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16-P-0039                                              Appeals Court

                 COMMONWEALTH   vs.   CHRIST O. LYS.


                            No. 16-P-39.

         Middlesex.      December 8, 2016. - June 28, 2017.

              Present:   Green, Agnes, & Desmond, JJ.


Controlled Substances. Practice, Criminal, New trial, Plea,
     Affidavit, Assistance of counsel. Constitutional Law,
     Plea, Assistance of counsel. Due Process of Law, Plea,
     Assistance of counsel. Alien.


     Complaint received and sworn to in the Marlborough Division
of the District Court Department on January 13, 2012.

     A motion for a new trial was heard by Robert G. Harbour, J.


     Patrick Long for the defendant.
     KerryAnne Kilcoyne, Assistant District Attorney, for the
Commonwealth.


     AGNES, J.   The defendant, Christ Lys, appeals from a

decision by a judge of the District Court, following a non-

evidentiary hearing, to deny his motion for a new trial. 1     The



     1
       The record indicates and the Commonwealth does not dispute
that deportation proceedings against the defendant have
                                                                    2


defendant maintains that his attorney was ineffective because he

did not inform the defendant that he would be deported as a

consequence of pleading guilty.   The judge reasoned that

although adequate advice from plea counsel was lacking, thus

satisfying the first prong of the familiar two-part test for

ineffective assistance of counsel, see Commonwealth v. Saferian,

366 Mass. 89 (1974) (Saferian), the defendant was not entitled

to relief because he failed to establish that he was prejudiced

by the shortcomings of his attorney.   Although we affirm, we

take this opportunity to clarify what framework a judge should

apply when faced with a defendant's affidavit that is not

accompanied by an affidavit of his trial counsel.

     Background.   On January 13, 2012, the defendant was charged

in a twenty-eight count complaint with three counts of

distribution of a class D substance (marijuana) in violation of

G. L. c. 94C, § 32C(a); four counts of distribution of a drug

within one thousand feet of a school, in violation of G. L.

c. 94C, § 32J; two counts of possession of a class B substance

(cocaine), in violation of G. L. c. 94C, § 34; two counts of

distribution of a class B substance (cocaine), in violation of

G. L. c. 94C, § 32A (c); two counts of conspiracy to violate

controlled substances laws, in violation of G. L. c. 274, § 7;



commenced.   See Commonwealth v. Valdez, 475 Mass. 178, 184
(2016).
                                                                    3


and fifteen counts of attempting to distribute cocaine and

marijuana, in violation of G. L. c. 274, § 6.   On October 30,

2012, the defendant pleaded guilty to three counts of marijuana

distribution, two counts of cocaine distribution, two counts of

conspiracy, and fifteen counts of attempting to distribute

controlled substances.   The remaining charges were either

dismissed or nolle prossed by the prosecutor.   The defendant was

sentenced to eighteen months in a house of correction and two

years of probation from and after the service of the committed

portion of the sentence.

     The defendant is a lawful permanent resident of the United

States who emigrated to the United States from Haiti when he was

seven years old.   He filed a motion for a new trial, pursuant to

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

accompanied by a supplemental affidavit.   On June 8, 2015, the

motion judge, who was also the plea judge, held a non-

evidentiary hearing on the motion.   On June 15, 2015, the judge

credited the statement made by the defendant in his affidavit

that he was not advised at the time of his plea that the plea

carried with it mandatory deportation consequences. 2   The


     2
       Pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (2012), "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, . . . other than a single offense
involving possession for one's own use of 30 grams or less of
marijuana, is deportable." "After the 1996 effective date of
                                                                      4


Commonwealth does not take issue with the judge's determination

that the defendant was not properly advised of the deportation

consequences of his plea by his trial counsel.     However, the

judge denied the motion on the grounds that the defendant failed

to make a sufficient showing of prejudice.

     Discussion.    1.   Standard of review.   Under Mass.R.Crim.P.

30(b), the judge "may grant a new trial at any time if it

appears that justice may not have been done."     In most cases,

the decision whether to grant a motion under rule 30(b) cannot

be reduced to hard and fast rules, but instead calls for the

exercise of sound judicial discretion.    See Commonwealth

v. Almonte, 84 Mass. App. Ct. 735, 737-738 (2014) (Almonte).       We

review the decision on such a motion to determine whether the

motion judge "committed an abuse of discretion or a significant

error of law."     Commonwealth v. DeJesus, 468 Mass. 174, 178

(2014) (DeJesus).    See also Commonwealth v. Cano, 87 Mass. App.

Ct. 238, 240 (2015) (Cano).     Generally, we show special

deference to the judge's decision on a motion for a new trial

when that judge also was the plea or trial judge.

See Commonwealth v. Grace, 397 Mass. 303, 307 (1986),


amendments to the 1952 Immigration and Nationality Act, . . .
'if a noncitizen has committed a removable offense . . . his
removal is practically inevitable,' subject to limited
exceptions." Commonwealth v. DeJesus, 468 Mass. 174, 180
(2014), quoting from Padilla v. Kentucky, 559 U.S. 356, 363–364
(2010). See also Commonwealth v. Clarke, 460 Mass. 30, 46
(2011).
                                                                    5


citing Commonwealth v. De Christoforo, 360 Mass. 531, 543

(1971).   See also Commonwealth v. Spray, 467 Mass. 456, 472

(2014).

     2. Ineffective assistance of counsel.    In order to prevail

on a motion for a new trial based on a claim of ineffective

assistance of counsel, the defendant must demonstrate that (1)

defense counsel's conduct fell "measurably below that which

might be expected from an ordinary fallible lawyer" (performance

prong), and (2) he was prejudiced by counsel's conduct in that

it "likely deprived the defendant of an otherwise available,

substantial ground of defence" (prejudice

prong).   Saferian, supra at 96.   See Commonwealth v. Millien,

474 Mass. 417, 430 (2016); Commonwealth v. Henry, 88 Mass. App.

Ct. 446, 452 (2015) (Henry).

     a.   Performance prong.   When, as in this case, the

consequence of a guilty finding is almost certain deportation,

see note 2, supra, and that consequence can be "easily

determined" by reference to "succinct, clear, and explicit"

statutory language, Padilla v. Kentucky, 559 U.S. 356, 368

(2010), counsel's failure to inform the defendant of the

immigration consequences of his plea is a violation of counsel's

duty under both the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights, see Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013)
                                                                    6


(Sylvain I), and satisfies the requirements of the performance

prong under Saferian.   Commonwealth v. Marinho, 464 Mass. 115,

124-126 (2013); Henry, supra at 452-455.     See

also DeJesus, supra at 182. 3

     In the present case, the judge stated that he felt

"required" to give "full credit" to the defendant's affidavit in

which he states that plea counsel did not advise him of

potential immigration consequences, in the absence of an

affidavit by plea counsel to the contrary.    The Commonwealth

does not challenge the judge's finding that the defendant was

not advised of the immigration consequences of his plea.    While

we will accept this finding as valid for purposes of our

analysis, we think it is appropriate to comment on the procedure

that judges should follow when presented with an ineffective

assistance of counsel claim based on a claim that defense

counsel gave the defendant inaccurate advice about the

immigration consequences of the plea.

     Contrary to the view expressed by the judge below, in the

absence of an affidavit or testimony by defendant's plea counsel

     3
       The transcript of the defendant's plea hearing indicates
that, before accepting the defendant's plea, the judge
administered the alien warning required by G. L. c. 278, § 29D.
Even if defense counsel also gave the defendant the same warning
prior to the plea, it "is not an adequate substitute for defense
counsel's professional obligation to advise her client of the
likelihood of specific and dire immigration consequences that
might arise from such a plea." Henry, supra at 454, quoting
from Clarke, 460 Mass. at 48 n.20.
                                                                     7


(and absent an explanation why such evidence is not available),

the law does not require the judge to credit the affidavit

submitted by the defendant.   When a motion for a new trial is

based on facts that are not apparent from the face of the

record, the defendant has the burden of proving such facts.

See Commonwealth v. Bernier, 359 Mass. 13, 15-16

(1971); Commonwealth v. Murphy, 442 Mass. 485, 503 (2004).     See

also Commonwealth v. Lopez, 426 Mass. 657, 662-664 (1998)

(explaining effect of "presumption of regularity" on defendant's

burden of proof under rule 30[b]).   Initially, in a fact-bound

case such as this, the defendant submits an affidavit or

affidavits in order to demonstrate that the motion presents a

"substantial issue."   Mass.R.Crim.P. 30(c)(3), as appearing in

435 Mass. 1501 (2001).   In determining whether a motion for a

new trial warrants an evidentiary hearing, both the seriousness

of the issue itself and the adequacy of the defendant's showing

on that issue must be considered.    Commonwealth v. Stewart, 383

Mass. 253, 257-258 (1981); Commonwealth v. Sullivan, 435 Mass.

722, 733-734 (2002).   "A claim of ineffective assistance of

counsel . . . raises 'an issue of constitutional importance'

that readily qualifies as a serious issue."   Commonwealth

v. Denis, 442 Mass. 617, 629 (2004) (Denis), quoting

from Commonwealth v. Licata, 412 Mass. 654, 661 (1992).

However, although an ineffectiveness claim is a "serious issue,"
                                                                   8


whether such a claim rises to the level of a "substantial issue"

under rule 30(c)(3) requires the judge to focus on the adequacy

of the showing made with respect to that serious issue.

"Although the motions and supporting materials filed by a

defendant need not prove the issue raised therein, they must at

least contain sufficient credible information to cast doubt on

the issue."   Denis, supra at 629.

     Contrary to the view expressed by the motion judge, the

absence of an affidavit from the defendant's plea counsel

without an explanation why such an affidavit could not be

obtained is a negative factor in the assessment of the

credibility of the affidavit submitted by the defendant.    See,

e.g., Cano, 87 Mass. App. Ct. at 244 & n.12. 4   See

also Commonwealth v. Chatman, 10 Mass. App. Ct. 228, 231 (1980)

(defendant's unexplained failure to produce trial counsel at

reconstruction hearing indicated to the court that defendant's


     4
       In Cano, supra at 244, we stated that "the only evidence
that counsel's advice was constitutionally deficient is an
assertion in the defendant's affidavit that counsel 'did not
tell [him] that if [he] pleaded guilty . . . he could be
deported.' Given 'the suspicious failure to provide pertinent
information from [plea counsel,] an expected and available
source,' and that the only evidence that plea counsel provided
constitutionally deficient advice is from the defendant himself,
whose credibility is undermined by self-interest, we discern no
error of law or abuse of discretion in the judge's conclusion
that the motion did not raise a substantial issue warranting an
evidentiary hearing or a new trial" (citations and footnote
omitted).
                                                                     9


motion had no substance); Commonwealth v. Martinez, 86 Mass.

App. Ct. 545, 550-551 (2014). 5   In the present case, the judge

reasoned that the defendant's factual claim that he was not

informed of the immigration consequences of pleading guilty was

true simply because there was no countervailing affidavit

submitted by defendant's plea counsel.    The judge, instead,

should have made an independent assessment whether the

defendant's affidavit was sufficiently credible to "cast doubt"

on whether he had been properly advised of the immigration

consequences of his plea.   Denis, supra at 629.   If the judge

regarded the defendant's affidavit as sufficiently credible,

unless the Commonwealth stipulated to that fact or conceded the

point, the judge should have conducted an evidentiary hearing

and made appropriate findings of fact.    See Mass.R.Crim.P. 30(b)

("the trial judge shall make such findings of fact as are

necessary to resolve the defendant's allegations of error of

law").   See also Commonwealth v. Bertrand, 385 Mass. 356, 364-

365 (1982).   A judge should not credit factual statements in a

defendant's affidavit, over the Commonwealth's objection,

without giving the Commonwealth an opportunity to present

evidence to the contrary.   Observance of this practice ensures


     5
       Although the judge in his decision makes reference to a
second affidavit filed by the defendant's appellate counsel that
supports the defendant's claim, there is no such affidavit in
the record before us.
                                                                     10


fairness to the Commonwealth by giving it an opportunity to

oppose the defendant's motion.     See Almonte, 84 Mass. App. Ct.

at 739.

     b.   Prejudice prong.    In order to meet the requirements of

the second prong of the Saferian test (prejudice), the defendant

must prove 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."     Commonwealth v. Clarke, 460

Mass. 30, 47 (2011) (Clarke), quoting from Hill v. Lockhart, 474

U.S. 52, 59 (1985).   See Commonwealth v. Nguyen, 89 Mass. App.

Ct. 904, 905 n.2 (2016).     To demonstrate the existence of this

state of affairs, the defendant must establish that at least one

of the following three conditions existed at the time of his

change of plea:   "(1) [that] he had an 'available, substantial

ground of defence,' Saferian, [366 Mass.] at 96, 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 that 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
                                                                    11


omitted).   Clarke, supra at 47-48, quoting Hill, supra at 60.

See Henry, 88 Mass. App. Ct. at 455.

     i.   Substantial ground of defense.   The defendant contends

that his plea counsel failed to investigate two lines of

defense, neither of which we conclude meets the test of

substantiality under the first prong of the prejudice analysis.

First, the defendant argues that the failure to investigate the

confidential informant's identity constitutes ineffective

assistance.   This argument lacks merit as the defendant sold the

narcotics to an undercover officer, not the confidential

informant, and other officers witnessed the transactions.

See Commonwealth v. Connolly, 454 Mass. 808, 828 (2009)

(rejecting defendant's request to identify confidential

informant when "[t]he informant was not a percipient witness to

the charged crimes" after undercover officer made controlled

purchases).

     Second, the defendant contends that plea counsel was

ineffective because he failed to contest the drug test results

for the recovered narcotics in the wake of the scandal at the

William A. Hinton State Laboratory Institute (Hinton lab).

See Commonwealth v. Scott, 467 Mass. 336, 337-338 (2014)

(outlining timeline of Hinton lab scandal).   This argument is

also without merit because it is based on speculation that there

was tampering or impropriety with the tested narcotics.
                                                                   12


Furthermore, the narcotics recovered from the defendant were

tested neither at the Hinton lab nor at the time Annie Dookhan

was acting as a chemist there.   See Commonwealth v. Duran, 435

Mass. 97, 103 (2001) ("Speculation, without more, is not a

sufficient basis to establish ineffective

representation"); Commonwealth v. Ferreira, 67 Mass. App. Ct.

109, 116-117 (2006).

     ii.   More favorable plea agreement.   The defendant also

argues that his plea counsel's representation met the

second Saferian prong of prejudice because plea counsel failed

to advocate for a different plea agreement that did not carry

the same immigration consequences.   The defendant has failed to

demonstrate, beyond a speculative claim, that counsel had any

reasonable prospect of achieving an agreement with the

Commonwealth that would have resulted in a sentence that would

have avoided deportation consequences.   See Commonwealth

v. Chleikh, 82 Mass. App. Ct. 718, 727 (2012) (Chleikh).

Cf. Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 600 (2012)

(Martinez) (concluding that defendant's affidavits supported

finding that it was reasonably probable to negotiate different

plea agreement); Commonwealth v. Gordon, 82 Mass. App. Ct. 389,

400-01 (2012).   Furthermore, the motion judge credited the
                                                                     13


Commonwealth's statements that there would have been no changes

to the plea agreement offered. 6

     iii.   Special circumstances.    The defendant's final

argument relies on the Supreme Judicial Court's decision

in Commonwealth v. Lavrinenko, 473 Mass. 42 (2015).     The

defendant's supplemental affidavit in support of his motion for

a new trial was filed in 2015.     In it, the defendant identifies

the following considerations that he contends qualify as

"special circumstances":   (1) a recent diagnosis of mental

health problems, (2) limited Creole and French language skills,

(3) a history of abuse as a child by his father, and (4) the

fact that his only immediate family (mother and brother) died in

the devastating earthquake that struck Haiti in 2010.    The

defendant did not submit any further affidavits or documentation

of the factual statements set forth in his affidavit.    The court

did not find that any of these circumstances rose to the level

of special circumstances, or were substantial enough to warrant

an evidentiary hearing.    Clearly, the defendant's recent mental

health diagnosis was not a circumstance in existence at the time

of his guilty plea and thus cannot be considered a special

     6
       The Commonwealth's case was strong. The record indicates
that the defendant sold drugs to an undercover police officer on
five separate occasions, and on four of those occasions the
transaction occurred in a school zone. Moreover, the defendant
made numerous attempts to sell additional quantities of
marijuana and cocaine to the officer by repeatedly sending text
messages to that effect.
                                                                  14


circumstance.   Compare Commonwealth v. Sylvain, 473 Mass. 832,

836-837 (Sylvain II).   While it would have been preferable for

the judge to explain whether his reasoning was based either on a

decision not to credit the remainder of the defendant's factual

statements, 7 or because, even if true, they were not sufficiently

"special" to meet the defendant's burden of proof, we discern no

abuse of his discretion or error of law.

     In other cases in which "special circumstances" were found

to exist, the court identified specific connections between the

defendant and family members residing here in the United States,

specific connections between the defendant and his local

community, or a specific condition that the defendant suffered

from at the time of his plea that would make his return to his

native country extremely difficult.   See DeJesus, 468 Mass. at

183-184 (special circumstances existed where defendant

demonstrated strong family and employment ties in

Boston); Lavrinenko, 473 Mass. at 60-61 (refugee status is

"special" circumstance such that not considering it when

determining whether prejudice occurred is error); Cano, 87 Mass.

App. Ct. at 241-244 (report by licensed psychologist concerning


     7
       "Clearly, a judge is not required to credit statements in
a defendant's affidavit that the defendant placed special
emphasis on immigration consequences because of his
circumstances; a judge could find those statements to be 'merely
self-serving.'" Sylvian II, 473 Mass. at 837, quoting from
Sylvain I, 466 Mass. at 439.
                                                                   15


defendant's significant cognitive limitations and extreme

difficulties he would face if he were returned to Colombia

raised substantial question and called for evidentiary

hearing); Henry, 88 Mass. App. Ct. at 456 (case remanded for

further findings based on evidence that defendant's children and

grandchildren lived in United States);.   See also Martinez, 86

Mass. App. Ct. at 553 (remanding case to enable judge to

determine whether special circumstances exist based on

defendant's residency in United States since early childhood,

his employment, and fact that he has family, including common-

law wife and three children, who are all United States

citizens).   Contrast Chleikh, 82 Mass. App. Ct. at 728 (no

special circumstances found where defendant's affidavit stated

only that he had moved to United States eight years prior, and

made no reference to any family or community ties).   Apart from

his statement that he has a "community of friends" in the United

States and "desire[s] to make a life" here, the defendant has

not identified any employment history, family relationships or

other personal circumstances that existed at the time of his

plea that would have explained why he would choose to go to

trial despite the strong case prepared by the Commonwealth.

                                    Order denying motion for a
                                     new trial affirmed.
