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SJC-13720
COMMONWEALTH vs. JORGE L. SANTANA.
Essex. September 8, 2025. - February 4, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
Practice, Criminal, Plea, Assistance of counsel, Affidavit, Findings by judge, Judicial discretion. Constitutional Law, Plea, Assistance of counsel. Alien. Controlled Substances.
Complaint received and sworn to in the Salem Division of the District Court Department on June 6, 2017.
A motion to withdraw a guilty plea, filed on April 21, 2022, was heard by Allen G. Swan, J.
After review by the Appeals Court, 104 Mass. App. Ct. 1117 (2024), the Supreme Judicial Court granted leave to obtain further appellate review.
Casey L. Riley (Danya Fullerton also present) for the defendant. Jennifer D. Cohen, Assistant District Attorney, for the Commonwealth. Jennifer Klein & Caitlin Perry, Committee for Public Counsel Services, Edward Crane, & Maria Durant, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. 2
WENDLANDT, J. In 2018, the defendant, Jorge Santana, a
noncitizen lawfully residing in the United States, pleaded
guilty to possession of a controlled substance with intent to
distribute, subjecting him to automatic deportation from the
United States. This case presents the question whether the
defendant has made an adequate showing to warrant an evidentiary
hearing on his motion to withdraw his plea on the basis that
plea counsel failed to inform him that his plea rendered his
deportation virtually mandatory in violation of his
constitutional right to the effective assistance of counsel.
See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (Sixth
Amendment to United States Constitution requires counsel to
advise client whether plea carries risk of deportation);
Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013), S.C., 473
Mass. 832 (2016) (same under art. 12 of Massachusetts
Declaration of Rights).
The motion judge, who was also the plea judge, denied the
motion without an evidentiary hearing primarily on the basis
that plea counsel's affidavit averring that he did not tell the
defendant that he would be automatically deported was not
credible because it was inconsistent with counsel's
representation during the plea colloquy that he had discussed
the immigration consequences of the plea with his client. 3
Contrary to the judge's determination, however, counsel's
affidavit was not inherently inconsistent with his
representations during the colloquy and any inconsistency could
not be resolved on the papers alone. Accordingly, we vacate the
denial of the motion to withdraw the defendant's guilty plea and
remand for further proceedings consistent with this opinion.1
1. Background. In June 2017, an officer of the Danvers
police department (first officer) observed the defendant, who
was in a vehicle, exchange items with a known heroin user, who
was in a different vehicle, in a supermarket parking lot.
Suspecting that the exchange involved illegal drugs, the first
officer followed the defendant's vehicle for several minutes and
eventually instructed a second officer, whose cruiser was closer
to the defendant, to initiate a stop. As the first officer
approached the defendant's vehicle, he observed the defendant
"struggling to swallow something." Upon opening the defendant's
mouth, he saw "two plastic baggies containing a light tan
powder" consistent with heroin. A subsequent search yielded
three tightly folded one hundred dollar bills, an additional
$790 in cash, and paraphernalia consistent with the storage and
concealment of illegal drugs. The defendant was arrested and
charged with one count of possession with intent to distribute a
1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and Boston Bar Association. 4
class A controlled substance (heroin), in violation of G. L.
c. 94C, § 32 (a).2
a. Plea colloquy. In November 2018, the defendant, who
was born in the Dominican Republic, pleaded guilty to the
charge; he had immigrated to the United States approximately
three years earlier as a legal permanent resident. Relevant to
the issue on appeal, after issuing the standard oral warnings,3
2 Pursuant to G. L. c. 94C, § 32 (a), a person convicted of possession of a class A controlled substance with intent to distribute may be sentenced to imprisonment "for not more than ten years" in State prison or "for not more than two and one- half years" in a house of correction.
3 At the plea colloquy, the judge advised the defendant as required by G. L. c. 278, § 29D, which provides:
"If you are not a citizen of the United States, you are hereby advised that the acceptance by this court of your plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States" (emphasis added).
He also advised the defendant pursuant to a prior version of Mass. R. Crim. P. 12 (c) (3) (A) (iii), as appearing in 470 Mass. 1501 (2015), then in effect, which provided:
"[I]f the offense to which the defendant is pleading guilty, nolo contendere, or admitting to sufficient facts is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this conviction would result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States" (emphases added).
"[S]uch warnings are 'not an adequate substitute for defense counsel's professional obligation to advise her client of the 5
the judge specifically asked plea counsel, "[I]f there are any
immigration consequences [of this plea], have you discussed
those pursuant to Commonwealth against Clarke?" See
Commonwealth v. Clarke, 460 Mass. 30 (2011). Counsel replied,
"Yes, I have, Your Honor." After accepting the plea, the judge
sentenced the defendant to six months of incarceration,
suspended for one year with conditions of probation, including,
inter alia, that he maintain employment and commit no further
violations of the law.4
likelihood of specific and dire immigration consequences that might result from such a [guilty] plea.'" Commonwealth v. DeJesus, 468 Mass. 174, 177 n.3 (2014), quoting Commonwealth v. Clarke, 460 Mass. 30, 48 n.20 (2011).
4 The defendant and plea counsel signed the standard tender of plea form, which included an acknowledgement by the defendant that a guilty plea may have immigration consequences and an affirmation by plea counsel that he "explained to the defendant the legal rights and consequences referred to" in the form. The plea judge noted on the defendant's tender of plea form: "Counsel has advised immigration consequences." Specifically, the form restated the warnings that the judge orally delivered pursuant to G. L. c. 278, § 29D, and Mass. R. Crim. P. 12 (c) (3) (A) (iii) (b), as appearing in 470 Mass. 1501 (2015):
"I understand that if I am not a citizen of the United States, the acceptance by this court of my plea of guilty . . . may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States. If the offense to which I am pleading guilty . . . is under federal law one that presumptively mandates removal from the United States and federal officials decide to seek removal, it is practically inevitable that this disposition would result in deportation, exclusion from admission, or denial of naturalization under the laws of the United States" (emphases added). 6
b. Removal proceedings. Approximately two years and three
months later, in February 2021, while returning to the United
States from the Dominican Republic alongside his family,
immigration officials detained the defendant. According to the
defendant, immigration officials informed him that he "would be
put into removal proceedings and faced deportation" due to his
conviction; the defendant claims that prior to his detention, he
was unaware of the severe immigration consequences of his plea.5
c. Motion to withdraw. In April 2022, approximately
fourteen months after his detention by immigration officials,
the defendant filed a motion to withdraw his guilty plea on the
basis that he received ineffective assistance of plea counsel.
5 The immigration consequences of a conviction of G. L. c. 94C, § 32 (a), are clear. Under 8 U.S.C. § 1227(a)(2)(B)(i):
"Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one's own use of [thirty] grams or less of marijuana, is deportable" (emphases added).
We have acknowledged that, under Federal law, a defendant convicted of possession of a controlled substance with intent to distribute has "virtually no avenue for relief from deportation once convicted of that crime." DeJesus, 468 Mass. at 181, citing Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) (Federal statute "prohibits the Attorney General [of the United States] from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case"). 7
In support of his motion, the defendant submitted two affidavits
-- his own and that of plea counsel.
The defendant averred that although plea counsel had
advised him that a guilty plea would bar him from obtaining
United States citizenship, counsel did not warn him that the
plea would terminate his permanent resident status and render
him automatically deportable without eligibility for relief in
Federal immigration proceedings. The defendant also averred
that, had he been informed accurately of the immigration
consequences of his plea, he would not have accepted the plea
and knowingly jeopardized his ability to remain in the United
States with his wife and two sons, who depend on him. Instead,
the defendant averred, he would have urged plea counsel to
resolve the case so as to avoid immigration consequences and, if
that were not possible, to proceed to trial.
Plea counsel averred that, at the time of the plea, he
"would have explained to [the defendant] that he would be
subject to deportation but not that he would be automatically
deported, mandatorily detained by [Federal immigration
officials], and ineligible for any relief in Immigration Court."
Plea counsel further averred that he "now know[s] that such
advice is inadequate pursuant to Padilla v. Kentucky, [559 U.S.
356 (2010),] and its Massachusetts progeny, including
Commonwealth v. DeJesus, 468 Mass. 174 (2014)." See DeJesus, 8
supra at 181-182 & n.5 (where immigration consequence was clear,
plea counsel "was obligated to provide to his client, in
language that the client could comprehend, the information that
presumptively mandatory deportation would have been the legal
consequence of pleading guilty").
The defendant requested an evidentiary hearing. The motion
judge, who was also the plea judge, denied this request,
implicitly finding that the defendant had not made an adequate
showing to merit one.
Evaluating the affidavits of the defendant and plea counsel
against his contemporaneous notes from the plea colloquy, his
recollection,6 and the parties' arguments at a nonevidentiary
hearing, the judge found that the affidavits were not credible.
The judge discredited the defendant's affidavit as belatedly
submitted four years after the plea. The judge also found the
defendant's affidavit to be self-serving but recognized that the
sworn statements were corroborated by plea counsel's affidavit.
Turning to the latter, the judge determined that plea counsel's
affidavit was not credible on the sole basis that it
contradicted counsel's representation during the plea colloquy
6 At the nonevidentiary hearing, the motion judge noted that he listened to the recording of the plea hearing to refresh his recollection. 9
that he had advised his client of the immigration consequences
of a guilty plea as required by Clarke, 460 Mass. 30.
The Appeals Court affirmed in an unpublished memorandum and
order pursuant to its rule 23.0. See Commonwealth v. Santana,
104 Mass. App. Ct. 1117 (2024). We granted the defendant's
application for further appellate review.
2. Discussion. a. Standard of review. "A motion to
withdraw a guilty plea is treated as a motion for a new trial
. . . ." DeJesus, 468 Mass. at 178. "We review a judge's
decision to deny a motion for a new trial without holding an
evidentiary hearing for a significant error of law or other
abuse of discretion" (quotation and citation omitted).
Commonwealth v. Alemany, 488 Mass. 499, 517-518 (2021).
Where, as here, the motion judge was also the plea judge,
substantial deference is afforded to the judge's determinations,
recognizing the judge's superior position to assess the
credibility of the defendant's claims.7 Commonwealth v. Lys, 481
7 The defendant contends that our review is de novo because no evidentiary hearing was held and, therefore, we are in as good a position as the judge to evaluate the documentary record, including the affidavits. This argument overlooks the full context of the judge's decision. The ruling was not, as the defendant suggests, based solely on a cold review of the transcript and written submissions. Rather, the motion judge properly relied in part on his unique vantage point as the plea judge in assessing the credibility of the affidavits. See Sylvain, 473 Mass. at 835 ("To the extent that a motion judge was in a better position to evaluate the credibility of the affiants, we will defer to the judge's assessment of the 10
Mass. 1, 4 (2018). See Commonwealth v. Goparian, 496 Mass. 348,
356 (2025) (where motion judge was also trial judge "we afford
special deference to" judge's decision to deny motion for new
trial without evidentiary hearing). "Reversal for abuse of
discretion in such circumstances 'is particularly rare.'" Id.
at 357, quoting Commonwealth v. Rice, 441 Mass. 291, 302 (2004).
An abuse of discretion is not measured by whether the appellate
court would have reached the same conclusion as the judge, see
Commonwealth v. Lane, 462 Mass. 591, 597 (2012); nonetheless,
the judge's "discretion . . . 'is not boundless and absolute,'"
Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), S.C., 478
Mass. 189 (2017), quoting Commonwealth v. Genius, 402 Mass. 711,
714 (1988). Under the abuse of discretion standard, we will
affirm unless the judge's decision resulted from "a clear error
of judgment in weighing the factors relevant to the decision . .
. such that the decision falls outside the range of reasonable
alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
In determining whether an evidentiary hearing is required
in connection with a motion for a new trial, the motion judge
credibility, weight, and impact of the affidavits submitted in support of a motion to withdraw a guilty plea" [quotation omitted]). Under the circumstances, we review the reasons the judge provided for rejecting the affidavits to assess whether the judge acted within his discretion. See discussion infra. 11
must examine whether the defendant's "motion and affidavits
present a 'substantial issue'" (citation omitted). Lys, 481
Mass. at 5. See Commonwealth v. Chatman, 466 Mass. 327, 334
(2013) ("An evidentiary hearing is required only where a
'substantial issue' has been raised"). In assessing whether a
substantial issue has been raised, the judge must consider (1)
"the seriousness of the issue itself" and (2) "the adequacy of
the defendant's showing on that issue." Commonwealth v. Denis,
442 Mass. 617, 628 (2004). To make an adequate showing, a
defendant "need not prove the issue raised," but the motion and
supporting materials "must at least contain sufficient credible
information to cast doubt on the issue." Id. at 629.
b. Seriousness of the issue: ineffective assistance of
counsel. The defendant's motion to withdraw his plea on the
ground that he received ineffective assistance of counsel
"raises an issue of constitutional importance that readily
qualifies as a serious issue" (quotation and citation omitted).
Denis, 442 Mass. at 629. It is well settled that, in view of
the reality that "[p]reserving the client's right to remain in
the United States may be more important to the client than any
potential jail sentence," constitutionally competent counsel
"must inform her client whether his plea carries a risk of
deportation" (quotation and citation omitted). Padilla, 559
U.S. at 368, 374 (setting forth Sixth Amendment requirement). 12
See Sylvain, 466 Mass. at 436 (art. 12 requires that trial
counsel "accurately advise a noncitizen client of the
deportation consequences of a guilty plea or a conviction at
trial").
c. Adequacy of showing. The more difficult question is
whether the judge erred in finding that the defendant failed to
make an adequate showing warranting an evidentiary hearing. The
judge recognized that the defendant's affidavit, which he found
to be not credible on the grounds that it was tardy and self-
serving, was corroborated by plea counsel's affidavit; but he
found the latter to be not credible on the basis that it was
contradicted by counsel's representations during the plea
colloquy. Accordingly, we turn to examine plea counsel's
affidavit, focusing on the judge's stated reason for
discrediting it. See Lys, 481 Mass. at 6-7 (examining stated
reason that motion judge, who was also plea judge, credited
defendant's affidavit that plea counsel had not advised him of
immigration consequences and emphasizing importance of judge
providing reasons for denying motion to assist appellate court
in assessing whether determination constituted abuse of
discretion); Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015)
(appellate court looks to judge's "reasons for accepting or
rejecting a particular affidavit" to assess "whether the judge 13
acted within his or her discretion" in denying motion for new
trial).
"A judge is not required to credit assertions in affidavits
submitted in support of a motion . . . and may evaluate them in
light of factors pertinent to credibility." Commonwealth v.
Torres, 469 Mass. 398, 403 (2014). Here, the judge examined
plea counsel's affidavit in light of counsel's representation
during the plea colloquy that he had discussed the plea's
immigration consequences with the defendant as required by
Clarke, 460 Mass. at 45-46. The judge then discredited the
affidavit because he found that it "contradict[ed]" the recorded
plea colloquy. Thus, the foundation of the judge's credibility
finding was his determination that counsel's statements during
the colloquy were irreconcilable with his affidavit.
But that determination is infirm. Counsel's statements at
the colloquy regarding compliance with Clarke, on the one hand,
and his present averments that he would have told the defendant
that he was subject to deportation, but not that he was
automatically deportable, on the other hand, are not inherently
in tension.
Specifically, in Clarke, we did not have occasion to
analyze the adequacy of counsel's advice regarding the
immigration consequences of a plea because counsel did not
inquire into the defendant's immigration status at all, let 14
alone provide advice regarding the immigration consequences of a
guilty plea. Clarke, 460 Mass. at 45-46. Instead, in
concluding that Padilla applied retroactively,8 we summarized the
United States Supreme Court's holding in Padilla in various
ways.
We stated, for example, that "[i]n Padilla, the . . .
Supreme Court held that defense counsel's failure to advise a
client that a consequence of his guilty plea likely would be
deportation constituted ineffective assistance of counsel"
(emphasis added). Clarke, 460 Mass. at 31, citing Padilla, 559
U.S. at 368-369. We also observed that "defense counsel [in
Padilla] was ineffective by failing to advise her client of the
virtually automatic deportation consequences of his guilty plea"
(emphasis added). Clarke, supra at 35. We further summarized
the Supreme Court's central holding as "[constitutionally
competent] counsel must inform her client whether his plea
8 In Sylvain, we affirmed the central holding of Clarke, concluding that as a matter of Massachusetts law, Padilla did not announce a new rule, and therefore applied retroactively. Sylvain, 466 Mass. at 436. See Danforth v. Minnesota, 552 U.S. 264, 279-280 (2008) (concluding that "considerations of comity militate in favor of allowing state courts to grant [collateral] relief to a broader class of individuals than is required by [the retroactivity test under Federal law]"). But see Chaidez v. United States, 568 U.S. 342, 358 (2013) (holding that, for purposes of Federal law, Padilla announced new rule and therefore did not apply retroactively to defendants whose convictions became final prior to issuance of that decision). 15
carries a risk of deportation" (emphasis added). Id. at 45,
quoting Padilla, supra at 374. See Clarke, supra at 42, 46,
quoting Padilla, supra at 367 (noting Padilla's reliance on
national guidelines supporting view that "counsel must advise
her client regarding the risk of deportation" [emphasis added]).
Additionally, specifically addressing the defendant's plea of
guilty of possession with intent to distribute a controlled
substance in violation of G. L. c. 94C, § 32A, we stated that
the conviction "made him subject to deportation" and that
counsel's conduct was deficient as she failed to advise her
client that "his guilty pleas carried a substantial risk of
deportation" (emphases added). Clarke, supra at 46.
Thus, in Clarke, we referenced the advice required under
Padilla variously, including as relevant here that counsel must
advise a defendant that a conviction of possession with intent
to distribute a controlled substance would render him "subject
to" deportation.9 Id. In other words, counsel's confirmation at
9 In doing so, we mirrored the language used by the Supreme Court in Padilla. See Padilla, 559 U.S. at 368 ("Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which . . . specifically commands removal for [nearly] all controlled substances convictions" [emphasis added]); id. at 369 ("The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice [that conviction would not result in removal] was incorrect" [emphasis added]); id. at 373 ("The severity of deportation –- 'the equivalent of banishment or exile' . . . –- only underscores how 16
the colloquy that he advised his client as required by Clarke
and his later averment that he only would have told the
defendant that he would be "subject to" deportation are not
inconsistent. Indeed, his further averment that he now
understands that his advice would not meet the requirements of
DeJesus supports such a conclusion.
In DeJesus, we recognized that the Court in Padilla "used
various terms to describe a defense attorney's obligation to
give correct advice where the consequence of a guilty plea might
make a defendant subject to adverse immigration consequences,
but did not formulate the precise language that would satisfy
that obligation, and understood that the content of the advice
would depend on the circumstances." DeJesus, 468 Mass. at 179.
Accordingly, we clarified that where Federal law is clear that
the consequence of a guilty plea is virtually automatic
critical it is for counsel to inform her noncitizen client that he faces a risk of deportation" [emphasis added; citation omitted]); id. at 374 ("we now hold that counsel must inform her client whether his plea carries a risk of deportation" [emphasis added]). Significantly, the Supreme Court similarly stated, "We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation" (emphasis added). Id. at 360. Thus, while both Clarke and Padilla set forth that counsel must inform her client of the clear immigration consequences of a guilty plea, neither this court nor the Supreme Court addressed how counsel must meet that obligation; indeed, each suggested that informing the client that he was "subject to" deportation sufficed, a point the dissent seems to overlook. Post at . See discussion infra. 17
deportation, as it is for a conviction of possession of a
controlled substance with intent to distribute, plea counsel is
"obligated to provide to his client, in language that the client
[can] comprehend, the information that presumptively mandatory
deportation would [be] the legal consequence of pleading
guilty."10 Id. at 181.
There, counsel informed the defendant that he would be
"eligible for" deportation, that he "face[d] being deported and
being denied reentry into the United States," and, pertinently,
that he was "subject to the ramifications of deportation." Id.
at 176. Id. at 185 (Cordy, J., dissenting). We concluded that
such advice was insufficient to meet the requirements of Padilla
because it "did not convey what is clearly stated in Federal
law" –- that the defendant's "deportation [is] practically
inevitable."11 Id. at 181. Thus, counsel's affirmation at the
colloquy that he complied with Clarke does not inherently
contradict his later averments that he would have told the
10We declined to "dictate the precise language that must be employed, as each case will present different circumstances." DeJesus, 468 Mass. at 181 n.5.
11The term "subject to" can suggest some degree of discretion in the decision. Cf. Commonwealth v. Williamson, 462 Mass. 676, 680-682 (2012) (construing phrase "shall . . . be subject to community parole supervision for life" [CPSL] to afford sentencing judge discretion whether to impose CPSL). 18
defendant that he would be "subject to" deportation and that
such advice was deficient under DeJesus.
To be sure, it may be that plea counsel went further and
told the defendant in words that the defendant could comprehend,
as required by DeJesus, of the virtually automatic deportation
consequences of his guilty plea or similarly clear advice,
contrary to his averments in his affidavit that he did not. But
this highlights the need for an evidentiary hearing.
While we defer to the motion judge's findings especially
where, as here, he was the plea judge, those findings do not
support the judge's decision to discredit counsel's affidavit
altogether without an evidentiary hearing; indeed, it appears
the judge did not recognize the ambiguity and concluded instead
that counsel provided accurate immigration advice based solely
on counsel's affirmative answer during the colloquy to the
judge's question whether, if there were any immigration
consequences to the plea, counsel had provided advice pursuant
to Clarke. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545,
550 (2014) ("[W]hen the defendant raises a substantial issue of
fact, it is the better practice to conduct an evidentiary
hearing"). See also Commonwealth v. Al Kenani, 100 Mass. App.
Ct. 288, 293 (2021) (remanding for evidentiary hearing because
"motion judge could not reasonably find that plea counsel
informed the defendant that his deportation would be virtually 19
certain if he accepted the plea agreement without holding an
evidentiary hearing to explore the context and meaning of [plea
counsel's] statement"); Commonwealth v. Gordon, 82 Mass. App.
Ct. 389, 401 (2012) (observing necessity of evidentiary hearing
"to address ambiguities and gaps in the affidavits").
The Commonwealth contends that the judge also discredited
plea counsel's affidavit because counsel averred to what he
"would have" done, suggesting that "plea counsel may not have
specific knowledge as to this case." For its part, the dissent
determines that this is an independent rationale for
discrediting plea counsel's affidavit and finds counsel's
failure to state his "customary practice" as opposed to what he
"would have" done suspicious. Post at . The judge, however,
did not rest his credibility finding on this language from plea
counsel's affidavit or any perceived lack of specific knowledge.
On remand, the judge is, of course, free to consider the
Commonwealth's argument, as well as those now marshaled by the
dissent,12 id., in determining whether alternative grounds, or
any findings as to the adequacy of the defendant's showing on
the issue of prejudice, see note 13, infra, render an
12The judge did not discredit plea counsel's affidavit based on perceived inconsistency with the defendant's affidavit. Instead, the judge acknowledged that the defendant's affidavit was "not without corroboration" in the sworn statement of plea counsel. 20
evidentiary hearing unnecessary; we decline to do so in the
first instance. See Lys, 481 Mass. at 7-8 (remanding motion for
new trial to plea judge, who was also motion judge, with
instructions to provide express findings relating to whether
defendant received ineffective assistance of counsel and was
prejudiced thereby rather than addressing merits in first
instance); Sylvain, 466 Mass. at 439 (remanding for further
findings on motion to vacate plea, and if necessary to hold
evidentiary hearing, on issue of prejudice in recognition of
"the benefit of any findings or credibility assessments" of
motion judge in this regard).13
13To prevail on a claim of ineffective assistance of counsel, the defendant ultimately must show that (1) counsel's performance fell measurably below that of an ordinary fallible lawyer, and (2) the defendant suffered prejudice as a result. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In the context of a guilty plea, prejudice is shown only where there is "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial" (quotation and citation omitted). Clarke, 460 Mass. at 47. See Lee v. United States, 582 U.S. 357, 364- 365 (2017). The defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Clarke, supra, quoting Padilla, 559 U.S. at 372. To prove that rejecting the plea would have been rational, the defendant "bears the substantial burden of 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, 21
3. Conclusion. We vacate the order denying the
defendant's motion to withdraw his guilty plea and remand for
further proceedings consistent with this opinion.
So ordered.
supra at 47-48, quoting Saferian, supra, and Hill v. Lockhart, 474 U.S. 52, 60 (1985). See, e.g., Lee, supra at 369 (although defendant had no viable defense, he "adequately demonstrated a reasonable probability that he would have rejected the plea had he known it would lead to mandatory deportation").
Here, the defendant averred that he would not have accepted the plea deal had he been advised accurately as to the immigration consequences. Because the judge discredited counsel's affidavit, he did not reach the question of prejudice. We decline to do so in the first instance. See Sylvain, 466 Mass. at 439 (remanding with instructions "to provide findings relating to the issue of prejudice and, if necessary, to hold an . . . evidentiary hearing," where defendant averred that he would have elected to go to trial but for his attorney's erroneous advice but motion judge made no findings or credibility assessments as to defendant's claims of prejudice). GEORGES, J. (dissenting, with whom Gaziano, J., joins).
Just last term, we reaffirmed our long-standing precedent that
"[r]eversal for abuse of discretion [where the motion judge was
also the trial judge] 'is particularly rare.'" Commonwealth v.
Goparian, 496 Mass. 348, 357 (2025), quoting Commonwealth v.
Rice, 441 Mass. 291, 302 (2004).1 In my view, today's decision
departs from that settled principle -- not because the court
misstates the governing standard, but because it applies that
standard in a manner that contracts the discretion long afforded
to motion judges acting as gatekeepers in assessing the need for
an evidentiary hearing under Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001). Rather than deferring to
the judge who presided over the plea hearing and later ruled on
the motion to withdraw the defendant's guilty plea, the court
concludes that an evidentiary hearing is required and remands
for further proceedings, notwithstanding the highly deferential
standard that governs our review.
1 See, e.g., Commonwealth v. Upton, 484 Mass. 155, 162 (2020) ("Reversal for abuse of discretion . . . is particularly rare" where motion judge also conducted trial [quotation and citation omitted]); Commonwealth v. Lugo, 482 Mass. 94, 102 (2019) ("[r]eversal for abuse of discretion is particularly rare where, as here, the judge acting on the motion was also the trial judge" [quotation and citation omitted]); Cohen v. Peterson, 320 Mass. 315, 316 (1946) ("it is only in rare instances that it can be ruled that there has been an abuse of discretion"). 2
That approach departs from our repeated admonition that, in
assessing whether there has been an abuse of discretion, "it is
irrelevant what the Justices of this court would have done had
they been in the position of the [motion] judge" (citation
omitted). Commonwealth v. Lane, 462 Mass. 591, 597 (2012).
Even accepting the court's articulation that a judge's
discretion is not "boundless," the question remains whether the
ruling fell outside the range of reasonable alternatives. See
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In my
view, it did not. Here, the denial of the defendant's motion
without an evidentiary hearing accords with well-established
precedent and falls comfortably within the judge's broad
discretion. See Commonwealth v. Denis, 442 Mass. 617, 628-629
(2004); Commonwealth v. Goodreau, 442 Mass. 341, 355 (2004).
Because I would affirm the judge's ruling, I respectfully
dissent.
Discussion. 1. Standard of review. A postsentence motion
to withdraw a guilty plea is treated as a motion for a new trial
under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501
(2001). See Commonwealth v. Nikas, 431 Mass. 453, 456 (2000).
The denial of such a motion is reviewed for "significant legal
error or abuse of discretion." Goparian, 496 Mass. at 356.
That review is sharply circumscribed. The question is not
whether this court "would have reached a different result," but 3
whether the ruling reflects "a clear error of judgment in
weighing the factors relevant to the decision, such that the
decision falls outside the range of reasonable alternatives"
(quotation and citation omitted). L.L., 470 Mass. at 185 n.27.
See Lane, 462 Mass. at 597. Where, as here, the judge also
presided over the plea hearing, that exercise of discretion is
entitled to particular deference. See Commonwealth v. Scott,
467 Mass. 336, 344 (2014).
An evidentiary hearing is not required where the motion and
supporting materials fail to raise a substantial issue. Denis,
442 Mass. at 628. Whether a substantial issue exists turns on
two considerations: (1) the seriousness of the issue, and (2)
the adequacy of the defendant's factual showing. Goparian, 496
Mass. at 357. Both prongs must be satisfied. A serious issue
alone does not warrant a hearing absent credible factual
support. See Commonwealth v. Alemany, 488 Mass. 499, 520 (2021)
(evidentiary hearing was not warranted where motion judge
concluded that, "although the issue raised was serious, the
defendant did not make an adequate showing of a credible
claim").
In performing this assessment, motion judges act as
gatekeepers. As we have explained, "[t]he primary purpose of
Mass. R. Crim. P. 30 (c) (3) is to encourage the disposition of
motions for postconviction relief on the basis of affidavits 4
alone," and the decision whether to hold an evidentiary hearing
rests within "the sound discretion of the judge" (citation
omitted). Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015).
Ultimately, the credibility, weight, and significance of the
affidavits are matters committed "entirely" to the judge's
discretion. Id. at 405.
Although the defendant's submissions need not conclusively
establish ineffective assistance of counsel, they must at least
present "sufficient credible information to cast doubt on the
issue" (citation omitted). Commonwealth v. Upton, 484 Mass.
155, 162 (2020). To prevail on such a claim, the defendant must
satisfy the familiar two-prong test of Commonwealth v. Saferian,
366 Mass. 89, 96 (1974), by demonstrating that counsel's
performance fell measurably below that of an ordinary fallible
lawyer, and that the defendant was prejudiced as a result. See
Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015).
I agree with the court that a claim of ineffective
assistance of counsel is a serious one and, as such, satisfies
the first prong of the substantial issue inquiry. Ante at .
My analysis therefore turns to the second prong: the adequacy
of the defendant's factual showing.
2. Adequacy of the defendant's showing. The defendant
asserts that plea counsel's performance was constitutionally
deficient because counsel failed to advise him that the plea 5
would render him automatically deportable and "not . . .
eligible for any relief in the Immigration Court" upon any
return from travel abroad, advising him instead only that he
would "not be able to become a citizen." That contention,
however, runs headlong into the judge's credibility
determinations -- determinations for which the judge is the
"final arbiter" (citation omitted). Scott, 467 Mass. at 344.
To avoid this result, the defendant argues that the judge
erred in discounting the affidavits submitted by the defendant
and plea counsel concerning the immigration advice provided.
The court concludes that an evidentiary hearing was required
because, in its view, plea counsel's affidavit casts doubt on
the adequacy of the immigration advice. See Ante at .
Respectfully, that conclusion overlooks the governing standard
of review. See L.L., 470 Mass. at 185 n.27. The question is
not whether an appellate court might discern some abstract doubt
in the defendant's supporting materials, but whether the judge
abused his discretion in determining that the defendant failed
to make a sufficiently credible and substantial showing to
warrant a hearing. See Goparian, 496 Mass. at 356–357.
Here, the judge -- who presided over the plea colloquy --
evaluated the affidavits against the contemporaneous record and
explained why they did not. It is to those affidavits, and the
judge's assessment of them, that I now turn. 6
a. Plea counsel's affidavit. The defendant contends that
the judge was required to credit plea counsel's averments
regarding the advice he would have given, and that counsel's
characterizations of that advice as "inadequate," standing
alone, compelled an evidentiary hearing. Our precedent
forecloses that argument. A judge is not required to accept
assertions in affidavits submitted in support of a motion to
withdraw a guilty plea and may assess them under traditional
credibility considerations, including, without limitation, bias,
self-interest, and delay. See Commonwealth v. Torres, 469 Mass.
398, 403 (2014). That rule applies even where counsel's
affidavit purports to concede error. See Commonwealth v. Riley,
467 Mass. 799, 811 n.14 (2014) (implicitly discrediting trial
counsel's affidavit concerning alleged deficiencies in his
investigation "was within the province of the judge").
The court instead focuses on the judge's determination that
plea counsel's affidavit conflicted with counsel's
representation during the plea colloquy that he had advised the
defendant of the immigration consequences in accordance with
Commonwealth v. Clarke, 460 Mass. 30 (2011). The court
emphasizes that Clarke employed varied formulations of counsel's
obligation and reasons that it was not until Commonwealth v.
DeJesus, 468 Mass. 174 (2014), that we clarified counsel's duty
where deportation is virtually inevitable. Ante at . 7
That observation has force. Clarke did summarize Padilla
v. Kentucky, 559 U.S. 356 (2010), using varied formulations of
the required advice, including informing the client that
deportation was "likely," "virtually automatic," and a "risk"
(citation omitted). Clarke, 460 Mass. at 31, 35, 45. But
Clarke was itself an application of Padilla, which described
deportation under the same Federal provision at issue here as
"practically inevitable," Padilla, supra at 364, and it
expressly adopted Padilla's holding that counsel is
constitutionally ineffective when he fails to advise a client
that a conviction will render his deportation "virtually
automatic," Clarke, supra at 35. See Padilla, supra at 360
(concluding that constitutionally competent counsel would have
advised defendant that his conviction made him "subject to
automatic deportation").2 Both cases involved the same removal
provision, 8 U.S.C. § 1227(a)(2)(B)(i), under which deportation
for certain drug offenses is "practically inevitable." Padilla,
supra at 363-364, 368. See Clarke, supra at 46. Where "the
2 In Clarke, 460 Mass. at 46, we did not reach the adequacy of the counsel's advice because counsel was unaware of the defendant's immigration status. Under those circumstances, we concluded that "it [was] highly unlikely that [counsel] ever informed [the defendant] that his guilty pleas carried a substantial risk of deportation," where counsel neither knew her client's status nor recalled discussing any immigration consequences of the plea. Id. 8
deportation consequence [of a guilty plea] is truly clear,"
counsel's duty is "equally clear" -- counsel must provide
correct advice. Id. at 42, quoting Padilla, supra at 369.
We later recognized this understanding of Clarke in
Commonwealth v. Lys, 481 Mass. 1 (2018), explaining that
effective representation requires advising a client of a guilty
plea's "truly clear" deportation consequences. Id. at 5,
quoting Padilla, 559 U.S. at 369. The court in Lys further
observed, quoting Clarke, that "as in Padilla, the consequences
of the defendant's plea were clear" (citation omitted). Lys,
supra. The same is true here. The defendant was convicted
under a section of the same criminal statute, G. L. c. 94C, and
rendered automatically deportable under the same Federal
provision, 8 U.S.C. § 1227(a)(2)(B)(i), as those at issue in
Clarke (and later DeJesus). Accordingly, the court's
interpretation of Clarke is not easily squared with Padilla
itself, which described deportation under the same statute and
for like offenses as "practically inevitable." Padilla, supra
at 364.3
3 I also note that several United States Courts of Appeals have understood that Padilla's holding encompasses the "practically inevitable" language that I rely upon. See United States v. Hercules, 947 F.3d 3, 8 (1st Cir. 2020), quoting Padilla, 559 U.S. at 363-364 ("Theoretically, then, 'removal is practically inevitable' under contemporary law for noncitizens who commit removable offenses"); United States v. Rodriguez- Vega, 797 F.3d 781, 786 (9th Cir. 2015), quoting Padilla, supra 9
Against that backdrop, the judge reasonably interpreted
plea counsel's colloquy representation -- that he had advised
the defendant pursuant to Clarke -- as confirming that counsel
conveyed the practical inevitability of deportation. The
defendant maintains that counsel's colloquy affirmation
indicated only that he advised the defendant that he would be
"subject to deportation," not that deportation would be
automatic. Even if that interpretation is conceivable, the
judge's contrary reading -- grounded in his recollection,
contemporaneous notes, and review of the plea recording -- was
at least equally reasonable and, therefore, cannot constitute an
abuse of discretion. Cf. Commonwealth v. Carr, 458 Mass. 295,
303 (2010) ("Where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous" [citation omitted]).
More fundamentally, the problem with plea counsel's
affidavit extends beyond its inconsistency with the plea
colloquy: plea counsel's account is not even consistent with
the defendant's. Plea counsel avers that he "would have
("Her conviction of a removable offense renders her removal 'practically inevitable'"); United States v. Ramos, 470 Fed. Appx. 836, 837 (11th Cir. 2012), quoting Padilla, supra ("The Supreme Court noted in Padilla that, 'if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable'"). 10
explained to [the defendant] that he would be subject to
deportation, but not that he would be automatically deported,
mandatorily detained by [Immigration and Customs Enforcement],
and ineligible for any relief in Immigration Court." The
defendant's affidavit, by contrast, avers only that plea counsel
warned the defendant that he "would not be able to become a
citizen." Notably absent from the defendant's affidavit is any
assertion that counsel advised him he was "subject to
deportation." Indeed, the defendant affirmatively avers the
opposite: "[Plea counsel] . . . did not tell me that I would be
deported from the United States and lose my permanent residency
because of this case."4 Where plea counsel's and the defendant's
affidavits diverge in this manner, the judge was well within his
discretion to discredit plea counsel's affidavit. See Vaughn,
471 Mass. at 405 ("the credibility, weight, and impact of the
affidavits are entirely within the motion judge's discretion").
Given those considerations, and the deficiencies in plea
counsel's affidavit, the judge acted well within his discretion
in treating it as contradictory. See Commonwealth v. King, 445
Mass. 217, 235 (2005), cert. denied, 546 U.S. 1216 (2006)
(resolving "inconsistencies between the testimony" of various
witnesses is "solely for the fact finder"). It is not the role
4 This discrepancy also provides an independently sufficient basis for the judge to discredit the defendant's affidavit. 11
of this court to second-guess such credibility determinations
where, as here, the record supports them. See, e.g., Lane, 462
Mass. at 597.
Nor was the judge's skepticism of plea counsel's affidavit
grounded solely in its inconsistencies. The affidavit itself
provided additional, independent reasons for doubt: it speaks
almost entirely in conditional terms -- describing what counsel
would have done or said -- without asserting any actual
recollection of the plea or the advice provided.5 Cf. Goodreau,
442 Mass. at 350-351 (expert affidavit discussing only "possible
conditions" rather than "a[n] [actual] diagnosis of any
particular condition" insufficient). Nor did counsel aver that
he remembered meaningful details about the defendant or his
case, the immigration advice provided, or the plea. See id. at
354 (judge may consider "suspicious failure to provide pertinent
information from an expected and available source"). Although
5 The court declines to address this issue on the ground that the judge did not expressly rely on the affidavit's conditional language in discrediting plea counsel's affidavit. Ante at . That limitation, however, is unwarranted. We have long recognized that "[w]e may affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings" (quotation and citation omitted). Commonwealth v. Camacho, 483 Mass. 645, 648 (2019), quoting Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). The wording of plea counsel's affidavit was plainly part of the record before the judge, and it therefore remains properly before us. 12
counsel averred what he "would have" advised the defendant, he
did not describe his customary practice at the relevant time
regarding immigration advice to noncitizen defendants. Contrast
Lavrinenko, 473 Mass. at 54 (plea counsel admitted "his usual
practice was simply to give all of his clients a standard
warning on immigration consequences"). The defendant, despite
having access to plea counsel, offered no explanation for these
deficiencies or omissions.
Taken together, plea counsel's lack of concrete
recollection and his failure to describe his contemporaneous
practice provided additional, sound evidentiary bases for the
judge's skepticism -- particularly considering the affidavits'
failure to agree on what advice was actually given. In these
circumstances, deference to the judge's credibility assessment
is not only appropriate -- it is required. See Commonwealth v.
Sylvain, 473 Mass. 832, 835 (2016) (substantial deference owed
to judge assessing credibility of affidavits supporting motion
to withdraw guilty plea).
b. The defendant's affidavit.6 Turning to the defendant's
affidavit, he averred that plea counsel never advised him that
his plea would result in mandatory deportation or render him
6 The court does not address the judge's rationale for declining to credit the defendant's affidavit. Because that credibility determination provides an independent and sufficient basis to affirm, I address it briefly. 13
ineligible for relief under Federal immigration law. The judge
found the affidavit not credible, characterizing it as both
self-serving and belated. The defendant contends that this was
error, arguing that all defendant affidavits are "self-serving
to some point," and that any delay was excusable because he did
not learn of plea counsel's deficient advice until he was
detained by immigration authorities in February 2021. Neither
contention is persuasive.
We have repeatedly recognized that a "motion judge may
reject a defendant's self-serving affidavit as not credible,"
even when uncontradicted (citation omitted). Commonwealth v.
McWilliams, 473 Mass. 606, 621 (2016). See Commonwealth v.
Rzepphiewski, 431 Mass. 48, 55 (2000) ("A judge is not required
to accept as true the allegations in a defendant's affidavit,
even if nothing in the record directly disputes them"). Nor was
the judge's reliance on timing improper. The affidavit was
submitted approximately fourteen months after the defendant's
immigration detention, and delay is a well-established factor
bearing on credibility. See Torres, 469 Mass. at 403 (judge may
evaluate affidavit "in light of factors pertinent to
credibility, including . . . delay").
Conclusion. A defendant is not entitled to an evidentiary
hearing merely because affidavits are filed; the supporting
materials must present specific, credible facts that cast doubt 14
on a substantial issue. See Upton, 484 Mass. at 162. Here, the
judge exercised precisely the kind of reasoned, record-based
discretion to which appellate courts owe deference. He presided
over the plea colloquy, evaluated the later affidavits in light
of his contemporaneous notes and recollection, and articulated
specific reasons for finding them unpersuasive. Because the
defendant failed to raise a substantial issue, denying the
motion to withdraw his guilty plea without an evidentiary
hearing under these circumstances accords with long-standing
precedent and falls well within the judge's discretion.
For these reasons, I respectfully dissent.