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11-P-2063                                              Appeals Court

                 COMMONWEALTH   vs.   JOSE MARTINEZ.


                           No. 11-P-2063.

        Suffolk.       April 10, 2014. - October 29, 2014.

            Present:    Grainger, Rubin, & Hanlon, JJ.


Alien. Constitutional Law, Assistance of counsel, Plea.
     Practice, Criminal, Assistance of counsel, Plea, Affidavit.



     Indictments found and returned in the Superior Court
Department on June 1, 1998.

     A motion for a new trial, filed on September 6, 2011, was
considered by Elizabeth B. Donovan, J., and a motion for
reconsideration was considered by her.


     David Shaughnessy for the defendant.
     Sarah H. Montgomery, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.     The defendant, Jose Martinez, citing Padilla v.

Kentucky, 559 U.S. 356 (2010) (Padilla), appeals from the

denial, without a hearing, of his motion for a new trial on the

grounds of ineffective assistance of counsel, and from the

denial of his motion for reconsideration.     The significant issue
                                                                   2


is the appropriate weight to be given to a defendant's failure

to produce an affidavit from plea counsel, when the defendant

makes a substantial showing that he attempted to obtain such an

affidavit and counsel refused to respond.   In the circumstances

of this case, the defendant was entitled to an evidentiary

hearing, with an opportunity to secure plea counsel's presence

by subpoena and for the judge to determine any credibility

issues based on live testimony.   Accordingly, we vacate the

orders denying the defendant's motions for new trial and for

reconsideration and remand the matter for an evidentiary

hearing.

     Background.   On May 3, 1999, the defendant pleaded guilty

in the Superior Court to distribution of a class B controlled

substance, in violation of G. L. c. 94C, § 32A(a) (count one),1

and conspiracy to violate the Controlled Substances Act, in

violation of G. L. c. 94C, § 40 (count two).2   The judge gave the


     1
       The defendant initially was charged with distribution of a
class B controlled substance, in violation of G. L. c. 94C,
§ 32A(c); that statute provides for a mandatory minimum sentence
of one year. At the change of plea hearing, the Commonwealth
moved to amend count one, instead charging the defendant under
G. L. c. 94C, § 32A(a), which carries no mandatory sentence of
imprisonment.
     2
       At the plea hearing, the prosecutor told the judge that,
on November 25, 1997, the defendant had facilitated a drug
transaction between an undercover police officer and a drug
dealer for a forty dollar purchase of cocaine; the police
officer afterwards paid the defendant ten dollars for his part
in setting up the deal.
                                                                     3


"immigration warning" required by G. L. c. 278, § 29D, and then

asked the defendant where he was born.    The defendant answered

that he was born in Guatemala, and the judge responded, "I have

no way of knowing what the consequences will be in terms of

deportation and all.    That's up to the Federal Naturalization

Service and not anything I can control.   You understand you're

running the risk, though?"    The defendant responded, "Yes."

    The judge then accepted the plea, finding that the

defendant was "alert and intelligent and that his plea [was]

made voluntarily with full knowledge of its consequences."      He

imposed a sentence of two years in a house of correction, with

six months to serve and the balance suspended, and two years of

probation from and after the incarceration.    Count two, the

conspiracy charge, was placed on file with the defendant's

consent.   Six months later, on October 12, 1999, the defendant

was deported.

    On September 6, 2011, the defendant filed a motion for a

new trial, seeking to withdraw his guilty plea on the grounds of

ineffective assistance of counsel.    In his motion, the defendant

alleged that at the time of the plea, "he was affirmatively

misinformed by his counsel that the plea and agreed upon

sentence would not affect his status as a permanent resident in

the United States."    The motion was accompanied by two

affidavits, one signed by the defendant and one by Migdalia
                                                                      4


Garcia, the mother of his four children.    The defendant's

affidavit stated that his attorney had "told [him] that [he]

would not be deported because [he] would not serve more than one

year of committed time under the agreed-upon plea.

Specifically, [the attorney] stated to the [defendant]:       'This

is between the Superior Court and you.    Immigration has nothing

to do with it.'"   The defendant continued that, although the

plea judge had warned that his plea "could have immigration

consequences, [he] understood from the conversation with [his]

attorney that those consequences would not apply in [his] case."

    The defendant's affidavit also stated that he came to the

United States in 1977 at the age of seven, and he attended

middle school and high school in Boston.    At the time of the

plea, he was a permanent resident of the United States, he was

employed, and he had three children who were United States

citizens.   His whole family was "here," and he had "no

significant ties to any other country."    Garcia's affidavit

corroborated the defendant's assertion that the attorney had

"specifically told [the defendant] that he would not be deported

as a result of pleading guilty in this case, which was the

determining factor to his decision to plead guilty."    In fact,
                                                                   5


the plea was grounds for deportation, and the defendant was

deported in October, 1999, as a result of the conviction.3

     The defendant also submitted a third affidavit from one

Wendy Wayne, an attorney who described herself as "an

immigration law specialist with the Committee for Public Counsel

Services."   In her affidavit, Wayne explained that under Federal

law, "all Massachusetts controlled substance offenses other than




     3
       On April 6, 2011, the defendant was indicted in the United
States District Court for the District of Massachusetts on a
charge of illegal reentry into the United States, in violation
of 8 U.S.C. § 1326 (2012). On March 16, 2012, after denial of
his motion to dismiss that indictment, the defendant pleaded
guilty to illegal reentry into the United States. On June 25,
2012, he received a sentence of twenty-one months' imprisonment
and twenty-four months' supervised release. He filed a notice
of appeal three days later. The record does not indicate the
status of that appeal. The Commonwealth suggests that the
appeal in the case before us is moot because "vacating the
defendant's [S]tate conviction would not necessarily affect his
[F]ederal prosecution." As the Commonwealth notes, Federal law
in this area is not necessarily clear cut. See United States v.
Boliero, 923 F. Supp. 2d 319, 335-336 (D. Mass. 2013)
(defendant's motion to dismiss the indictment charging her with
illegal reentry under 8 U.S.C. § 1326[a], [b][2], was granted
because defendant met all three requirements under § 1326[d] and
had shown that a 1992 deportation order, an essential element of
the crime with which she was charged, was invalid, and further,
the prosecution for illegal reentry was a due process violation
where the prosecution was a continuing consequence of a criminal
conviction that was vacated ab initio). The Commonwealth argues
that the present case is distinguishable. However, because we
cannot say what effect vacating the defendant's conviction would
have on his Federal prosecution or status in this country, and
because the parties have briefed the issues fully, we have
addressed the issues raised.
                                                                   6


straight possession" were considered "aggravated felonies."4     See

8 U.S.C. § 1101(a)(43)(B) (2012).   However, Wayne also stated

that some other offenses, including crimes of violence and theft

offenses, "become aggravated felonies only upon a conviction AND

the imposition of a one year sentence."   See, e.g., 8 U.S.C.

§ 1101(a)(43)(F), (J), (R), (S) (2012).   In Wayne's experience,

"it is a common misperception among criminal defense attorneys

that keeping a committed sentence under one year on any offense

will avoid an aggravated felony."

     The Commonwealth opposed the defendant's motion.   Although

conceding that "[h]ere, as in Padilla, it was 'truly clear' that

the defendant's crime would render him deportable," the

Commonwealth nonetheless maintained that there was no support

for the defendant's position, as his own affidavit was "wholly

self-serving"; Garcia's affidavit was "replete with hearsay, and

. . . merely repeat[ed] what plea counsel and the defendant

allegedly discussed prior to the plea"; and Wayne's affidavit

was irrelevant, "as she lack[ed] personal knowledge of the

defendant's case."   "Most importantly," according to the

Commonwealth, "an affidavit from [plea counsel] is suspiciously

absent.   Without plea counsel's affidavit, [the judge] cannot

     4
       As Wayne recited in her affidavit, "[a]n aggravated felony
is a special class of deportable crimes that subject a
noncitizen to nearly automatic deportation, permanent exile from
the U.S. and a bar to almost every form of relief from
deportation." See 8 U.S.C. § 1101(a)(43) (2012).
                                                                    7


assess any aspect of his advice to the defendant.     Thus, the

defendant cannot meet his burden of proving that 'counsel's

representation "fell below an objective standard of

reasonableness"'" (emphasis supplied).

    On November 2, 2011, a judge who was not the plea judge

denied the defendant's motion without a hearing.    She described

the plea judge's discussion of the issue of deportation at the

plea colloquy as "painstaking," and observed that "[i]f the

defendant was confused between the advice of counsel and the

judge's explanation he would have made inquiry as he did with

another issue."   She noted the absence of an affidavit from plea

counsel and described the defendant's affidavit as "self-

serving" and Garcia's affidavit as "hearsay."   The judge also

stated that Wayne's affidavit did "not assist in the analysis

for ineffective assistance of counsel," and the judge "adopt[ed]

the legal arguments set forth in the Commonwealth's brief and

incorporated it by reference."   Finally, she determined, without

elaboration, that the defendant had not shown prejudice.

    The defendant then moved for reconsideration, detailing his

new lawyer's attempts to obtain an affidavit from plea counsel,

and noting that it was evident from the judge's order that "the

pivotal and deciding factor in the [c]ourt's determination that

the [d]efendant raised no substantial issue was the absence of

an affidavit from [plea counsel]."   The motion continued that
                                                                      8


new counsel had made considerable effort to secure the affidavit

and had been unable to do so.5    The motion was supplemented by

affidavits from counsel and from his associate.     The judge

denied the motion for reconsideration without a hearing or

further comment.6

     Discussion.     "A motion to withdraw a guilty plea is treated

as a motion for a new trial pursuant to Mass. R. Crim. P.

30(b)[, as appearing in 435 Mass. 1501 (2001)].     Commonwealth v.

Furr, 454 Mass. 101, 106 (2009).     A judge may grant such a

motion 'if it appears that justice may not have been done.'

Mass. R. Crim. P. 30 (b)."     Commonwealth v. Rodriguez, 467 Mass.

1002, 1004 (2014).     "When, as here, the motion judge did not

preside [at the plea hearing] . . . , we regard ourselves in as

good a position as the motion judge to assess the . . . record."


     5
       Specifically, counsel represented to the judge, "During
the past five months counsel of record and associate attorneys
have spoken to [plea counsel] on several occasions. [P]lea
counsel has stated that he has no recollection of the 1999
proceedings where he represented [the defendant], therefore he
cannot confirm nor deny that he told [the defendant] that he
would not be deported. Through repeated telephone calls and
numerous letters counsel has attempted to persuade [plea
counsel] to sign an affidavit to that effect, which he agreed to
do. However, [plea counsel] has not answered any of [c]ounsel's
follow-up letters, and has stopped taking [c]ounsel's telephone
calls."
     6
       On October 16, 2012, this court allowed the defendant to
file late in the Superior Court a notice of appeal as to the
denial of both the motion for new trial and motion for
reconsideration.
                                                                   9


Commonwealth v. Petetabella, 459 Mass. 177, 181 (2011), quoting

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

     "It is well established that a judge has discretion to deny

a new trial motion on the affidavits."   Commonwealth v. Gordon,

82 Mass. App. Ct. 389, 394 (2012).   See Mass.R.Crim.P. 30(c)(3),

as appearing in 435 Mass. 1501 (2001).   However, when the

defendant raises a substantial issue of fact, it is the better

practice to conduct an evidentiary hearing.   See Commonwealth v.

Chatman, 466 Mass. 327, 334 (2013), quoting from Commonwealth v.

Stewart, 383 Mass. 253, 257-258 (1981) ("In determining whether

a 'substantial issue' meriting an evidentiary hearing . . . has

been raised, we look not only at the seriousness of the issue

asserted, but also to the adequacy of the defendant's showing on

the issue raised"); Commonwealth v. Gordon, supra at 394-395.

     Counsel's advice regarding the immigration consequences for

a permanent resident tendering a guilty plea to controlled

substance charges is a serious issue.7   See 8 U.S.C.

§ 1227(a)(2)(B)(i) (2012).   Federal law "specifically commands

removal for all controlled substances convictions except for the




     7
       The definition of “controlled substance” is "a drug or
other substance, or immediate precursor, included in schedule I,
II, III, IV, or V of part B of [21 U.S.C. § 812 (2012)]. The
term does not include distilled spirits, wine, malt beverages,
or tobacco, as those terms are defined or used in subtitle E of
the Internal Revenue Code of 1986." 21 U.S.C. § 802(6) (2012).
                                                                    10


most trivial of marijuana possession offenses."8    Commonwealth v.

DeJesus, 468 Mass. 174, 180 (2014), quoting from Padilla, 559

U.S. at 368.   "Counsel therefore was obligated to provide to

[the defendant] . . . the information that presumptively

mandatory deportation would have been the legal consequence of

pleading guilty."    Id. at 181.   "Without the benefit of such

counsel, a client cannot enter a knowing and voluntary plea."

Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012).

     The defendant agrees that the case law is replete with

comments that, in ineffective assistance claims, the court is

entitled to draw a negative inference from the defendant's

failure to secure an affidavit from trial or plea counsel.        See,

e.g.,    Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004)

("[T]rial counsel's failure to confirm either of these points

speaks volumes.   When weighing the adequacy of the materials

submitted in support of a motion for a new trial, the judge may

take into account the suspicious failure to provide pertinent

information from an expected and available source.     See

Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 553-554 [2002]"

[emphasis supplied]).    See also Commonwealth v. Leng, 463 Mass.

     8
       "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, the United States, or
a foreign country relating to a controlled substance (as defined
in [21 U.S.C. § 802]), other than a single offense involving
possession for one's own use of 30 grams or less of marijuana,
is deportable." 8 U.S.C. § 1227(a)(2)(B)(i) (2012).
                                                                  11


779, 787 (2012); Commonwealth v. Williams, 71 Mass. App. Ct.

348, 352 (2008), quoting from Commonwealth v. Thurston, supra

("The defendant's claim in his affidavit that trial counsel was

ineffective in his preparation is 'conspicuously marred' by his

failure to file an affidavit from his attorney, or . . . even

[to] indicate that he sought to obtain an affidavit from

counsel" [emphasis supplied]).

    The Commonwealth argues that "Massachusetts courts should

continue -- as a matter of policy -- to draw an adverse

inference from an attorney's failure to provide an affidavit to

a former client raising an ineffectiveness claim."   That goes

too far.   Certainly, a judge reasonably may draw a negative

inference in many such cases and conclude that there is no

affidavit from counsel because a truthful affidavit would not

assist the defendant.   However, other situations are possible.

For example, a lawyer who is aware that his assistance some five

or ten years earlier was less than exemplary might very well be

reluctant to describe that lapse in an affidavit intended for

submission to a court where he regularly receives new

appointments.   In a case such as this one, where successor

counsel filed affidavits attesting to plea counsel's lack of

cooperation -- including even the failure to return telephone

calls -- the lack of an affidavit cannot be a talisman that, by

itself, defeats a claim of ineffective assistance of counsel.
                                                                      12


    To succeed on an ineffective assistance claim, the

defendant was required to provide factual support showing that

trial counsel's representation fell "measurably below that which

might be expected of an ordinary fallible lawyer."        Commonwealth

v. DeJesus, 468 Mass. at 178, quoting from Commonwealth v.

Clarke, 460 Mass. 30, 45 (2011).     If this defendant's plea

counsel in fact informed him that, so long as he served less

than a year of incarceration, he was not likely to be deported,

that advice was ineffective at this 1999 plea hearing.       "After

the 1996 effective date of 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."     Id. at 180, quoting from

Padilla, 559 U.S. at 363-364.     Moreover, Federal law

"specifically commands removal for all controlled substances

convictions except for the most trivial of marijuana possession

offenses."   Ibid., quoting from Padilla, supra.

    Both the Commonwealth and the motion judge describe the

plea judge's colloquy with the defendant on the issue of

deportation as "painstaking."     That is not the issue here.

While the judge properly administered the "immigration warning"

required by G. L. c. 278, § 29D, "such warnings are 'not an

adequate substitute for defense counsel's professional

obligation to advise [his] client of the likelihood of specific
                                                                     13


and dire immigration consequences that might result from such a

plea'"   Commonwealth v. DeJesus, supra at 177 n.3, quoting from

Commonwealth v. Clarke, supra at 48 n.20.

    In addition, as noted, the plea judge also stated that he

had "no way of knowing what the consequences [would] be in terms

of deportation and all.   That's up to the Federal Naturalization

Service and not anything I can control.   You understand you're

running the risk, though?"   As the court observed in

Commonwealth v. DeJesus, supra at 181, "[t]elling the defendant

that he was 'eligible for deportation' and that he would 'face

deportation' was not adequate advice because it did not convey

what is clearly stated in Federal law."     Such advice could have

"convey[ed] that the law requires additional conditions to be

met before an individual could be removed and allows for the

exercise of discretion in determining whether those conditions

are met."   Ibid.   In this case, it appears that, in fact, little

more was required and, at least in hindsight, that statement

from the judge might have undermined even accurate advice from

counsel.

    Because the motion judge appears to have based her decision

in large part on the defendant's failure to produce an affidavit

from plea counsel, without appearing to consider the

circumstances of that failure, this case must be remanded for an

evidentiary hearing on the defendant's motion for a new trial.
                                                                    14


The hearing will permit the judge not only to hear from plea

counsel, but also to assess first-hand the credibility of the

defendant and Garcia.9,10

     At the hearing after remand, the defendant also will be

required to show that the consequence of counsel's serious

incompetency was prejudicial.   See Commonwealth v. Clarke, 460

Mass. at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59,

(1985) ("In the context of a guilty plea, in order to satisfy

the 'prejudice' requirement, 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'").

     The decision on the issue of prejudice will be for the

motion judge at the hearing.    However, on the record before us,

we cannot say that the defendant will be unable to meet this

burden.   His situation -- a United States resident since early

childhood, employed with a family, including a common-law wife

     9
       Dismissing Garcia's affidavit as "hearsay" is puzzling in
light of her representation that she was present during the
conversation between the defendant and plea counsel.
     10
       In addition, the motion judge stated in footnote that
"Attorney Wendy Wayne, Committee for Public Counsel filed an
amicus curiae in Clarke and also filed an affidavit in this case
which does not assist in the analysis for ineffective assistance
of counsel." On this record, it appears to us that informed
testimony about regular practice in the Boston trial bar, if
found credible, would be at least relevant to the issues to be
addressed at the forthcoming hearing.
                                                                     15


and three children who were all United States citizens --

compares very favorably with that of the defendant in DeJesus,

and his legal position -- a minor player in a forty dollar

street drug transaction -- compares even more favorably.     As the

prosecutor noted at the time of the plea, this defendant had no

"other previous drug offenses," "the amount of drugs . . . was

minimal," and the defendant's role was minor.     The defendant in

DeJesus, on the other hand, received a straight probation

sentence on a charge reduced from trafficking, one that would

have carried a five-year mandatory minimum sentence.     On this

record, it appears that there is at least a reasonable

possibility that the defendant in the present case would have

chosen to go to trial rather than face "charges that made his

deportation virtually mandatory."   See DeJesus, supra at 179,

quoting from Padilla, supra at 359.

    We vacate the orders denying the defendant's motion for a

new trial and for reconsideration and remand this matter for

further proceedings consistent with this opinion.

                                    So ordered.
