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12-P-1454                                                Appeals Court

                 COMMONWEALTH   vs.   BILLY BALTHAZAR.


                           No. 12-P-1454.

      Berkshire.        December 4, 2013. - October 3, 2014.

            Present:   Cypher, Kantrowitz, & Cohen, JJ.


Alien. Constitutional Law, Assistance of counsel, Plea.
     Practice, Criminal, Assistance of counsel, Plea, New trial.



     Complaints received and sworn to in the Northern Berkshire
Division of the District Court Department on April 11, 2008.

    A motion for a new trial was heard by Michael J. Ripps, J.


     Daniel J. Ciccariello for the defendant.
     John P. Bossé, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.     The defendant, Billy Balthazar, appeals from

the denial of his motion for a new trial in which he sought to

vacate guilty pleas that he entered in 2009, claiming that

counsel's failure to correctly advise him of the immigration

consequences of those pleas deprived him of his right to the

effective assistance of counsel under the Sixth Amendment to the
                                                                    2


United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.1   Although we agree that counsel's advice

did not satisfy the standards articulated in Padilla v.

Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), and

Commonwealth v. DeJesus, 468 Mass. 174, 178-182 (2014)

(DeJesus), we conclude that further proceedings are necessary to

determine whether counsel's deficient performance prejudiced the

defendant.   See id. at 182-183.   We therefore vacate the order

denying the defendant's motion for a new trial and remand for

further proceedings.2


     1
       After the defendant's appeal was entered in this court,
the United States Supreme Court issued its decision in Chaidez
v. United States, 133 S. Ct. 1103, 1105 (2013), which held that
the rule announced in Padilla v. Kentucky, 559 U.S. 356, 374
(2010), does not have retroactive effect. As that holding
conflicted with our Supreme Judicial Court's prior decision in
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011), and resolution
of that conflict would affect the outcome of the defendant's
claim, we stayed this appeal pending the Supreme Judicial
Court's decision in Commonwealth v. Sylvain, 466 Mass. 422, 423
(2013), as to whether it would continue to give Padilla
retroactive effect in light of Chaidez. We vacated the stay
after the Supreme Judicial Court issued its opinion in Sylvain,
concluding that it would continue to give Padilla retroactive
effect. See Commonwealth v. Sylvain, supra at 423-424 ("We
conclude, as a matter of Massachusetts law and consistent with
our authority as provided in Danforth v. Minnesota, 552 U.S.
264, 282 [2008] . . . , that the Sixth Amendment right
enunciated in Padilla was not a 'new' rule and, consequently,
defendants whose State law convictions were final after April 1,
1997, may attack their convictions collaterally on Padilla
grounds. We thus affirm our decision in Clarke"). Both parties
have filed a supplemental memorandum, addressing the effect of
Sylvain on the issues presented in the defendant's appeal.
     2
       The motion judge wrote a careful and well-reasoned
decision. DeJesus, supra, was not available at the time.
                                                                   3


     Background.   Following the defendant's arraignment on

multiple charges in April through June, 2008, he appeared in the

District Court on July 13, 2009, represented by counsel, for

final pretrial conferences.   After the Commonwealth amended

three charges from felonies to misdemeanors, and following a

plea colloquy, the defendant pleaded guilty to all the charges,

including the two charges at issue here.

     In a notice dated July 15, 2010, from the "U.S. Department

of Justice Immigration and Naturalization Service" (INS),3 the

defendant was informed that he was "subject to being taken into

custody and deported or removed from the United States pursuant

to . . . [8 U.S.C. § 1227](a)(2)(A)(ii)," based on his 2009

convictions of malicious destruction of property under $250,

G. L. c. 266, § 127, and larceny under $250, G. L. c. 266, § 30.

On February 27, 2012, the defendant filed a motion for a new

trial that sought to vacate his guilty pleas to these charges,

alleging that counsel failed to correctly advise him of the

immigration consequences of his pleas.   Following a

nonevidentiary hearing on March 20, 2012, a District Court judge

denied the defendant's motion and issued a written decision on

May 30, 2012.


     3
       Although the notice appears to be from the INS, that
entity was abolished in 2003 and its duties transferred to the
Department of Homeland Security. See Commonwealth v. Grannum,
457 Mass. 128, 130 n.5 (2010), and authorities cited.
                                                                       4


      Discussion.   1.   Standard of review.    The defendant argues

that the judge abused his discretion in denying the motion for a

new trial, asserting that counsel's ineffectiveness violated his

rights under Padilla, supra at 369, and Commonwealth v. Clarke,

460 Mass. 30, 47-48 (2011) (Clarke).       We review the denial of a

motion for a new trial for significant error of law or abuse of

discretion.   Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722

(2012).    Our review of a claim of ineffective assistance of

counsel follows the well-known test in Commonwealth v. Saferian,

366 Mass. 89, 96 (1974).4    As applied to the claim before us, the

defendant must show that counsel failed to adequately advise the

defendant of the immigration consequences of his pleas and, as a

result, the defendant was prejudiced.      See Clarke, supra at 45-

46.

      2.   Adequacy of counsel's advice.    In Padilla, 559 U.S. at

374, the United States Supreme Court held that "counsel must

inform [a] client whether [a] plea carries a risk of

deportation."5   See Commonwealth v. Sylvain, 466 Mass. 422, 436-

437 (2013) (indicating right to counsel's advice on deportation

consequences of guilty plea are coextensive under Sixth

      4
       "[I]f the Saferian test is met, the Federal test is
necessarily met as well." Clarke, supra at 45, quoting from
Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985).
     5
       Our Supreme Judicial Court has held that Padilla also
requires that counsel inform noncitizen clients that a
conviction at trial may have immigration consequences.
Commonwealth v. Marinho, 464 Mass. 115, 124 (2013).
                                                                       5


Amendment and art. 12).   The Supreme Court stated in Padilla

that "[w]hen the law is not succinct and straightforward . . . a

criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a risk

of adverse immigration consequences.     But when the deportation

consequence is truly clear, . . . the duty to give correct

advice is equally clear" (footnote omitted).     Padilla, supra at

369.   As to Padilla's case, the Supreme Court noted that it was

"not a hard case in which to find deficiency:    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 Padilla's conviction would not

result in removal] was incorrect."     Id. at 368-369.

       In DeJesus, our Supreme Judicial Court went further.     The

court concluded that advising a client that he was "eligible for

deportation" was not sufficient to convey the reality that

deportation would be "presumptively mandatory" or "practically

inevitable," where the immigration statute was "succinct, clear,

and explicit about the removal consequences for a noncitizen

defendant convicted of possession with intent to distribute

cocaine."   DeJesus, 468 Mass. at 180-181.    As a result, the

advice "fell below an objective standard of reasonableness,"

satisfying the first prong of the test for ineffective

assistance under both the Federal and State tests.       Id. at 182.
                                                                    6


     Here, the question is whether it was sufficiently clear

that the misdemeanor crimes of malicious destruction of property

under $250, in violation of G. L. c. 266, § 127, and larceny

under $250, in violation of G. L. c. 266, § 30, were crimes

involving moral turpitude that would bring the defendant within

the parameters of 8 U.S.C. § 1227(a)(2)(A)(ii) (2006),6 governing

deportation and, if so, whether counsel's recommendation that

the defendant seek the advice of an immigration lawyer fell

below an objective standard of reasonableness.

         The motion judge, who also was the plea judge, began his

determination of whether plea counsel's conduct had been

deficient by considering affidavits submitted by plea counsel

and the defendant.     The judge did not conduct an evidentiary

hearing.     The judge credited plea counsel's affidavit,7 which



     6
       As previously indicated, the defendant's notice from the
INS states that the defendant is subject to removal pursuant to
8 U.S.C. § 1227(a)(2)(A)(ii). That statutory provision, in
pertinent part, states: "Any alien . . . in and admitted to the
United States shall, upon the order of the Attorney General, be
removed if the alien . . . at any time after admission is
convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct,
regardless of whether confined therefor and regardless of
whether the convictions were in a single trial."
     7
       The defendant filed a motion below to strike counsel's
affidavit, principally on the ground that it contained the
"unauthorized disclosure of confidential communications." The
judge denied the motion, ruling that because the defendant had
asserted counsel was ineffective, counsel was permitted by
Mass.R.Prof.C. 1.6(b)(2), 426 Mass. 1322 (1998), to reveal
confidences reasonably necessary to establish a defense in that
                                                                   7


stated that counsel advised the defendant at their first meeting

and other times that there may be immigration consequences and

urged the defendant, as well as members of his family, to obtain

the services of an immigration lawyer.   Plea counsel also

averred that the defendant refused to seek advice from an

immigration lawyer and insisted on going forward with the pleas

if their dispositions did not involve incarceration.8

     Having unsuccessfully urged the defendant to seek advice

from an immigration lawyer, counsel informed the judge prior to

the plea colloquy that he had sought through plea bargaining to

avoid adverse immigration consequences, and presented the

following rationale to the judge:

     "[T]he Commonwealth has agreed to reduce certain felonies
     to misdemeanors so that they won't affect [the defendant's]
     opportunity to be able to stay in this country as a
     permanent resident. . . . I don't think the misdemeanors
     create any problem for him, we'll just have to wait and
     see, but he certainly has a better shot than a continuance
     without a finding on a felony where he has to acknowledge
     that there's sufficient facts for the court to find him
     guilty."9



controversy. Contrary to the defendant's claim on appeal, the
judge properly denied the motion.
     8
       Counsel averred that the defendant "informed [him] that
[the defendant] had prior criminal matters in the United States
and that he was knowledgeable with respect to the potential
immigration problems and consequences."
     9
       A transcript of this hearing has not been included in the
record, but neither party challenges the quotation and, although
the defendant's brief contains the same quotation with some
textual differences, those differences are inconsequential.
                                                                    8


     Although 8 U.S.C. § 1227(a)(2) enumerates categories of

criminal offenses and, in some instances, identifies crimes for

which aliens may be deported, it does not identify specific

crimes involving moral turpitude.   The defendant's memorandum in

support of his motion for a new trial cited authorities that

indicate larceny and malicious destruction of property are

crimes involving moral turpitude and, based on the existence of

these authorities, argued that plea counsel should have known

that pleading guilty to those crimes would subject the defendant

to deportation.10   As legal research would have indicated that

the crimes were ones involving moral turpitude, we must

conclude, notwithstanding the motion judge's thoughtful

consideration of Justice Alito’s observations in his concurrence

in Padilla, 559 U.S. at 375-388, that counsel's failure to

inform the defendant that pleading guilty to the charges would




     10
       See, e.g., Tillinghast v. Edmead, 31 F.2d 81, 83 (1st
Cir. 1929) (concluding larceny is crime involving moral
turpitude), and Matter of C, 2 I. & N. Dec. 716, 719 (B.I.A.
1947) (suggesting malicious destruction of property is crime
involving moral turpitude). But see Da Silva Neto v. Holder,
680 F.3d 25, 30 (1st Cir. 2012) (noting court has "no case law
directly on point to guide" its review of whether malicious
destruction of property under Massachusetts law is crime
involving moral turpitude). We also note that secondary
sources, such as Kesselbrenner & Wayne, Defending Immigrants
Partnership, Selected Immigration Consequences of Certain
Massachusetts Offenses 11, 12 (2006), were available to plea
counsel in Massachusetts and would have provided additional
guidance.
                                                                   9


subject him to presumptively mandatory deportation fell below an

objective standard of reasonableness.11

     3.   Prejudice to defendant.   Although the motion judge

concluded that plea counsel's advice was not deficient, he

nevertheless considered the second prong of the Saferian test,

whether the defendant was prejudiced by counsel's

representation.   To demonstrate prejudice, the defendant must

"prove that it would have been a rational decision on his part

to reject the government's plea bargain and proceed to trial."

Commonwealth v. Chleikh, 82 Mass. App. Ct. at 725.

"Specifically, . . . a defendant has the 'substantial burden' of

proving (1) that he had a substantial defense available to him;

(2) that there was a reasonable probability that he could have

negotiated a different plea bargain; or (3) that the presence of

special circumstances support the conclusion that he would have

placed additional emphasis on immigration consequences in

     11
       The motion judge observed: "Justice Alito, in his
concurrence in Padilla, in which the Chief Justice joined,
suggests that because of the vagaries of immigration law, courts
will have difficulty in determining whether an attorney has or
has not given effective advice of counsel about immigration
consequences. Justice Alito notes that, 'providing advice on
whether a conviction for a particular offense will make an alien
removable is often quite complex' because '[m]ost crimes
affecting immigration status are not specifically mentioned
. . . , but instead fall under a broad category of crimes, such
as crimes involving moral turpitude or aggravated felonies.'
Padilla, supra at [377-378], quoting M. Garcia & L. Eig, CRS
Report for Congress, Immigration Consequences of Criminal
Activity (Sept. 20, 2006) (summary) [emphasis in original]."
                                                                    10


deciding whether to plead guilty."     Id. at 725-726, citing

Clarke, 460 Mass. at 47-48.

    As to the first factor, the defendant averred that "[h]ad

[he] known that . . . larceny and [malicious] destruction of

property . . . [were] crimes upon which deportation could be

based, [he] would not have pled guilty, instead [he] would have

gone to trial as [he] thought that [he] had meritorious

defenses."   In fact, the motion judge noted, and the

Commonwealth appeared to agree, that the defendant had a viable

defense to the malicious destruction of property charge.        On the

larceny charge, the defendant was found in possession of a trash

barrel removed from the premises where his former wife was

residing.    The defendant claimed that he had borrowed it to

collect leaves, and he may have been able to defend the larceny

charge on that ground.

    As to the second factor used to prove prejudice, i.e.,

whether there was a reasonable probability that the defendant

could have negotiated different pleas, it is evident that

counsel made great efforts to obtain a plea arrangement that

would enable the defendant to avoid deportation, and the

Commonwealth apparently was willing to structure the pleas to

meet that objective.     Had counsel been aware that two of the

charges were crimes involving moral turpitude, he may have been
                                                                  11


able to negotiate an arrangement whereby these two especially

problematic charges were avoided.

    As to the final factor, whether there were special

circumstances that indicated the defendant would have placed

emphasis on the immigration consequences when deciding whether

to plead guilty, the defendant's affidavit states that he was a

permanent resident of the United States, that he had come to the

United States from Haiti in 1996, that he is a licensed aircraft

mechanic and had worked numerous other jobs in the United

States, and that all of his family lived in the United States

and Canada.

    In light of the above showing on the three factors used to

prove prejudice, we conclude that the defendant has raised a

substantial issue necessitating an evidentiary hearing.   See

Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014)

(noting that where substantial issue arises from submitted

affidavits, better practice is to conduct evidentiary hearing).

Further inquiry is required to determine whether, had the

defendant been properly advised of the consequences of pleading

guilty to the two crimes involving moral turpitude, he would

have opted to "roll the dice" and proceed to trial, despite the

risk of incarceration, to avoid near certain deportation.

    Conclusion.   Under the evolving case law in this area, the

defendant has demonstrated that counsel's advice was
                                                                12


constitutionally deficient and raised a substantial issue as to

prejudice.   Accordingly, he is entitled to an evidentiary

hearing.   We vacate the order denying the defendant's motion for

a new trial and remand the case to the District Court for

further proceedings consistent with this opinion.

                                    So ordered.
