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15-P-472                                              Appeals Court

                 COMMONWEALTH   vs.    SON NGUYEN.



                No. 15-P-472.         May 17, 2016.


Practice, Criminal, Plea, Assistance of counsel. Constitutional
     Law, Plea, Assistance of counsel. Due Process of Law,
     Plea, Assistance of counsel. Alien. Shoplifting.


     In 2013, the defendant admitted to facts sufficient to
prove three counts of shoplifting. A judge of the Dorchester
Division of the Boston Municipal Court Department continued the
cases without findings and imposed conditions of probation.
After the defendant was found in violation of probation based on
a new shoplifting offense, guilty findings were entered on the
three underlying charges, and he was sentenced to ten days'
incarceration. The defendant subsequently filed a motion for a
new trial seeking to withdraw his guilty pleas. Before us now
is the defendant's appeal of the order denying that motion
without an evidentiary hearing, and of the order denying his
motion for reconsideration. We affirm.

     In the defendant's motion for a new trial, he argued that
his plea counsel was constitutionally ineffective for failing to
provide the defendant with adequate advice regarding the
immigration consequences of his pleas. See Padilla v. Kentucky,
559 U.S. 356, 368-369 (2010). Because the record establishes
that plea counsel did discuss with the defendant that his pleas
could have negative immigration consequences,1 the defendant is
left to argue that counsel was ineffective for failing to advise

    1
       For example, the waiver of rights form that both the
defendant and his counsel signed attested that the defendant had
been warned that the pleas could have immigration consequences.
                                                                   2


him that he presumptively would be deported as a result of the
pleas. See Commonwealth v. DeJesus, 468 Mass. 174, 180-182
(2014).

     As the defendant accurately notes, "[a]ny alien who . . .
is convicted of two or more crimes involving moral turpitude
. . . is deportable." 8 U.S.C. § 1227(a)(2)(A)(ii) (2008).
There is some question, however, whether the defendant is
correct in his assertion that the crime of shoplifting is a
crime involving moral turpitude. See Mejia v. Holder, 756 F.3d
64, 68-69 (1st Cir. 2014). Compare Commonwealth v. Balthazar,
86 Mass. App. Ct. 438, 442-443 (2014), with Commonwealth v.
Cano, 87 Mass. App. Ct. 238, 245 n.14 (2015). However, even
were we to assume arguendo that shoplifting constitutes such a
crime, the defendant is still unable to show that he
presumptively would be deported as a result of his pleas.2 To
the contrary, because it is undisputed that the defendant came
to the United States from Vietnam prior to 1995, he enjoys a
protected status pursuant to the United States-Vietnam
repatriation pact of 2008 (2008 pact).3 Specifically, the
defendant, who is a lawful permanent resident, cannot be
deported back to Vietnam.4 The premise underlying the

    2
       Of course, the defendant would also have to demonstrate
that the advice he received "deprived [him] of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). In the context of this case,
that means "the defendant has the burden of 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.'" Commonwealth v. Clarke, 460 Mass. 30, 47
(2011), quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Nothing in this opinion should be interpreted as suggesting that
we agree that the defendant has met that burden.
    3
       See Agreement on the Acceptance of the Return of
Vietnamese Citizens, Jan. 22, 2008, U.S.-Vietnam, T.I.A.S. No.
08-322 (available at http://www.state.gov/documents/
organization/108921.pdf [https://perma.cc/M92G-EWSW]).
    4
       The defendant acknowledged this point of law in an
affidavit executed by his student attorney in support of his
motion for a new trial. That affidavit goes on to assert that
even though the defendant could not be deported, he "could still
be placed in deportation proceedings under certain
circumstances." No further explanation is provided as to what
this means or how it might affect the defendant. See Zadvydas
                                                                   3


defendant's claim of ineffective assistance therefore fails,5 and
the judge properly denied his motions.

                                   Orders denying motions for
                                     evidentiary hearing on
                                     motion for new trial and
                                     for reconsideration
                                     affirmed.


     John Sadek (Karen Pita Loor with him) for the defendant.
     Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.




v. Davis, 533 U.S. 678, 682 (2001) ("removable" aliens cannot be
detained indefinitely). Finally, even if the 2008 pact were
altered at some time in the future to provide for the
possibility of deporting Vietnamese citizens who came to the
United States prior to 1995, this would not mean that the advice
that his plea counsel provided about potential negative
immigration consequences was inaccurate at the time the pleas
were accepted.
     5
       Put differently, as the Commonwealth pointed out at oral
argument, had plea counsel advised the defendant that the pleas
meant that he presumptively would be deported, this advice would
have been inaccurate.
