Commonwealth v. Kayann D. Atkinson.

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-41

COMMONWEALTH

vs.

KAYANN D. ATKINSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a Boston Municipal Court judge's denial of his

motion to withdraw an admission to sufficient facts, the

defendant appeals seeking a remand on the basis that the

decision was unsupported by findings of fact or legal rationale.

We vacate and remand.

Background. In August 2002, the twenty-one year old

defendant was charged with engaging in sexual conduct for a fee

in violation of G. L. c. 272, § 53A. The following month, in

September 2002, the defendant admitted to sufficient facts and

the case was continued without a finding for three months, after

which the charge was dismissed. More than twenty years later,

in February 2024, the defendant was detained by Immigration
Customs Enforcement and placed into deportation proceedings due

to two convictions involving moral turpitude, one of which was

the dismissed charge of engaging in sexual conduct for a fee.

In March 2024, the defendant moved to withdraw his

admission. The motion was supported by affidavits of the

defendant and of his postconviction counsel. According to the

defendant's affidavit, he was a lawful permanent resident at the

time of his plea, but his plea counsel (since deceased) did not

inquire into his immigration status and therefore did not inform

him of the immigration consequences of his plea. And although

the judge gave him his alien warnings pursuant to G. L. c. 278,

§ 29D, the warnings did not advise the defendant that an

admission to sufficient facts would be considered a conviction

for purposes of immigration and therefore subject him to

deportation.

The defendant averred that he was born in Jamaica and

admitted to the United States at the age of eleven as a lawful

permanent resident to join his mother and other relatives who

had earlier immigrated. He stated that he no longer had any

ties to Jamaica and would face violence and persecution if

deported there. Had he known that deportation was a potential

consequence of his admission, the defendant asserted, he would

have gone to trial or explored another resolution of the case.

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After a nonevidentiary hearing,1 a judge denied the motion with a

margin endorsement: "After hearing and review, the motion is

denied."

Discussion. On appeal, the defendant argues that his

motion should be remanded to the motion judge because the one

sentence ruling failed to provide a factual or legal basis for

its denial.

A motion to withdraw an admission to sufficient facts is

properly brought under Mass. R. Crim. P. 30 (b), as appearing in

435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass.

497, 504 (1992). Under rule 30 (b), the judge hearing the

motion "shall make such findings of fact as are necessary to

resolve the defendant's allegations of error of law." Mass.

R. Crim. P. 30 (b). A judge's failure to make findings is not

fatal, however, if the ultimate conclusion is evident from the

record or where we are satisfied on the whole record that

manifest injustice will not result. See Commonwealth v. Melo,

95 Mass. App. Ct. 257, 263 (2019). We review for a significant

error of law or other abuse of discretion. See Commonwealth v.

Scott, 467 Mass. 336, 344 (2014).

1 The defendant was in federal custody out of State at the
time of the hearing. Postconviction counsel had made attempts
to secure the defendant's presence but was informed that it was
"impossible."

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Here, the defendant moved to withdraw his admission on two

separate grounds.

1. Unintelligent plea. The first ground was that his plea

was not intelligent because the defendant was misled by the

judge's alien warnings, which spoke to immigration consequences

of a conviction but not a continuance without a finding. A plea

is intelligent if it is tendered with knowledge of the elements

of the charges and the procedural protections waived by entry of

the plea. See Scott, 467 Mass. at 345. There is no claim on

appeal that the defendant did not know the elements of the crime

or the procedural protections he was waiving.

Rather, the defendant's claim is that the judge's

statutorily correct alien warnings misled him into believing

that immigration consequences only followed a conviction and not

a continuance without a finding. Generally, the absence of

advice as to collateral consequences of a plea does not render a

plea unintelligent. See Commonwealth v. Taron T., 104 Mass.

App. Ct. 219, 231-232 (2024). The defendant contends that

Padilla v. Kentucky, 559 U.S. 356, 366 (2010), held that

immigration consequences are not collateral. To the extent that

the Padilla collateral consequences analysis, based on the Sixth

Amendment right to counsel, can be imported to the due process

context, it is "indisputable that Padilla did not alter the

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general rule that lack of knowledge about the consequences of a

guilty plea renders such a plea invalid as unknowing or

involuntary only when those consequences are direct." Taron T.,

104 Mass. App. Ct. at 232. Here, however, we do not have any

findings as to whether the immigration consequences flowed

directly from the plea. Without findings of fact or a rationale

supporting the ruling, we are hindered in our ability to

properly review the defendant's claims on appeal. See Scott,

467 Mass. at 358.

2. Ineffective assistance. The defendant's second ground

to withdraw his plea -- ineffective assistance of counsel --

required him to establish that his attorney's performance fell

"measurably below that which might be expected from an ordinary

fallible lawyer," and that he suffered prejudice because of his

attorney's unprofessional errors. Commonwealth v. Lavrinenko,

473 Mass. 42, 51 (2015), quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). As to deficient performance, the defendant

alleged that his counsel never inquired into his immigration

status and never advised him that the offense he was admitting

to constituted a crime of moral turpitude; that the plea could

be a reason to deny him citizenship, to exclude him from the

United States, or to deport him; that he could lose his status

as a lawful permanent resident; and that he would be ineligible

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for asylum or other types of relief in the future. With respect

to prejudice, the defendant alleged that, had he known that

there were immigration consequences to his plea, he would have

explored alternatives or gone to trial, but he would not have

entered into the plea due to the importance to him of remaining

in the United States.

Facially, the defendant's affidavit made out a claim for

ineffective assistance of counsel. The failure to make

reasonable inquiry into a defendant's immigration status may be

sufficient to constitute deficient performance. See Lavrinenko,

473 Mass. at 51-52, citing Commonwealth v. Clarke, 460 Mass. 30,

45-46 (2011). Likewise, prejudice may be established by a

showing that, in the totality of the circumstances, there is a

reasonable probability that, but for counsel's errors, the

defendant would have rejected the plea. See Lavrinenko, supra

at 55. Special circumstances showing the defendant placed

particular importance on remaining within the United States

support the conclusion that the defendant would have rejected

the plea. Id.

The defendant's ineffective assistance of counsel claim,

however, is largely based on his own affidavit. Although a

judge may reject even an uncontradicted affidavit, see

Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016), it must

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be based on reasons pertinent to credibility. See Commonwealth

v. Torres, 469 Mass. 398, 403 (2014) (judge not required to

credit affidavit supporting motion for new trial, and may

evaluate "in light of factors pertinent to credibility,

including bias, self-interest, and delay"). Again, the absence

of findings and rulings hinders our ability to properly review

the defendant's claims on appeal. See Scott, 467 Mass. at 358

(reminding judges of importance of findings and rulings on

motions for new trial for purpose of appellate review).

We therefore vacate the order denying the defendant's

motion to withdraw his admission to sufficient facts and remand

the case for further proceedings consistent with this memorandum

and order.

So ordered.

By the Court (Rubin, J., Shin
& Singh, JJ.2),

Clerk

Entered: April 15, 2026.

2 The panelists are listed in order of seniority.

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