Commonwealth v. Fernando A. Aguiar.

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

22-P-535

COMMONWEALTH

vs.

FERNANDO A. AGUIAR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a District Court

judge denying, after an evidentiary hearing, his motion to

withdraw a guilty plea. The defendant's motion was based on

ineffective assistance of counsel, specifically counsel's

failure to properly advise the defendant, a lawful permanent

resident of the United States, of the immigration consequences

of his plea pursuant to Padilla v. Kentucky, 559 U.S. 356

(2010). Determining that the judge erred in, among other

things, disregarding the affidavit of the defendant's plea

counsel and misapprehending the basis of the defendant's removal

from the United States, we reverse.

Background. In November 2019, the forty-five year old

defendant was arraigned in the District Court on a three-count
complaint and detained based on dangerousness.1 He remained in

custody at the time of the scheduled trial date in January 2020.

At that time, the defendant submitted to the judge an agreed-

upon tender of plea proposing that the defendant would plead

guilty on all charges and be sentenced to eighteen months

imprisonment, with sixty days to serve (deemed served), and the

balance suspended for two years with probationary conditions.

During the plea colloquy, the prosecutor explained that "the

alcohol situation is the problem here" and that the disposition

allowed the defendant to be released in order to resolve that

problem or face the prospect of returning to jail.2

In December 2021, after being placed in removal proceedings

and detained by United States Immigration and Customs

Enforcement (ICE), the defendant moved to withdraw his plea on

the basis that he was unaware that his plea would result in "per

1 Count 1 charged strangulation or suffocation and carried a
potential sentence of two and one-half years' imprisonment. See
G. L. c. 265, § 15D. Count 2 charged assault and battery and
carried a potential sentence of two and one-half years'
imprisonment. See G. L. c. 265, § 13A. Count 3 charged
vandalism and carried with it a potential sentence of two years'
imprisonment. See G. L. c. 266, § 126A.

2 According to the prosecutor's recitation of the crimes, the
defendant's daughter arrived at a parking lot of an
establishment in order to pick up her brother and encountered
the defendant shouting at her not to disrespect him; she
believed he was intoxicated. The defendant pushed her up
against her car and held his forearm against her neck, threw her
towards the car and raised his hand as if to punch her, and
kicked her car, damaging it.

2
se" removal from the United States. Although the motion was

supported by the affidavits of the defendant and his plea

counsel, both averring that they were unaware of the immigration

consequences of the plea, the judge indicated that he would not

take plea counsel's affidavit without his testimony.3

An evidentiary hearing on the motion was scheduled for

February 16, 2022, postponed to February 22, 2022, and again

postponed to March 10, 2022.4 Plea counsel was available to

testify on the first two dates, but the judge was unable to hear

the matter. On the third date, defense counsel represented that

plea counsel had been hospitalized the night before and that his

3 The defendant's attorney offered that plea counsel was
available by phone, but the judge insisted on live testimony.
The judge also criticized the defendant's affidavit as being
"unsigned," even though it had an electronic signature. See
G. L. c. 110G, § 9. See also Supreme Judicial Court Updated
Order Regarding Electronic Signatures by Attorneys and Self-
Represented Parties (June 11, 2020) ("In all courts and case
types, whenever an attorney or self-represented party is
required to sign a document to be served on another party or
filed with the court, including an affidavit that must be signed
by an attorney or self-represented party under the penalties of
perjury, the attorney or self-represented party may
electronically sign, unless the court specifically orders
otherwise").

4 The evidentiary hearing was scheduled only after the defendant
filed a renewed motion to withdraw his plea, in accordance with
the judge's instructions. We note that the defendant's original
filing sufficed to present a substantial issue entailing an
evidentiary hearing concerning factual issues. See Commonwealth
v. Lys, 481 Mass. 1, 6 (2018).

3
future availability was uncertain.5 Counsel offered that plea

counsel's affidavit could be considered in place of his

testimony and proceeded with the remaining available witnesses:

the defendant and his daughter, the victim of the crimes to

which the defendant had pleaded guilty.6

After hearing, the judge issued a decision in which he gave

"no weight to plea counsel's affidavit in determining whether he

gave ineffective advice to the Defendant." He found that the

defendant had failed to meet his burden in proving deficient

performance by counsel because the evidence failed to establish

"exactly what the [d]efendant was advised." Additionally, the

judge found that "no evidence was presented" that the defendant

had any substantial ground of defense or that an alternate,

nondeportable sentence could have been obtained. Although the

judge acknowledged that the defendant having immigrated to the

United States as a child, having lived in the United States

since that time, and having no family in Portugal were

"significant issues," he found no other special circumstances.

Determining that the defendant was removable due to a 1995

5 Plea counsel ultimately passed away during the pendency of this
appeal.

6 As relayed by defense counsel, there was pressure to resolve
the matter expeditiously as the defendant was in ICE custody and
in imminent danger of removal. According to counsel, the
defendant had been removed to Portugal, his country of origin,
by the time of oral argument in this case.

4
conviction of assault and battery by means of a dangerous

weapon, the judge found that the immigration consequences

attendant to the charges at issue would not have been

determinative. The judge concluded that the defendant would

still have pleaded guilty, even knowing the immigration

consequences, reasoning that since it took twenty years for

removal proceedings to begin, the defendant likely would have

taken the chance that ICE "'would not catch up to him' in the

future." This appeal followed.

Discussion. We review the denial of a defendant's motion

to withdraw a guilty plea, treated as a motion for new trial,

for significant error of law or other abuse of discretion. See

Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "That

discretion, however, 'is not boundless and absolute.'"

Commonwealth v. Kolenovic, 471 Mass 664, 672 (2015), quoting

Commonwealth v. Genius, 402 Mass. 711, 714 (1988). "While we

will not disturb a judge's subsidiary findings which are

warranted by the evidence, 'ultimate findings and conclusions of

law, particularly those of constitutional dimensions, are open

for our independent review.'" Commonwealth v. Cousin, 478 Mass.

608, 615 (2018), quoting Commonwealth v. Walter, 396 Mass 549,

553-554 (1986).

Where a motion to withdraw a guilty plea is premised upon

ineffective assistance of counsel, the defendant must show

5
"serious incompetency, inefficiency, or inattention of counsel

-- behavior of counsel falling measurably below that which might

be expected from an ordinary fallible lawyer -- and, if that is

found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

defence." DeJesus, 468 Mass. at 178, quoting Commonwealth v.

Clarke, 460 Mass. 30, 45 (2011).

It is well established by now that failure of a lawyer to

advise a client of the "truly clear" immigration consequences of

a plea is deficient performance. See Clarke, 460 Mass. at 42,

quoting Padilla, 559 U.S. at 369 There is no dispute on appeal

that the defendant's conviction of strangulation or suffocation

entailing an eighteen-month sentence constitutes an aggravated

felony for which the immigration consequence is truly clear --

mandatory removal from the United States. See Commonwealth v.

Gordon, 82 Mass. App. Ct. 389, 398 (2012). The only question is

whether plea counsel so advised the defendant. The testimony of

the defendant, as well as the affidavit of plea counsel,

affirmed that no such advice was given, and there was no

evidence to the contrary. Nevertheless, the judge found that

the defendant had failed to meet his burden on plea counsel's

deficient performance.

While a judge need not credit even uncontradicted evidence,

Commonwealth v. Lys, 481 Mass. 1, 5 (2018), there should be a

6
reasoned basis for doing so. See Commonwealth v. Vaughn, 471

Mass. 398, 405 (2015) (articulating reason for acceptance or

rejection of affidavit enables appellate court to determine

whether judge acted within discretion). Here, the judge did not

explicitly discredit either the defendant's testimony or plea

counsel's affidavit concerning the immigration advice

communicated. Rather, the judge found that the defendant

"failed to produce any evidence as to the exact nature of his

discussions with his attorney of [fifteen]-plus years." Yet,

the defendant specifically testified that (aside from the

warnings on the tender of plea form) he never discussed with

plea counsel anything related to immigration on this or any

other case plea counsel represented him on.7

Consistently, plea counsel averred that he advised the

defendant of the "general alien warning contained on the tender

of plea sheet, as required," and that he negotiated the plea

with the district attorney, felt that it was a favorable one,

and "advised [the defendant] to take it." He also specifically

averred that, at the time he negotiated the plea and advised the

defendant to take it, he "was not aware of the grave penalties

7 Although a judge may always want a more fulsome explanation,
the record does not support a finding that the defendant "failed
to produce any evidence" on the nature of his discussions with
his attorney.

7
[the defendant] would inevitably face as a result" and therefore

"did not advise [the defendant] of these eventual outcomes."

Although the Commonwealth had the ability to present its

own evidence on this point, it did not. In her cross-

examination of the defendant, the prosecutor simply brought out

the defendant's prior criminal record and the fact that he had

gone over the tender of plea form with plea counsel and was

given the alien warnings by the judge during the plea colloquy.8

In closing, the prosecutor made no argument regarding the

defendant's showing on plea counsel's deficient performance and

instead addressed only the prejudice element.

While credibility determinations are within the judge's

discretion, the judge must exercise such discretion. See Lys,

481 Mass. at 6-7 (remand where judge assumed defendant's

affidavit must be credited in absence of plea counsel's

affidavit). See also Commonwealth v. Harris, 443 Mass. 714, 728

(2005) (remand where judge declined to exercise discretion in

8 In its brief, the Commonwealth argues that, even if plea
counsel did not advise the defendant of the specific immigration
consequences of the plea, the defendant received sufficient
advice through the tender of plea form, which was updated to
include the language from Padilla, warning that under certain
circumstances, deportation is "practically inevitable."
Regardless of specificity, advice on a form is necessarily
conditional and generic. See Commonwealth v. Petit-Homme, 482
Mass. 775, 788 (2019). It is insufficient to substitute for the
advice of counsel to an individual defendant regarding specific
consequences of a particular plea.

8
ruling on motion in limine). Here, the judge erred in

disregarding the affidavit of plea counsel on the basis that

plea counsel did not testify. See Commonwealth v. Sylvain, 473

Mass. 832, 838-839 (2016) (noting that rule on motions for

postconviction relief contemplates resolution by affidavits in

some circumstances); Mass. R. Crim. P. 30 (c) (3), as appearing

in 435 Mass. 1501 (2001). While a judge may take into account

"the suspicious failure to provide pertinent information from an

expected and available source," Commonwealth v. Goodreau, 442

Mass. 341, 354 (2004), this was not such a case. Plea counsel

was ready and willing to testify on multiple occasions prior to

his unfortunate hospitalization.9 As there was no reasoned basis

to reject the undisputed evidence of plea counsel's deficient

advice in this case, we conclude that the defendant met his

burden on the performance prong of the ineffective assistance of

counsel test.

9 To the extent that the judge rejected plea counsel's affidavit
as "not detailed" and "otherwise inadequate," the judge also
erred. The affidavit clearly set forth that plea counsel was
unaware of the specific immigration consequences of the plea,
that he therefore did not advise the defendant of those
consequences, and that his immigration advice consisted of the
warnings contained in the tender of plea form. We note that
this admission of ineffective assistance was against plea
counsel's interest and therefore likely to be credible. See
Mass. G. Evid. § 804(b)(3) (2023) (hearsay statement against
interest admissible as inherently reliable).

9
Turning to the question of prejudice, the defendant was

required to show that, had he been properly advised of the

consequences of the plea, a decision to reject the plea would

have been rational under the circumstances. See Clark, 460

Mass. at 47. To prove rationality, the defendant was required

to show at least one of the following: (1) an available,

substantial ground of defense that he could have pursued; (2) a

reasonable probability that he could have negotiated a plea

bargain that did not result in dire immigration consequences; or

(3) special circumstances supporting the conclusion that he

placed, or would have placed, particular emphasis on immigration

consequences in deciding whether to plead guilty. Id. at 47-48.

If shown, the defendant must establish that "there is a

reasonable probability that a reasonable person in the

defendant's circumstances would have gone to trial if given

constitutionally effective advice." Lys, 481 Mass. at 7-8.

"The prejudice determination rests on the totality of the

circumstances, in which special circumstances regarding

immigration consequences should be given substantial weight."

Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015).

Although the defendant did not put forth any defense to the

charges, plea counsel's affidavit provided a detailed

explanation of how an alternate plea could reasonably have been

structured to avoid immigration consequences. He indicated that

10
the exact same guilty plea to the charges could have been

entered into with the sentence (or perhaps an even harsher

sentence) being attached to count 2 or 3, with a concurrent

sentence of less than one year on count 1.10 Although the

Commonwealth had the opportunity to present its own evidence on

this point, it did not. It did not even suggest in closing

argument that plea counsel's proposed alternative disposition

was not reasonably probable. The judge's refusal to consider

plea counsel's affidavit apparently led him to erroneously

conclude that the defendant failed to show a reasonable

probability that he could have negotiated an alternate plea.

Although the judge did recognize the defendant's special

circumstances of having immigrated to this country as a child,

having lived in the United States his entire life since that

time, and having no family in Portugal, the judge did not

acknowledge any other special circumstances, such as having a

10This is borne out by the fact that the tender of plea form
proposed a single disposition to resolve all three charges in
the complaint, without attaching the sentence to any particular
charge. Ultimately, the defendant received the same sentence on
each charge, with the sentences running concurrently. Since
count 1 did not include a minimum mandatory sentence, and no
apparent importance was given the particular charge attached to
the sentence, it appears that merely attaching the same
disposition to a different count would have been a reasonable
probability, particularly where all parties, including the
prosecutor, victim, and judge, acknowledged that the primary
concern was getting the defendant to address his problem with
alcohol.

11
wife and two children in the United States.11 Despite these

special circumstances, however, the judge determined that, in

the totality of the circumstances, the defendant was not

prejudiced. The judge concluded that, due to a 1995 conviction

of assault and battery by means of a dangerous weapon, the

defendant was already per se deportable as an aggravated felon.

He reasoned that since "it took [ICE] over [twenty] years to

begin [the defendant's] deportation proceedings from his earlier

convictions, . . . it is not irrational to believe that he would

have continued to take his chances that [ICE] 'would not catch

up to him' in the future."

Notwithstanding the assumption that the prior conviction of

assault and battery by means of a dangerous weapon constituted

an aggravated felony, the judge's totality of the circumstances

analysis was flawed by the mistaken premise that the defendant's

removal proceeding was based on a 1995 conviction at all. In

fact, the defendant's removal was premised solely on the 2020

conviction of strangulation or suffocation.12 Although the judge

11The judge appeared to discount the relevance of the
defendant's family ties because his wife and one of his children
did not themselves testify. We note that, like plea counsel,
the defendant's wife and that child were present and prepared to
testify on prior occasions. And of course the defendant's other
child -- the victim of the crimes -- did testify in support of
the defendant.

12Although the defendant had a number of prior convictions on
his record that may have had some immigration consequences, as

12
determined that the case against the defendant was strong, and

due to his criminal record, the defendant was likely to receive

a significantly harsher sentence after trial and conviction, his

maximum exposure on the charges was seven years; the plea that

the defendant accepted entailed an eighteen-month sentence if

the defendant failed his probationary conditions. The defendant

testified that he would not have pleaded guilty to avoid a

prison term if he knew that the plea itself would result in his

removal from his home country of over forty years, separation

from his wife and children, and exile to a country where he has

no family. There is nothing in the record that undermines this

testimony. Indeed, the position is an eminently rational one.13

Added to this is the likely prospect that plea counsel could

have fashioned a plea disposition that avoided dire immigration

consequences altogether, the defendant met his burden of showing

that he was prejudiced.

explained in the defendant's closing argument at the evidentiary
hearing and again in his brief on appeal, none of them subjected
him to mandatory removal at the time of his 2020 plea.

13In Lee v. United States, 582 U.S. 357 (2017), the Court
considered the issue of prejudice under similar circumstances,
where the case against the defendant was strong but where the
defendant had lived in the United States for nearly three
decades, had strong family connections to the United States, and
there was no evidence of any ties to his country of origin. In
the backdrop of those special circumstances, Court stated: "We
cannot agree that it would be irrational for a defendant in
Lee's position to reject the plea offer in favor of trial." Id.
at 371.

13
Conclusion. The order denying the motion to withdraw the

guilty plea is reversed, the judgments are vacated, and the

findings are set aside.

So ordered.

By the Court (Vuono, Singh &
Englander, JJ.14),

Assistant Clerk

Entered: February 12, 2024.

14 The panelists are listed in order of seniority.

14