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SJC-12476

                  COMMONWEALTH   vs.   CHRIST O. LYS.



     Middlesex.       September 5, 2018. - November 19, 2018.

    Present:   Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.


Controlled Substances. Practice, Criminal, Plea, Assistance of
     counsel, New trial. 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 18, 2012.

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

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Patrick N. Long for the defendant.
     Gabriel Pell, Assistant District Attorney, for the
Commonwealth.
     John P. Zanini, Assistant District Attorney, for District
Attorney for the Berkshire District & others, amici curiae,
submitted a brief.


    LOWY, J.   The defendant pleaded guilty in the District

Court to violating multiple controlled substances laws.   He was
                                                                      2


a lawful permanent resident who had emigrated from Haiti, and

his plea rendered him deportable.1    The Federal government

detained the defendant and initiated deportation proceedings

against him.   The defendant then filed a motion for a new trial

pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.

1501 (2001), arguing that he had received ineffective assistance

of counsel.    The defendant claimed, inter alia, that he would

not have pleaded guilty if his counsel had properly advised him

about the plea's immigration consequences.     The motion judge,

who was also the plea judge, denied the motion after a

nonevidentiary hearing.     The defendant appealed, and the Appeals

Court affirmed.     Commonwealth v. Lys, 91 Mass. App. Ct. 718, 726

(2017).   We allowed the defendant's application for further

appellate review.

     In his written decision, the judge found that plea

counsel's performance was constitutionally deficient but that

the deficient performance did not prejudice the defendant.     The

Commonwealth now contends that the judge's finding of deficient




     1 The defendant was deportable under 8 U.S.C.
§ 1227(a)(2)(B)(i) (2012) (making aliens convicted of
most controlled substances laws deportable) and 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012) (making aliens convicted of
"aggravated felony" deportable). See Commonwealth v. Clarke,
460 Mass. 30, 32 n.2, 46 (2011). His aggravated felony
conviction also precluded him from applying to the United States
Attorney General for relief. See 8 U.S.C. § 1229b(a)(3) (2012).
                                                                     3


performance was erroneous.2     The defendant contends that the

judge erroneously found a lack of prejudice.     We do not reach

the merits of either issue.     Rather, we conclude that the judge

(1) might have failed to recognize his discretion to credit or

discredit the defendant's affidavits as they pertained to plea

counsel's allegedly deficient performance, even in the absence

of an affidavit from plea counsel; and (2) failed to make

factual findings about whether special circumstances relevant to

the prejudice inquiry existed.     Therefore, we vacate the denial

of the motion for a new trial and remand the case to the

District Court for proceedings consistent with this opinion.3

     Background.   1.   Plea.   According to the prosecutor's

summary of the Commonwealth's allegations at the plea hearing

and other undisputed record materials, the defendant sold

marijuana and cocaine to an undercover police officer on various

occasions, often in a school zone; he offered to sell marijuana




     2 Although the Commonwealth contests the judge's finding of
deficiency before this court, it did not contest that finding
before the Appeals Court. The defendant argues that we should,
therefore, not consider the issue. We disagree. Although the
Appeals Court accepted the judge's deficiency finding "for
purposes of [its] analysis," the court critiqued the judge's
reasoning. Commonwealth v. Lys, 91 Mass. App. Ct. 718, 721
(2017). Because the deficiency finding "was considered in the
Appeals Court, we will address the matter" (citation omitted).
Commonwealth v. Sepheus, 468 Mass. 160, 171 (2014).

     3 We acknowledge the amicus brief submitted by several
district attorneys.
                                                                  4


and cocaine to the same undercover officer multiple times; and

he conspired to violate controlled substances laws when he

distributed the cocaine.

    The defendant faced a twenty-eight-count complaint.      He

ultimately pleaded guilty to three counts of distributing

marijuana, G. L. c. 94C, § 32C (a); two counts of distributing

cocaine, G. L. c. 94C, § 32A (a), as amended through St. 2010,

c. 256, § 68; two counts of conspiring to violate controlled

substances laws, G. L. c. 274, § 7; thirteen counts of

attempting to distribute a class D substance, G. L. c. 274, § 6;

and two counts of attempting to distribute a class B substance,

G. L. c. 274, § 6.   The judge sentenced the defendant to

eighteen months in a house of correction and a term of

probation.

    As part of the plea, the Commonwealth entered nolle

prosequis with respect to four counts of violating a controlled

substances law near a school, G. L. c. 94C, § 32J, as amended

through St. 2010, c. 256, § 72; and dismissed two counts of

possessing cocaine, G. L. c. 94C, § 34, as amended through St.

2008, c. 387, § 5.   Each school zone charge would have carried a

mandatory minimum sentence of two years in a jail or house of

correction, from and after the defendant's sentences on the

underlying drug crimes.
                                                                    5


     2.   Motion for new trial.   The defendant filed two

affidavits in support of his motion for a new trial, both of

which stated that plea counsel had not warned him about the

plea's immigration consequences.   Neither plea counsel nor

motion counsel submitted affidavits.4   The judge observed in his

decision that plea counsel did not testify or provide an

affidavit and declared that, "[f]aced with this paucity of

factual information," "the [c]ourt feels strongly that it must

give the [d]efendant's and his [motion] [a]ttorney's

[a]ffidavits full credit."5   Accordingly, the judge found that

plea counsel had performed deficiently.    But the judge went on

to find that this deficient performance did not prejudice the

defendant.   Without making any factual findings, he concluded

that "the court does not find the presence of any special

circumstances" suggesting that the defendant would have placed

particular emphasis on immigration consequences when deciding

whether to plead guilty.




     4  At the nonevidentiary motion hearing, motion counsel
provided unsworn testimony that she had asked plea counsel to
testify or aver as to whether he had discussed the plea's
immigration consequences with the defendant. According to
motion counsel, plea counsel refused her request.

     5 There is no affidavit from the defendant's motion attorney
in the record. The term "Attorney's Affidavit[]" in the judge's
decision likely refers to the defendant's supplemental
affidavit.
                                                                    6


     Discussion.   A motion for a new trial may be granted "if it

appears that justice may not have been done."    Mass. R. Crim. P.

30 (b).   We examine the granting or denial of a new trial motion

"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).   We extend "substantial deference" to a

motion judge who was also the plea judge.    Commonwealth v.

Sylvain, 473 Mass. 832, 835 (2016), quoting Commonwealth v.

Grant, 426 Mass. 667, 672 (1998), S.C., 440 Mass. 1001 (2003).

     1.   Performance.   "Both art. 12 of the Declaration of

Rights of the Massachusetts Constitution and the Sixth Amendment

to the United States Constitution guarantee a right to the

effective assistance of counsel."    Commonwealth v. Lykus, 406

Mass. 135, 138 (1989).   To provide effective representation

under the Sixth Amendment, counsel must advise his or her

clients about a guilty plea's "truly clear" deportation

consequences.6   Padilla v. Kentucky, 559 U.S. 356, 369, 374

(2010).   See Commonwealth v. Sylvain, 466 Mass. 422, 424 (2013)




     6 The defendant here brings a claim for ineffective
assistance under only the Sixth Amendment to the United States
Constitution. Because we find that remand is necessary under
either the Sixth Amendment or art. 12 of the Massachusetts
Declaration of Rights, we once again "leave open the question of
what differences, if any, exist between the two standards."
Commonwealth v. Fuller, 394 Mass. 251, 256 n.3 (1985).
                                                                      7


(Sylvain I), S.C., 473 Mass. 832 (2016) (applying same rule

under art. 12).   "Here, as in Padilla, the consequences of the

defendant's plea were clear."    Commonwealth v. Clarke, 460 Mass.

30, 46 (2011).    See Commonwealth v. DeJesus, 468 Mass. 174, 180-

181 (2014).

    The judge found that the performance of the defendant's

plea counsel was constitutionally deficient because plea counsel

did not explain the plea's immigration consequences to the

defendant.    We do not review this decision's merits.    Instead,

we remand because the judge might not have recognized his

discretion to credit or discredit the defendant's affidavits,

even in the absence of an affidavit from plea counsel.       See

Commonwealth v. Lydon, 477 Mass. 1013, 1015 (2017) (remanding

when "judge did not recognize his discretionary authority");

Commonwealth v. Harris, 443 Mass. 714, 728, 733 (2005)

(remanding when judge "declin[ed] to exercise any discretion").

    Under Mass. R. Crim. P. 30 (c) (3), as appearing in 435

Mass. 1501 (2001), a judge hearing a motion for a new trial must

first decide whether the defendant's motion and affidavits

present a "substantial issue."    In making this determination, a

motion judge need not accept statements in the defendant's

affidavits as true, even if the statements are undisputed.

Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015).       Instead, a

motion judge should consider "both the seriousness of the issue
                                                                     8


itself and the adequacy of the defendant's showing on that

issue."   Commonwealth v. Denis, 442 Mass. 617, 628 (2004).

Although a defendant's motion and affidavits "need not prove the

issue raised," to be adequate "they must at least contain

sufficient credible information to cast doubt on the issue."

Id. at 629.

       If a motion judge finds that the motion and affidavits do

not present a substantial issue, then "[t]he judge may rule on a

motion for a new trial without an evidentiary hearing."     Id. at

628.   If a motion judge finds that they do present a substantial

issue, then the judge must hold an evidentiary hearing.     Vaughn,

471 Mass. at 404, quoting Commonwealth v. Chatman, 466 Mass.

327, 334 (2013), S.C., 473 Mass. 840 (2016) ("Only when the

motion and affidavits raise a 'substantial issue' is an

evidentiary hearing required").    Commonwealth v. Stewart, 383

Mass. 253, 257 (1981) (stating that if defendant's newly

discovered evidence raises substantial issue, then "he is

entitled to an evidentiary hearing").

       Here, the defendant claimed in his affidavits that his plea

counsel did not explain to him the plea's immigration

consequences.   "A claim of ineffective assistance of counsel

. . . readily qualifies as a serious issue."    Denis, 442 Mass.

at 629.   The judge, therefore, needed to consider only the

adequacy of the defendant's assertions when deciding whether the
                                                                     9


defendant had raised a substantial issue.    It is unclear whether

he did so.    After stating that plea counsel did not provide an

affidavit or testify, the judge concluded that he "fe[lt]

strongly that [he] must give the [d]efendant's and his [motion]

[a]ttorney's [a]ffidavits full credit."

     A motion judge may consider the absence of an affidavit

from allegedly ineffective counsel in the adequacy analysis.

But this failure need not create an inference that the

defendant's affidavit must be credited, as the judge here

suggested.7   Indeed, a motion judge in some circumstances may

infer that the absence of an affidavit from prior counsel makes

the statements in the defendant's affidavit less likely to be

true.    See Vaughn, 471 Mass. at 405, quoting Commonwealth v.

Goodreau, 442 Mass. 341, 354 (2004) ("the judge may take into

account the suspicious failure to provide pertinent information

from an expected and available source").    But see Commonwealth

v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (lack of

affidavit from trial counsel does not, "by itself, defeat[] a

claim of ineffective assistance of counsel" when "successor




     7 The defendant contends that the judge recognized his
discretion to credit or discredit the defendant's affidavits and
nonetheless credited them. But the decision's plain language
makes it equally plausible that the judge felt legally compelled
to fully credit the defendant's affidavits absent testimony from
plea counsel.
                                                                     10


counsel filed affidavits attesting to plea counsel's lack of

cooperation").

    Because the judge might have failed to recognize his

discretion to credit or discredit the defendant's affidavits in

the absence of an affidavit from plea counsel, we remand "with

instructions to provide findings relating to the issue of [plea

counsel's deficient performance] and, if necessary, to hold an

additional evidentiary hearing . . . for that purpose."     Sylvain

I, 466 Mass. at 439.     We emphasize that the judge on remand

should "provide some reasons for accepting or rejecting a

particular affidavit . . . to assist the appellate court in

understanding whether the judge acted within his or her

discretion."     Vaughn, 471 Mass. at 405.

    2.   Prejudice.     To show prejudice when seeking to withdraw

a guilty plea on the ground of ineffective assistance, a

defendant must provide sufficient "credible facts" to

demonstrate a reasonable probability that a reasonable person in

the defendant's circumstances would have gone to trial if given

constitutionally effective advice.     Lavrinenko, 473 Mass. at 55.

See Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S.

52, 59 (1985).    "At a minimum, this means that the defendant

must aver that to be the case."     Clarke, supra, citing Hill,

supra at 60.     The defendant here stated in his affidavits that

he would have pursued other options, including going to trial,
                                                                     11


had he known about his plea's immigration consequences.

Therefore, he satisfied this baseline requirement for raising an

issue of prejudice.

    After establishing that a defendant has satisfied this

baseline requirement, a judge should proceed in two steps.     The

first step is to determine whether the defendant has shown "that

a decision to reject the plea bargain would have been rational

under the circumstances."   Clarke, 460 Mass. at 47, quoting

Padilla, 559 U.S. at 372.   To prove rationality, the defendant

bears the "substantial burden" of showing at least one of the

following:   (1) an available, substantial ground of defense that

the defendant would have pursued if given proper advice about

the plea's dire immigration consequences; (2) a reasonable

probability that the defendant could have negotiated a plea

bargain that did not include those dire immigration

consequences; or (3) special circumstances supporting the

conclusion that the defendant "placed, or would have placed,

particular emphasis on immigration consequences in deciding

whether to plead guilty."   Clarke, supra at 47-48.

    If the defendant fails to establish any of these three

Clarke factors, then the ineffective assistance of counsel claim

must fail for lack of prejudice.   See Commonwealth v. Lastowski,

478 Mass. 572, 577-579; Clarke, 460 Mass. at 47-49.   If the

defendant does establish at least one of the Clarke factors,
                                                                  12


then the judge must move to the second step and evaluate

whether, under the totality of the circumstances, there is a

reasonable probability that a reasonable person in the

defendant's circumstances would have gone to trial if given

constitutionally effective advice.     See Lavrinenko, 473 Mass. at

55, 59.

    The judge here found that the defendant did not establish

any of the Clarke factors.     Although the defendant argued before

the Appeals Court that the judge ruled improperly with regard to

all three factors, before this court he focuses only on special

circumstances.     Therefore, we address only that issue.   See

Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004) ("If

a new brief is filed [after further appellate review is

granted], it will be considered in lieu of the Appeals Court

brief").   See also Commonwealth v. Maguire, 476 Mass. 156, 156-

157 (2017).

    The judge found a lack of special circumstances without

making any factual findings, stating only that "the court [did]

not find the presence of any special circumstances" "despite the

impassioned advocacy . . . regarding [the defendant's] history

of abuse at the hands of his father and lack of family in his

home [c]ountry."     As the Appeals Court observed, it is

impossible to discern from this statement whether the judge

disbelieved the defendant's affidavits as they pertained to the
                                                                   13


special circumstances analysis or whether he decided that the

defendant did not aver any facts that, even if believed, would

qualify as special circumstances.    Lys, 91 Mass. App. Ct. at

725.   Therefore, as with the deficiency finding, we remand "with

instructions to provide findings relating to the issue of

[special circumstances] and, if necessary, to hold an additional

evidentiary hearing . . . for that purpose."    Sylvain I, 466

Mass. at 439.

       We also provide guidance for the judge on remand with

regard to the special circumstances analysis.    In evaluating

whether the defendant has established the existence of special

circumstances, a judge must consider collectively all of the

factors supporting the conclusion that the defendant "placed, or

would have placed, particular emphasis on immigration

consequences in deciding whether to plead guilty."    Clarke, 460

Mass. at 47-48.   In DeJesus, 468 Mass. at 183-184, for example,

the court found that special circumstances existed based on the

confluence of three factors:    the defendant "had been in the

country since he was eleven years old, his family was in Boston,

and he had maintained steady employment in the Boston area."

See Commonwealth v. Cano, 87 Mass. App. Ct. 238, 247-248 (2015)

(finding that defendant raised substantial issue concerning

"special circumstances" because he "ha[d] not lived in Colombia

since he moved to the United States in 1979, at age twelve"; was
                                                                   14


"largely dependent on his family members in the United States

for many of the basic requirements of daily life"; and

"depend[ed] to a significant extent on governmental benefits to

meet his financial needs"); Martinez, 86 Mass. App. Ct. at 552-

553 (remanding for consideration of prejudice where defendant

was "a United States resident since early childhood, employed

with a family, including a common-law wife and three children

who were all United States citizens").

    Similarly, in Lee v. United States, 137 S. Ct. 1958, 1968-

1969 (2017), the United States Supreme Court considered a

confluence of factors in reversing the denial of the defendant's

motion to vacate his guilty plea.   Although the Supreme Court

did not use our parlance of "special circumstances," it noted

that the defendant had not visited his birth country since

moving to the United States at the age of thirteen, "had lived

in the United States for nearly three decades, had established

two businesses in Tennessee, and was the only family member in

the United States who could care for his elderly parents."      Id.

at 1962, 1968.   Cf. United States v. Gonzales, 884 F.3d 457,

461-463 (2d Cir. 2018) (per curiam) (vacating defendant's guilty

plea due to court's "failure to inform [defendant] of the

immigration consequences of his plea" where defendant came to

United States as child, lived in New York City near his children

and their mothers for most of his life, had family in New York
                                                                  15


City area, and had siblings serving in United States military);

United States v. Ruiz, 548 Fed. Appx. 410, 411-412 (9th Cir.

2013) (finding that "proper legal advice of which [defendant]

was deprived could have at least plausibly motivated a

reasonable person in her position not to have pled guilty" where

defendant "ha[d] longstanding ties to the United States, having

arrived here at the age of seven, having lived here for [thirty]

years and having two U.S.-born children").

    Here, the relevant factors as alleged during the motion

hearing and in the defendant's affidavits are that the defendant

moved to the United States from Haiti at the age of seven and

has not since returned; that the defendant has friends, family,

and a girlfriend in the United States; that the defendant has

been unable to locate any family members in Haiti since the

earthquake that devastated Haiti in January 2010; that the

defendant is not proficient in the language of Creole or French;

and that the defendant was diagnosed with a learning disability

when he was young.

    A further relevant circumstance not discussed at the motion

hearing is that at the time of the defendant's plea, Haitian

nationals in the United States were granted temporary protected

status (TPS) because of the earthquake.   See 75 Fed. Reg. 3476

(2010) (designating Haiti for TPS); 76 Fed. Reg. 29,000 (2011)

(extending Haiti's TPS through January 22, 2013).   The court may
                                                                   16


take judicial notice of this designation by the Secretary of

Homeland Security because notice of the designation was

published in the Federal Register.   See Ralston v. Commissioner

of Agric., 334 Mass. 51, 53 (1956) ("The contents of the Federal

Register are the subject of judicial notice by this court").

See also 44 U.S.C. § 1507 (2012) ("The contents of the Federal

Register shall be judicially noticed . . .").    Cf. Mass. G.

Evid. § 202(b) (2018) ("A court may take judicial notice of the

contents of Federal regulations . . . not brought to its

attention . . .").

    If the judge were to find that all of these alleged factors

existed at the time of the defendant's plea, then it would be an

abuse of discretion to find that these factors, considered

collectively, failed to constitute special circumstances.    A

finding of special circumstances requires only a finding that

the defendant "placed, or would have placed, particular emphasis

on immigration consequences in deciding whether to plead

guilty."   Clarke, 460 Mass. at 47-48.   It is hard to imagine any

reasonable person who would not, in light of this confluence of

factors, place "particular emphasis on immigration consequences

in deciding whether to plead guilty."    Id.

    This is not to say that the judge must find prejudice if he

or she finds that the above-listed factors existed at the time

of the defendant's plea.   The existence of special circumstances
                                                                    17


does not automatically result in prejudice.   Rather, "[t]he

prejudice determination rests on the totality of the

circumstances, in which special circumstances regarding

immigration consequences should be given substantial weight."

Lavrinenko, 473 Mass. at 59.   See Lee, 137 S. Ct. at 1966, 1968.

    We do not provide an exhaustive list of the particular

factors that the judge should consider on remand if he or she

reaches this totality of the circumstances analysis.     We

emphasize that the judge may consider any factor that bears on

the ultimate question of prejudice:   whether there is a

reasonable probability that a reasonable person in the

defendant's circumstances would have gone to trial if given

constitutionally effective advice.    In answering this question,

the judge should remember that, for some defendants, "even a

small chance of acquittal may be sufficient to show that it was

reasonably probable that a person in the position of the

defendant would have rejected the plea and insisted on going to

trial."   Lavrinenko, 473 Mass. at 63.   This is because "[t]he

decision whether to plead guilty . . . involves assessing the

respective consequences of a conviction after trial and by plea.

When those consequences are, from the defendant's perspective,
                                                                   18


similarly dire, even the smallest chance of success at trial may

look attractive" (citation omitted).   Lee, 137 S. Ct. at 1966.8

     We reaffirm the Lavrinenko case's nonexhaustive list of

potential factors:   the defendant's assessment of success at

trial; the risks of going to trial rather than pleading guilty,

including "the risk that a conviction [at trial] would result in

a sentence at or close to the 'maximum allowable sentence'" or

"the risk that a conviction at trial would result in a mandatory

minimum sentence substantially more severe than the sentence

offered through a guilty plea to a lesser charge"; whether

conviction at trial would result in a house of correction

sentence or a lengthy State prison sentence; and the defendant's

deportability on acquittal.9   Lavrinenko, 473 Mass. at 59 n.20,




     8 In Lee v. United States, 137 S. Ct. 1958, 1966-1967
(2017), the United States Supreme Court found prejudice based on
the "dire" immigration consequences of a guilty plea, where the
defendant said, inter alia, that "he . . . would have rejected
any plea leading to deportation -- even if it shaved off prison
time -- in favor of throwing a 'Hail Mary' at trial." In
football, a "Hail Mary" is a long pass into the end zone with
little time remaining. The chance of success is meager, but not
zero. Doug Flutie did, after all, complete such a pass to
secure a victory for Boston College in 1984.

     9 We recognize that the parties have briefed the
applicability of various special circumstances and totality
factors to the defendant in this case. We also recognize that
the Commonwealth has moved to (1) supplement the record with
information relevant to the defendant's deportability on
acquittal and (2) strike a portion of the defendant's brief
relevant to the defendant's lack of ties with Haiti. Although
we do not reach these issues, they may be addressed on remand.
                                                                     19


quoting Commonwealth v. Roberts, 472 Mass. 355, 365 (2015).     We

also observe that the Clarke factors discussed supra are

relevant to the totality analysis.    See Clarke, 460 Mass. at 47-

48.   But we emphasize that, "[u]ltimately, a defendant's

decision to tender a guilty plea is a unique, individualized

decision, and the relevant factors and their relative weight

will differ from one case to the next."    Lavrinenko, supra,

quoting Roberts, supra at 365-366.

      Conclusion.   For the foregoing reasons, the order denying

the defendant's motion for a new trial is vacated and the matter

is remanded to the District Court for proceedings consistent

with this opinion.

                                     So ordered.
