points out, he had strong reasons for wanting to
remain in the United States at the time he pleaded guilty: a
well-paying job, a home that generated rental income, and family
members living nearby. In addition, as a legal permanent
8 resident, the defendant had a viable path to United States
citizenship.
Nevertheless, the mere presence of special circumstances is
not enough to establish prejudice. A defendant must also show,
as a matter of fact, that those special circumstances would have
caused him to go to trial. See Commonwealth v. Lavrinenko, 473
Mass. 42, 59 (2015) (the existence of special circumstances does
"not require the conclusion that there is a reasonable
probability that the special circumstances would have caused the
defendant to choose to go to trial"). The judge's decision
reveals that she both understood the applicable law and
acknowledged all of the facts that the defendant marshaled in
his favor.9 In the end, however, she found -- as a matter of
fact -- that despite the defendant's interest in remaining in
the United States, he still would have pleaded guilty. Although
the defendant testified that he would not have pleaded guilty
had he understood the immigration consequences, it was up to the
judge whether to credit that testimony. See Commonwealth v.
Scott, 467 Mass. 336, 344 (2014) (citation omitted) (hearing
judge is "final arbiter on matters of credibility"). The
9 The defendant highlights the judge's reference to the absence of any evidence that he would suffer harm if he returned to his native Dominican Republic. This was an appropriate factor for the judge to consider. See Lavrinenko, 473 Mass. at 58. Nothing suggests that the judge believed that the defendant could not show special circumstances absent such proof.
9 judge's finding also enjoys support in plea counsel's testimony
that he "[did not] recall [immigration consequences] being a big
issue" for the defendant on the day the defendant entered the
plea agreement, and that the defendant's "primary objective at
the time" was to get out of the house of correction. The
judge's finding that the defendant would not have opted for
trial had plea counsel adequately informed him of the
immigration consequences was not clearly erroneous.
Order denying motion to withdraw guilty plea affirmed.
By the Court (Milkey, Massing & Neyman, JJ.10),
Assistant Clerk
Entered: May 13, 2024.
10 The panelists are listed in order of seniority.