Commonwealth v. Edson C. Lopes.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-144

COMMONWEALTH

vs.

EDSON C. LOPES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order of a Superior Court

judge allowing the motion of the defendant, Edson C. Lopes, to

withdraw his plea and for a new trial pursuant to Mass.

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

Commonwealth argues that (1) a decision by a prior panel of this

court removed the motion judge's authority to grant the motion,

and (2) the judge abused his discretion in concluding that a

reasonable person in the defendant's position would have

rejected the plea deal and gone to trial to try to avoid

permanent exclusion from admission to the United States. We

affirm.
Background. In 2015, the defendant was indicted on a

single count of trafficking heroin in an amount more than

thirty-six grams and less than one hundred grams, in violation

of G. L. c. 94C, § 32E (c) (2), as then in effect.1 By statute,

a person convicted of this offense must serve at least five

years in State prison. Id. In 2016, the defendant elected to

plead guilty, and, in consideration for his plea, the

Commonwealth amended the trafficking indictment to the reduced

offense of possession with intent to distribute a class A

substance, in violation of G. L. c. 94C, § 32 (a). Following a

colloquy, the plea judge accepted the defendant's plea, and the

defendant was sentenced to two years in the house of correction,

suspended for two years during which time he was subject to

administrative probation.

In 2021, the defendant traveled to Cape Verde for the

funeral of his grandfather. Upon his return to the United

States, the defendant was issued a notice from the Department of

Homeland Security ordering him to appear before an immigration

judge to show why he should not be removed from the United

States due to his drug conviction. In 2023, the defendant filed

a motion to withdraw his plea and for a new trial on the basis

of ineffective assistance of counsel regarding the immigration

1 The statute was amended in 2016 and 2018. The amendments
do not affect our analysis.

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consequences of his plea. The motion was supported by the

defendant's affidavit, an affidavit from his plea counsel, and

letters attesting to his good character. After a nonevidentiary

hearing, the motion judge allowed the motion.

The Commonwealth appealed from the judge's order allowing

the motion, and in an unpublished decision a panel of this court

vacated the order and "remand[ed] the matter to the Superior

Court for further consideration consistent with this memorandum

and order." Commonwealth v. Lopes, 104 Mass. App. Ct. 1121

(2024). The panel agreed with the judge that the defendant's

plea counsel rendered substandard performance by failing to

advise the defendant that his conviction would result in his

exclusion from admission into the United States. The panel

concluded, however, that the judge erred in determining that the

defendant offered evidence of special circumstances sufficient

to show that, but for the ineffective assistance of counsel,

there was a reasonable probability that the defendant would not

have pleaded guilty and would have insisted on going to trial.

See Commonwealth v. Lavrinenko, 473 Mass. 42, 55 (2015). In

remanding the matter, the panel stated, "We leave the question

whether to hold an evidentiary hearing to the sound discretion

of the motion judge."

On remand, the same motion judge held an evidentiary

hearing at which the defendant testified. The Commonwealth did

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not object to the judge conducting an evidentiary hearing. The

Commonwealth did not call any witnesses or present any evidence

in opposition to the defendant's motion. After the hearing, the

judge again allowed the defendant's motion and ordered a new

trial. The Commonwealth now appeals from that order.

Discussion. We review a judge's ruling on a motion for a

new trial "only to determine whether there has been a

significant error of law or other abuse of discretion."

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

Lavrinenko, 473 Mass. at 47. "[A] judge's discretionary

decision constitutes an abuse of discretion where [the reviewing

court] conclude[s] the judge made a clear error of judgment in

weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

1. Compliance with the prior panel's decision. On remand,

a trial court judge must follow the terms of an appellate

court's decision as to matters addressed in that decision. See

City Coal Co. of Springfield v. Noonan, 434 Mass. 709, 710–712

(2001). The appellate court's instructions become "the

governing 'law of the case' and should not [be] reconsidered by

the remand judge." Id. at 712 (vacating portion of judgment

that exceeded trial judge's authority by reconsidering issue

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that appellate court already decided). See Sprague v. Ticonic

Nat'l Bank, 307 U.S. 161, 168 (1939) ("The general proposition

which moved [the trial court] -- that it was bound to carry the

mandate of the upper court into execution and could not consider

the questions which the mandate laid at rest -- is

indisputable").

Here, the Commonwealth first contends that the judge

"inexplicably ignored" the prior panel's order by holding an

evidentiary hearing on remand to "relitigat[e] the defendant's

motion for [a] new trial." The Commonwealth waived this issue

by failing to raise it in the Superior Court. See Commonwealth

v. Bettencourt, 447 Mass. 631, 633-634 (2006). Even if it were

not waived, it is meritless. The panel vacated the judge's

order allowing the defendant's motion and remanded the matter

"for further consideration consistent with this memorandum and

order" while "leav[ing] the question whether to hold an

evidentiary hearing to the sound discretion of the motion

judge." Lopes, 104 Mass. App. Ct. 1121. Accordingly, the judge

did not act outside the terms of the panel's decision by holding

an evidentiary hearing on remand.

We similarly disagree with the Commonwealth's claim that

because the panel "ruled on the ultimate issues presented in the

defendant's motion for new trial, [the judge] was without

authority to rule otherwise." That claim cannot be reconciled

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with the panel's order remanding the case "for further

consideration." Lopes, 104 Mass. App. Ct. 1121. In its

decision, the panel agreed with the judge that the defendant's

plea counsel rendered substandard performance in advising the

defendant on the consequences of the plea. Id. It concluded,

however, that in applying the prejudice prong of the ineffective

assistance framework, the judge failed to consider the totality

of circumstances at the time of the plea in assessing the

strength of the Commonwealth's case, and also improperly

considered the defendant's relationship with his son as a factor

showing "the depth and quality" of his roots in the United

States, because the son had not been born at the time of the

plea. Id. See Lavrinenko, 473 Mass. at 58-60. Citing

Commonwealth v. Rodriguez, 101 Mass. App. Ct. 54, 59-60 (2022),

the panel stated that the defendant needed to show more than

"lawful status, employment, and the presence of nondependent

family members" to support a finding of special circumstances.

Lopes, 104 Mass. App. Ct. 1121. The panel clearly anticipated

that on remand the judge would further consider the defendant's

motion, perhaps on an expanded evidentiary record supported by a

hearing, in a manner consistent with its decision.

2. Prejudice. "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

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that, but for counsel's errors, he would not have pleaded guilty

and would have insisted on going to trial'" (citation omitted).

Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), abrogated in

part on other grounds by Chaidez v. United States, 568 U.S. 342

(2013). "To prove that rejecting the plea would have been

rational under the circumstances, 'the defendant bears the

substantial burden of showing that (1) he [or she] had an

"available, substantial ground of defence," . . . that would

have been pursued if he [or she] 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 the time; or (3) the presence of "special

circumstances" that support the conclusion that he [or she]

placed, or would have placed, particular emphasis on immigration

consequences in deciding whether to plead guilty.'" Lavrinenko,

473 Mass. at 55-56, quoting Clarke, supra at 47-48. In

evaluating whether a defendant has established the existence of

special circumstances, a judge must consider all of the factors

collectively, since "[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." Commonwealth v. Lys, 481 Mass. 1, 8, 11

(2018), quoting Lavrinenko, supra at 59 n.20.

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Here, in his decision on remand, the judge relied on the

presence of special circumstances in concluding that the

defendant was prejudiced by his plea counsel's ineffective

assistance.2 The judge found that, "despite the strength of the

case against him and the mandatory minimum sentence he faced,

[the defendant] would not have taken the plea deal if he had

known that he might never again live in the United States." In

particular, the judge credited the defendant's testimony that he

was close to and helped take care of family members who were

United States citizens, assisting with bills, groceries, and

medical appointments. The judge concluded that a reasonable

person in the defendant's position, "a lawful permanent resident

since age thirteen, with all his immediate family members living

here, who took care of that family and had strong community

ties, who appreciated the educational and financial

opportunities this country provided and believed it to be 'a

dream come true,' would have rejected the plea deal and gone to

trial despite the near certainty of a five-year sentence, to try

to avoid permanent exclusion from admission to the United

States."

2 As to the other two Clarke factors, 460 Mass. at 47-48,
because we affirm the judge's decision based on the special
circumstances factor, we need not address them.

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We do not discern a significant error of law or other abuse

of discretion in the judge's order. See Lavrinenko, 473 Mass.

at 47. First, the judge complied with the prior panel's

decision by excluding the defendant's relationship with his son

as a factor in the prejudice analysis and relying on factors

beyond the defendant's lawful status, the defendant's

employment, and the presence of nondependent family members.

Second, courts have acknowledged that special circumstances

sufficient to support a finding of prejudice may exist in

circumstances similar to those here. For example, in

Commonwealth v. DeJesus, 468 Mass. 174, 176, 183-184 (2016), the

Supreme Judicial Court upheld a finding of special circumstances

where the defendant was in the United States since he was eleven

years old, his family was local, and he maintained steady

employment, even though by pleading guilty the defendant

received "a very good deal" and avoided a five-year mandatory

minimum incarceration sentence. The court explained that a

noncitizen defendant may assess the apparent benefits of a plea

offer differently than others, since "preserving his 'right to

remain in the United States may be more important to [him] than

any jail sentence.'" Id. at 184, quoting Padilla v. Kentucky,

559 U.S. 356, 368 (2010). See Lee v. United States, 582 U.S.

357, 371 (2017) (even where trial will "almost certainly" lead

to deportation, where accepting plea agreement would "certainly

9
lead to deportation," noncitizen defendant may rationally choose

to proceed to trial, "holding on to some chance of avoiding

deportation"); Sylvain, 473 Mass. at 834-837 (judge credited

defendant's statement that plea was not "a 'deal'" if it would

result in him being deported). Lastly, we are unpersuaded by

the Commonwealth's suggestion that we should discredit the

defendant's testimony because it was "self-serving" and

addressed some circumstances not mentioned in his 2022

affidavit. As a reviewing court, we grant the "utmost

deference" to "the credibility determinations of the judge who

heard the testimony of the parties . . . [and] observed their

demeanor" (quotations and citations omitted). Noelle N. v.

Frasier F., 97 Mass. App. Ct. 660, 664 (2020).

Conclusion. The order allowing the defendant's motion to

withdraw his plea and for a new trial is affirmed.3

So ordered.

By the Court (Rubin,
D'Angelo & Toone, JJ.4),

Clerk

Entered: November 10, 2025.

3 The defendant's request for attorney's fees is denied.

4 The panelists are listed in order of seniority.

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