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SJC-11896

                 COMMONWEALTH   vs.   KEMPESS SYLVAIN.



        Suffolk.       November 5, 2015. - March 14, 2016.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Alien. Practice, Criminal, Plea, Judicial discretion,
     Affidavit.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on April 17, 2007.

     Following review by this court, 466 Mass. 422 (2013),
further proceedings on a motion to vacate, filed on January 12,
2012, were had before James W. Coffey, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
     Laura Mannion Banwarth (Wendy S. Wayne, Committee for
Public Counsel Services, with her) for the defendant.


    DUFFLY, J.     Relying on advice from his attorney that a plea

agreement would not result in his deportation, the defendant,

who is not a citizen of the United States, pleaded guilty to one
                                                                   2


count of possession of cocaine.1   The attorney's advice was

incorrect, and Federal authorities eventually placed the

defendant in a removal proceeding.   The defendant moved to

vacate his guilty plea pursuant to Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), claiming ineffective

assistance of counsel.   That motion was denied, and we granted

the defendant's motion for direct appellate review.

     We concluded in Commonwealth v. Sylvain, 466 Mass. 422,

423-425 (2013) (Sylvain I), that the defendant received

ineffective assistance from his plea counsel when counsel

provided erroneous advice that the defendant would not be

subject to deportation if he received a suspended sentence of

less than one year in connection with a guilty plea to

possession of cocaine.   In our decision in Sylvain I, we noted

that "[a]lthough the defendant's affidavit [in support of the

motion to vacate was] highly suggestive that he would have

elected to go to trial but for his attorney's erroneous advice,"


     1
       The defendant was charged with one count of possession of
cocaine with the intent to distribute, G. L. c. 94C, § 32A (a),
and one count of a drug violation in a school zone. G. L.
c. 94C, § 32J. He filed a motion to suppress, which was not
heard because the parties reached a plea agreement before the
scheduled hearing. As part of the agreement, the defendant
pleaded guilty to possession of cocaine and the Commonwealth
agreed to recommend the dismissal of the distribution and school
zone charges. The judge sentenced the defendant to eleven
months in a house of correction, suspended for two years, in
accordance with the parties' agreement. The defendant
successfully completed his term of probation.
                                                                    3


we could not make such a determination in the absence of

additional findings and credibility determinations.    Id. at 439.

We therefore remanded the matter to the Boston Municipal Court

"with instructions to provide findings relating to the issue of

prejudice and, if necessary, to hold an additional evidentiary

hearing."   Id.

    On remand, the matter went before the judge who had

accepted the defendant's guilty plea, and who earlier had denied

his motion to vacate that plea.   The judge found, based

primarily on the affidavits of the defendant and his plea

counsel, that "the defendant placed particular emphasis on the

immigration consequences."   The judge stated that the affidavits

were supported by the fact that the defendant had agreed to a

disposition of eleven months' incarceration, suspended for two

years, indicating to the judge that deportation was a "live

issue" for the defendant at the time of the plea.    The

Commonwealth appealed, and we allowed the defendant's second

application for direct appellate review.

    The Commonwealth now contends that the judge erred in

allowing the defendant's motion to vacate his guilty plea

because the defendant failed to establish that he suffered

prejudice as a result of his counsel's ineffective

representation.   The Commonwealth asserts also that the judge

abused his discretion by relying primarily on the affidavits in
                                                                    4


allowing the defendant's motion.   Because the affidavits, which

properly were considered by the judge, provide a sufficient

basis on which to conclude that there was "a reasonable

probability that, but for counsel's errors, [the defendant]

would not have pleaded guilty and would have insisted on going

to trial" (citation omitted), see Commonwealth v. Clarke, 460

Mass. 30, 47 (2011) (Clarke), we affirm the allowance of the

motion to vacate.

    Background.     In the wake of our decision in Sylvain I, the

defendant filed a motion seeking an emergency evidentiary

hearing.   At an emergency hearing on November 13, 2013, defense

counsel called one witness, the mother of the defendant's son,

and submitted affidavits from members of his family and a

supplemental affidavit from plea counsel.   The defendant also

relied on his own previously submitted affidavit and that of his

plea counsel.   The Commonwealth objected to the submission in

evidence of affidavits made by family members who were

testifying, and argued that the only probative witness the judge

needed to hear from was the defendant.   Neither the defendant

nor plea counsel was present at the hearing.   Defense counsel

informed the judge that the defendant was in the custody of

Immigration and Customs Enforcement (ICE) officials in Plymouth,

and waived his presence.   The Commonwealth called no witnesses

and submitted no affidavits in opposition to the motion for a
                                                                    5


new trial.2   See Mass. R. Crim. P. 30 (c) (3), as appearing in

435 Mass. 1501 (2001) ("parties opposing a motion may file and

serve affidavits where appropriate in support of their

respective positions").

     As set forth in the judge's findings of fact, which are not

disputed by the Commonwealth, the defendant, a lawful permanent

resident of the United States, is a citizen of Haiti who came to

the United States with his family in 1996, when he was seventeen

years old.    He is a high school graduate of the Boston public

school system and has held various jobs in Massachusetts over

the last several years.   His mother, three sisters, his son, and

the mother of his son are all United States citizens.    In an

affidavit submitted in support for his motion for a new trial,

the defendant averred, "I would not have agreed to plead guilty

to something that would surely result in my deportation from the

country I have lived in for the past [fifteen] years. . . .

This is my home; all of my immediate family lives here, along

with my [six] year old son and my girlfriend of [eleven] and a

half years. . . .    I understand that by pleading guilty I got a

'deal,' . . . however, it's not a 'deal' if it results in me

being deported from my home and my family."

     2
       Responding to defense counsel's waiver of the defendant's
presence in court, the prosecutor stated that if the judge
intended to rely on the defendant's affidavit, "the Commonwealth
would need an opportunity to be able to cross-examine him."
                                                                      6


     The judge allowed the defendant's motion for a new trial

and issued a written decision explaining his reasoning.    The

Commonwealth filed a motion to reconsider, contending that the

judge improperly relied on the affidavits of plea counsel and

the defendant as evidence.   The judge offered to conduct a

further evidentiary hearing at which the Commonwealth would be

permitted to cross-examine witnesses, including plea counsel.3

The Commonwealth rejected this suggestion on the asserted basis

that it was not the Commonwealth's burden to call witnesses.

The judge then denied the Commonwealth's motion to reconsider,

and the Commonwealth appealed from that order and the order

allowing the defendant's motion for a new trial.

     Discussion.   1.   Standard of review.   "A motion to withdraw

a guilty plea is treated as a motion for a new trial pursuant to

Mass. R. Crim. P. 30 (b) . . . ."   Commonwealth v. DeJesus, 468

Mass. 174, 178 (2014), citing Commonwealth v. Furr, 454 Mass.

101, 106 (2009).   We review "the motion judge's conclusion only

to determine whether there has been a significant error of law

or other abuse of discretion."   Commonwealth v. Lavrinenko, 473

Mass. 42, 47 (2015), quoting Commonwealth v. Grace, 397 Mass.

303, 307 (1986).   To the extent that a motion judge was in a

     3
       We think that the judge took the appropriate course of
action by providing the Commonwealth with the opportunity to
challenge the factual assertions contained in the affidavits.
The Commonwealth, however, chose not to do so, and thus waived
any argument on this ground.
                                                                    7


better position to evaluate the credibility of the affiants, we

will defer to the judge's assessment of the "credibility,

weight, and impact of the affidavits" submitted in support of a

motion to withdraw a guilty plea.    See Commonwealth v. Pingaro,

44 Mass. App. Ct. 41, 48 (1997).    We grant "substantial

deference" to a decision on a motion brought pursuant to Mass.

R. Civ. P. 30 (b) "when the judge passing on the motion is the

same judge who heard the plea."     Commonwealth v. Grant, 426

Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003).     Contrast

Commonwealth v. Grace, supra ("When, as here, the motion judge

did not preside at trial, we defer to that judge's assessment of

the credibility of witnesses at the hearing on the new trial

motion, but we regard ourselves in as good a position as the

motion judge to assess the trial record").

    2.   Claim of abuse of discretion.     As we concluded when

this case was before us in 2013, counsel was ineffective in

giving erroneous advice to the noncitizen defendant regarding

the immigration consequences of his guilty plea.    See Sylvain I,

supra at 438.   Therefore, the sole question before us is whether

the judge abused his discretion in concluding that the defendant

suffered prejudice as a result of counsel's erroneous advice.

    The judge's conclusions of law reflect that he correctly

understood that, in order to satisfy the prejudice requirement

in these circumstances, "the defendant has the burden of
                                                                    8


establishing that 'there is a reasonable probability that, but

for counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial.'"   See Clarke, 460 Mass. at 47,

quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).   A defendant

may make this showing by demonstrating that "(1) he had an

available, substantial ground of defense . . . 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" (footnote

omitted).   Clarke, supra at 47-48, quoting Hill, supra.

     The judge found that the defendant did not have an

available ground of defense and could not have negotiated a

better plea agreement.   But he found that the defendant had met

his burden by establishing the presence of "special

circumstances."4   The judge gave "significant weight" to plea


     4
       The Commonwealth's argument that, even if the defendant
establishes the presence of special circumstances, the decision
to allow the motion for a new trial was nevertheless an abuse of
discretion because the defendant did not also establish that he
had a viable defense is unavailing; it disregards the standard
set forth in Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011)
                                                                    9


counsel's affidavits, in which the counsel stated (as summarized

by the judge) that "during the time of the plea, the defendant's

major concern was to avoid deportation."5   The judge found this

statement was "supported by the defendant's own affidavit."    In

that affidavit, the defendant averred that all of his family

lived in the United States, including his mother, father, three

sisters, the mother of his son, and his son, and that he would

not have agreed to accept the plea "deal" if he knew it would

have resulted in "being deported from my home and my family."

He said further, "I would have taken my chances at trial,

knowing full well that if I was found guilty at trial I would be

sentenced to committed time and then deported afterward; at

least I would have had a chance at staying in the country."

Relying on these affidavits, the judge found "that the defendant




(Clarke), that the presence of special circumstances alone may
be sufficient to meet the defendant's burden. The judge
properly considered the presence of special circumstances in
this case, to which he could give "substantial weight in
determining, based on the totality of the circumstances, whether
there is a reasonable probability that the defendant would have
rejected the plea offer and insisted on going to trial." See
Commonwealth v. Lavrinenko, 473 Mass. 42, 43 (2015).
     5
       During the 2013 hearing on the defendant's emergency
motion for a new trial, the judge stated that he credited plea
counsel's affidavits because counsel was a "veteran lawyer" who
appeared before the court "all the time."
                                                                   10


placed particular emphasis on the immigration consequence during

the plea."6

     Clearly, a judge is not required to credit statements in a

defendant's affidavit that he placed special emphasis on

immigration consequences because of his circumstances; a judge

could find those statements to be "merely self-serving."

Sylvain I, supra at 439.   In this case, however, the judge

looked to the two affidavits in order to evaluate the

credibility of the defendant's assertions that he placed a

particular emphasis on avoiding immigration consequences.     As

the judge explained, according to the affidavits of plea counsel

and the defendant, "the defendant was advised that if the

sentence was less than one year, that he would not be deported.

This is supported not only by the affidavits but by the sentence

itself, eleven months suspended for two years.   The sentence

provides insight to the court that it was a 'live' issue at the

time and the defendant thought it would be safe to plead

guilty."   Thus, the judge was able to conclude, without having


     6
       "[A] determination whether it would be rational for a
defendant to reject a plea offer 'must take into account the
particular circumstances informing the defendant's desire to
remain in the United States.'" Commonwealth v. DeJesus, 468
Mass. 174, 184 (2014), quoting People v. Picca, 97 A.D.3d 170,
183-184 (N.Y. 2012). Although the judge's decision reflects
that he gave "minimal weight" to affidavits from the defendant's
family attesting to the defendant's reasons for seeking to avoid
deportation to Haiti, he nonetheless appears to have taken those
circumstances into account.
                                                                  11


to test the defendant's statements through cross-examination and

personal observation of his demeanor, that the statements were

supported by the context in which the defendant had pleaded

guilty and by his counsel's affidavit.

     Based on the above, the judge determined that, here, the

defendant had established "the presence of 'special

circumstances'" showing that he "placed . . . particular

emphasis on immigration consequences in deciding whether to

plead guilty."   Commonwealth v. DeJesus, 468 Mass. at 183,

quoting Clarke, 460 Mass. at 47-48, and that the defendant's

expressed concern about being deported was not a mere pretext

for seeking a new trial.7

     In many circumstances, a defendant, as a result of

counsel's ineffectiveness in failing to warn about the

immigration consequences of a guilty plea, is deprived of the

opportunity to evaluate the risks of going to trial against the

possible immigration consequences that may arise from a guilty


     7
       We note that the defendant established that he indeed had
considered the immigration consequences of a guilty plea before
pleading guilty, and therefore that he had "placed" emphasis on
his immigration consequences before making the decision to
accept the plea. See Clarke, 460 Mass. at 47-48. This inquiry
is somewhat different from the circumstance in which a defendant
is unaware that he faces immigration consequences because his
counsel failed properly to advise him of them. In those types
of cases, the presence of special circumstances must be shown in
order to support a conclusion that a defendant "would have
placed" emphasis on such consequences, had he been advised of
them. Id. at 47.
                                                                    12


plea.    In those cases, a judge may face a more difficult task in

determining whether a defendant "would have placed . . .

particular emphasis on the immigration consequences in deciding

whether to plead guilty."    See Clarke, 460 Mass. at 47-48,

quoting Hill, supra at 60.    Here, however, the judge found that

the immigration consequence of a guilty plea was a "live" issue

at the plea hearing, but the defendant was ill-advised by

counsel.   The judge did not abuse his discretion in allowing the

defendant's motion for a new trial.

    3.     Reliance on affidavits.   As discussed supra, we

conclude that the judge's decision properly relied on the

affidavits submitted in support of the defendant's motion for a

new trial.    We reject the Commonwealth's argument that the judge

erred in allowing a new trial based solely on those affidavits.

The rule of criminal procedure governing motions for

postconviction relief, Mass R. Crim. P. 30 (c) (3), states

explicitly that a "judge may rule on the issue or issues

presented by such a motion on the basis of facts alleged in the

affidavits without further hearing if no substantial issue is

raised by the motion or affidavits."    See Commonwealth v. Muniur

M., 467 Mass. 1010, 1011 (2014) (whether to conduct evidentiary

hearing requires consideration of "the seriousness of the issue

raised and the adequacy of the showing on that issue").       See

also Commonwealth v. Stewart, 383 Mass. at 257 ("the decision
                                                                    13


whether to decide the motion on the basis of affidavits or to

hear oral testimony . . . is left largely to the sound

discretion of the judge"); Commonwealth v. Coggins, 324 Mass.

552, 557, cert. denied, 338 U.S. 881 (1949) ("In accordance with

the practice in this Commonwealth motions for new trial in both

civil and criminal cases ordinarily are heard on the facts as

presented by affidavit").

    At the evidentiary hearing in this case, the defendant

called one witness and submitted several affidavits.    As noted,

the Commonwealth chose not to call any witnesses and submitted

no affidavits in support of its position opposing the allowance

of a new trial.   See Mass. R. Crim. P. 30 (c) (3) ("parties

opposing a motion may file and serve affidavits where

appropriate in support of their respective positions").

Following the hearing, the judge weighed all of the evidence

before him, and based his decision on the affidavits of the

defendant and his plea counsel, as well as on the context in

which the defendant had pleaded guilty.   It was not error for

the judge to rely on the affidavits in granting the defendant's

motion for a new trial, where, as here, those affidavits provide

a sufficient factual basis to support the ruling.   See

Commonwealth v. Stewart, 383 Mass. at 259; Commonwealth v.

Gordon, 82 Mass. App. Ct. 389, 395 (2012) (evidentiary hearing

may not be necessary "if the substantial issue raised is solely
                                                                14


a question of law, or if the facts are undisputed in the

record").

                                   Order vacating guilty plea
                                     and granting new trial
                                     affirmed.
