Commonwealth v. James Kiptanui.

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-1054

COMMONWEALTH

vs.

JAMES KIPTANUI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, James Kiptanui, appeals from the denial of

his motion to withdraw his guilty pleas based on ineffective

assistance of plea counsel under art. 12 of the Massachusetts

Declaration of Rights and Commonwealth v. Lavrinenko, 473 Mass.

42 (2015). We vacate the orders denying his motion and remand

for an evidentiary hearing.

Background. The defendant, a refugee from Kenya, pleaded

guilty in 2018 to assault and battery on a family or household

member, in violation of G. L. c. 265, § 13M (a), and assault and

battery by means of a dangerous weapon (a knife), in violation

of G. L. c. 265, § 15A (b). Two years later, represented by new

counsel, he filed a motion to withdraw his guilty pleas on the

ground that plea counsel failed to inquire into his immigration

status and, as a result, failed to advise him that the
convictions would result in presumptively mandatory deportation

proceedings and deprive him of the ability to obtain

discretionary relief from removal. The defendant supported his

motion with his own affidavit and that of plea counsel. The

defendant stated that he did not remember plea counsel asking

him about his immigration status, and that plea counsel did not

provide specific advice on how the pleas would affect his

refugee status, but that counsel did warn him in general terms

that his pleas might have adverse immigration consequences.

Plea counsel averred that he had no specific memory of what he

told the defendant. Although his standard practice was to ask

clients about their citizenship, he was unaware that the

defendant was not a citizen, he did not remember if he asked the

defendant about his citizenship, and he did not remember the

defendant telling him he was not a citizen.

The same judge who had taken the defendant's guilty pleas

held a nonevidentiary hearing on the defendant's motion. At the

hearing it came to light that a few months before the defendant

pleaded guilty, the Department of Homeland Security (DHS) had

initiated deportation proceedings against him based on a 2012

Ohio conviction for grand theft of a motor vehicle. The

defendant was not in DHS custody at the time of his guilty

pleas. Indeed, it appears that he was being held in the house

of correction on this matter, his bail having been revoked for

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failing to appear at the originally scheduled trial date, when

he was served with the notice to appear for removal proceedings.

The judge denied the motion, finding that the defendant had

failed to demonstrate that he was unaware of the potential

immigration consequences of his guilty pleas. The judge did not

credit the defendant's assertion that he did not understand the

mandatory consequences of his guilty pleas, inferring that he

would have known the consequences based on the already pending

removal proceedings against him. The judge noted that she had

given the defendant the required statutory immigration warnings

and that the defendant admitted that counsel had informed him

that the guilty pleas might have immigration consequences;

however, she did not credit the defendant's statement that there

was no further discussion of the consequences. The defendant

timely filed a notice of appeal.

After the defendant had filed his appellate brief, the

Commonwealth, with the defendant's assent, obtained a stay of

the appeal to permit the parties "to resolve the matter in the

District Court." The parties then filed a joint motion to

reconsider, asking the judge to "[m]ake specific findings as to

how plea counsel advised the defendant," whether this advice was

constitutionally adequate, and, if not, whether the defendant

was prejudiced.

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The judge held a second nonevidentiary hearing. At the

hearing, the defendant, through counsel, conceded that he would

have difficulty proving prejudice arising from plea counsel's

failure to advise him about deportation, given that the

defendant was already in deportation proceedings based on the

Ohio conviction. The defendant continued to press his claim

that plea counsel was ineffective for failing to advise him that

pleading guilty to a crime of violence would prevent him from

obtaining discretionary relief from removal and that this

failure resulted in prejudice. The judge again found that the

defendant had been advised of immigration consequences in

general terms, but added that plea counsel failed to advise the

defendant about how the pleas would affect his immigration

status because the defendant failed to advise counsel about the

pending deportation proceedings. Again the judge denied the

motion, finding that it foundered on the defendant's failure to

prove the first prong of the Commonwealth v. Saferian, 366 Mass.

89, 96 (1974), standard. This appeal followed.

Discussion. A motion to withdraw a guilty plea is treated

as a motion for a new trial. See Lavrinenko, 473 Mass. at 47.

"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. Lys, 481 Mass.

1, 4 (2018), quoting Lavrinenko, supra.

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"[E]ven where, as here, a refugee is inadmissible and

deportable, the refugee may still seek an adjustment of status

from refugee to lawful permanent resident by applying for a

waiver of inadmissibility." Lavrinenko, 473 Mass. at 49-50,

citing 8 U.S.C. § 1159(c) (2012). To competently advise the

defendant about the immigration consequences of his guilty

pleas, it was essential for plea counsel to understand the

defendant's status. See Lavrinenko, supra at 53-54.

"Therefore, the failure of a criminal defense attorney to make a

reasonable inquiry of the client regarding his or her

citizenship and immigration status is sufficient to satisfy the

deficient performance prong of the ineffective assistance

analysis." Id. at 53.

The defendant argues that he presented a substantial

showing that plea counsel did not conduct sufficient inquiry

into his immigration status or provide the advice required by

Lavrinenko and asks that we remand for an evidentiary hearing.

A judge must hold an evidentiary hearing on a new trial motion

if the defendant presents a "substantial issue," an inquiry that

focuses on the seriousness of the issue presented and the

adequacy of the defendant's showing. See Lys, 481 Mass. at 6;

Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015). A claim of

ineffective assistance based on a failure to explain immigration

consequences qualifies as a serious issue. See Lys, supra;

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Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Accordingly,

we focus on the adequacy of the defendant's showing.

A judge considering a motion to vacate a guilty plea has

considerable discretion in assessing the adequacy of the

defendant's showing, including whether to credit or discredit

the defendant's affidavits and materials. See Lys, 481 Mass. at

5-7; Vaughn, 471 Mass. at 405. "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.'" Lys, supra at 5, quoting Denis, 442

Mass. at 629. A judge is not required to accept a defendant's

affidavit as true, even if uncontroverted. See Lys, supra at 5;

Vaughn, supra.

Here, the defendant's showing raised doubts as to whether

plea counsel made a sufficient inquiry into his refugee status

or provided adequate advice concerning the effect of a guilty

plea on his prospects for discretionary relief from removal.

The judge's findings to the contrary cannot fairly be drawn from

the record.

Plea counsel had no memory of discussing the defendant's

citizenship. His affidavit did not establish that he ever

learned of the defendant's refugee status or pending removal

proceedings -- or advised him accordingly. The judge made no

finding that plea counsel gave the defendant any advice other

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than that "a plea might result in immigration consequences." In

her findings after the first hearing, the judge discredited the

defendant's assertion that plea counsel did not provide any

further advice specific to the defendant's circumstances, but

the judge's disbelief cannot establish that plea counsel did in

fact provide such advice. Disbelief of a statement in an

affidavit is not proof of the opposite. See Commonwealth v.

Jackson, 468 Mass. 1009, 1012 (2014); Commonwealth v. Bruno-

O'Leary, 94 Mass. App. Ct. 44, 51 (2018).

Indeed, on reconsideration the judge found that plea

counsel did not provide such advice, blaming the failure on a

finding that the defendant did not share with counsel that he

was already in removal proceedings. However, it was incumbent

upon plea counsel to inquire about the defendant's status; it

was not the defendant's responsibility to determine which

factors had legal significance and to so advise counsel. See

Lavrinenko, 473 Mass. at 53.1 The judge also found that the

defendant was aware of the potential immigration consequences of

his guilty pleas, not from any advice he received from plea

1 Although plea counsel did not represent the defendant at his
bail review hearing in Superior Court, which took place about a
month before the guilty pleas, the findings and order denying
review of bail set forth that the defendant was a "legal
resident/non-citizen" and that he had a prior conviction in Ohio
for aggravated burglary. This information should have put
counsel on notice to inquire further.

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counsel, but from the fact that his Ohio conviction had resulted

in removal proceedings. While the defendant's prior knowledge

might go to the assessment of prejudice, it has no bearing on

the quality of advice plea counsel provided.

The Commonwealth suggests that we could affirm the denial

of the defendant's motion on a ground not reached by the judge:

even if the defendant could demonstrate that plea counsel's

advice was constitutionally deficient, he cannot demonstrate

that he suffered prejudice because his Ohio conviction already

deprived him of the possibility of obtaining discretionary

relief from removal, regardless of the outcome of this case.

See Lavrinenko, 473 Mass. at 59 n.20 ("A defendant who can

eliminate the risk of deportation through an acquittal is more

likely to insist on going to trial than a defendant who is

deportable regardless of the outcome at trial").

While we are free to affirm on grounds different from those

relied on by the judge, those grounds must be "supported by the

record" and "the facts found by the judge." Commonwealth v. Va

Meng Joe, 425 Mass. 99, 102 (1997). The defendant's ability to

prove prejudice in this case involves a number of interrelated

factors, including whether the defendant meets the requirements

for adjustment of status as a refugee under 8 U.S.C. § 1159(b),

and whether the defendant would be considered a "violent or

dangerous individual" on the basis of the Ohio conviction,

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Lavrinenko, 473 Mass. at 62, making him ineligible for

adjustment of status pursuant to 8 U.S.C. § 1159(c). See Lys,

481 Mass. at 7-8 (setting forth nonexhaustive list of factors

judge should consider in determining "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").

As these factors are not apparent from the record and briefing

before us, we are unable to affirm the denial of the motion for

failure to establish prejudice.

Conclusion. The defendant's motion to vacate his guilty

pleas should not have been denied without an evidentiary

hearing, and the orders denying that motion are vacated. We

remand the case for an evidentiary hearing and for findings

concerning exactly what plea counsel advised the defendant,

whether this advice was constitutionally adequate, and, if not,

whether the defendant can demonstrate prejudice.

So ordered.

By the Court (Meade,
Massing & Sacks, JJ.2),

Assistant Clerk

Entered: March 11, 2024.

2 The panelists are listed in order of seniority.

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