Commonwealth v. Yoonsang Bae.

• Court: Massachusetts Appeals Court
• Decided: July 1, 2025
• Docket: 24-P-0785
• Status: Unpublished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

24-P-785

COMMONWEALTH

vs.

YOONSANG BAE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial in 2019, the defendant,

Yoonsang Bae, was found guilty in the Superior Court of one

count of rape. A panel of this court affirmed his conviction

and the denial of his first motion for a new trial, see Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), in an

unpublished decision under our rule 23.0. See Commonwealth v.

Bae, 101 Mass. App. Ct. 1124 (2022). In 2024, the defendant,

who is a South Korean citizen, filed a second motion for a new

trial, see Mass. R. Crim. P. 30 (b), arguing that his trial

counsel provided incorrect advice about the immigration

consequences of a proposed plea agreement and, in doing so,

provided him with ineffective assistance. The judge denied this motion, concluding that trial counsel's advice was accurate.

Because we discern no abuse of discretion or other error in the

judge's ruling, we affirm.

Background. Before trial, the Commonwealth offered a plea

bargain under which the rape charge could be resolved by the

defendant's admission to sufficient facts for a finding of

guilty as to a reduced charge of indecent assault and battery,

see G. L. c. 265, § 13H, and his agreement to a continuance

without a finding for a period of time ("probably one year").

Trial counsel recommended that the defendant accept this offer,

which would not have exposed him to the risk of incarceration or

the requirement that he register as a sex offender. Counsel

cautioned, however, that the disposition "could render [the

defendant] immediately removable from the United States," and

could prevent him from being readmitted to this country if he

left it. The defendant rejected the offer because he was

unwilling to accept those potential immigration consequences.

As we have noted, the defendant went to trial, was

convicted of rape, and was sentenced to a term of incarceration

of from three years to three years and one day. After

completing his sentence, the defendant became subject to removal

proceedings. He made a "voluntary departure" to South Korea in

2022.

2 Discussion. We review a judge's decision on a motion for a

new trial for error of law or abuse of discretion. See

Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). To prevail

on his claim of ineffective assistance of counsel, the defendant

must show: (1) that counsel's conduct fell "measurably below

that which might be expected from an ordinary fallible lawyer,"

and (2) that this conduct "likely deprived the defendant of an

otherwise available, substantial ground of defence."

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

The defendant's second motion for a new trial was premised

on his contention that his counsel incorrectly advised him that

indecent assault and battery, G. L. c. 265, § 13H, is a "crime

involving moral turpitude" (CIMT) for the purposes of Federal

immigration law, and that his admission to sufficient facts for

a finding of guilt as to that offense would subject him to

adverse immigration consequences. See 8 U.S.C.

§ 1227(a)(2)(A)(i); 8 U.S.C. § 1182(a)(2)(A)(i); Commonwealth v.

Marinho, 464 Mass. 115, 124-125 (2013). The judge concluded

that counsel's advice was correct, however, and that his conduct

therefore did not fall below accepted standards of practice.

See Saferian, 366 Mass. at 96. We discern no error or abuse of

discretion in that ruling.

3 As the judge noted in a thoughtful memorandum of decision,

it is well settled in Massachusetts and the United States Court

of Appeals for the First Circuit (First Circuit) that indecent

assault and battery, G. L. c. 265, § 13H, is a CIMT. See, e.g.,

Maghsoudi v. Immigration & Naturalization Serv., 181 F.3d 8, 14-

15 (1999); Commonwealth v. Taron T., 104 Mass. App. Ct. 219, 224

n.6 (2024), citing Maghsoudi, supra, and quoting Matter of

Silva-Trevino, 24 I. & N. Dec. 687, 689 n.1 (A.G. 2008)

(indecent assault and battery "involve[s] both reprehensible

conduct and some degree of scienter, whether specific intent,

deliberateness, willfulness, or recklessness," and thus is

CIMT). The defendant's reliance on the reasoning of the Board

of Immigration Appeals (BIA) in Matter of Silva-Trevino, 26 I. &

N. Dec. 826 (BIA 2016) (Silva-Trevino II), is misplaced. In

that case, the BIA was tasked with developing a uniform standard

for the proper construction and application of 8 U.S.C. § 1182,

the portion of the Immigration and Naturalization Act governing

"inadmissible aliens." See Silva-Trevino II, supra at 829. The

framework the BIA developed, however, applies "unless circuit

court law dictates otherwise," id. at 831, which the law of the

First Circuit does. See id. at 832. As the BIA itself

acknowledged in Silva-Trevino II, "[t]he First Circuit has

explicitly reserved its determination whether the realistic

4 probability test [incorporated in the 'uniform standard'

established in Silva-Trevino II] should apply and looks to the

inherent nature of the crime of conviction, as defined in the

criminal statute" (quotation and citation omitted). Id.

Where First Circuit and Massachusetts cases decided after

Silva-Trevino II have continued to define G. L. c. 265, § 13H,

as a CIMT, see, e.g., Taron T., 104 Mass. App. Ct. at 224 n.6,

and the BIA takes the position that "moral turpitude inheres in

all violations [of statutes which] necessarily involve

[unconsented-to] sexual contact," Matter of Jimenez-Cedillo, 271

I. & N. Dec. 1, 4 (BIA 2017), the motion judge could properly

have concluded that defense counsel's warning that the

defendant's plea presented a risk of "adverse consequences [to

his] immigration and visa status" was correct.1 Because the

judge's denial of the defendant's second motion for a new trial

1 The defendant averred that defense counsel told him "that the [proposed plea] would make [him] removable from the United States and [he] would be barred from readmission to the country." The record on appeal is inadequate for us to assess the accuracy of that aspect of defense counsel's advice. See Commonwealth v. Petit-Homme, 482 Mass. 775, 786 n.12 (2019) (precise contours of immigration consequences are dependent on factors including timing of CIMT relative to date of defendant's arrival, and whether defendant was permanent resident of United States).

5 therefore did not amount to an abuse of his discretion, we

affirm it.

Order entered June 27, 2024, denying second motion for new trial affirmed.

By the Court (Hand, Grant & Wood, JJ.2),

Clerk

Entered: July 1, 2025.

2 The panelists are listed in order of seniority.