Commonwealth v. Oscar Aquino.

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-990

COMMONWEALTH

vs.

OSCAR AQUINO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In October 2018, the defendant, Oscar Aquino, pleaded

guilty in the District Court to assault and battery on a

household or family member and to threatening to commit a crime.

The following year, he submitted a motion to withdraw his guilty

plea on the basis that plea counsel had not advised him of the

immigration consequences of his guilty plea. See Padilla v.

Kentucky, 559 U.S. 356 (2010). The same judge who had accepted

his plea denied that motion, and the defendant now appeals. We

affirm.

Background. During the plea colloquy, the prosecutor

recited the following facts, all of which the defendant admitted

to be true. On February 26, 2018, the defendant and the victim

got into an argument over the defendant's use of the victim's

car. The defendant became violent, and according to the victim,
slapped her multiple times in the face, pushed her to the floor,

and threatened to kill her. The victim reported the incident to

the police, to whom she also disclosed that the defendant had "a

habit of physically abusing her whenever he gets mad" for the

past year and a half. The officers took a photograph of the

victim's face, which showed an abrasion running down the right

side of her face.

The defendant was arrested the next day and charged with

assault and battery on a household or family member and

threatening to commit a crime. In March 2018, the defendant was

charged with a violation of a G. L. c. 209A order after he

contacted the victim. He was held without bail for 143 days

after a judge determined he was a danger to the community under

G. L. c. 276, § 58A.

As noted, the defendant pleaded guilty to the assault and

battery and to threatening to commit a crime.1 During the plea

colloquy, the judge asked him if he had been forced or pressured

to plead guilty, to which he responded that he had not. The

judge also advised the defendant that it was "practically

inevitable" that he would suffer immigration consequences if

1 In consideration for the guilty plea, the 209A violation
charge was dismissed by the Commonwealth.

2
either of the offenses to which he was pleading guilty mandated

deportation.2 The defendant responded that he understood.

In his 2019 motion to withdraw his plea, the defendant

argued that plea counsel did not advise him that crimes of

domestic violence are deportable offenses. See 8 U.S.C.

§ 1227(a)(2)(E)(i); 18 U.S.C. § 16. He averred that if he had

known the immigration consequences, he would have gone to trial

instead. Despite having admitted to all of the facts included

in the Commonwealth's proffer at the plea hearing, the defendant

submitted an entirely different version in an affidavit

submitted in support of his motion. In response to the

defendant's motion, the Commonwealth submitted additional

materials to the District Court, including evidence that the

victim played for the officers voicemails from the defendant in

which he threatened to have her killed.3

On April 29, 2019, the judge held an evidentiary hearing on

the defendant's motion. There, the defendant denied ever having

struck the victim and claimed that she had instigated the

argument. He also offered various reasons why he thought she

might lie about this. According to him, he admitted that he had

2 The judge's noncitizen warning comported with the
requirements of G. L. c. 278, § 29D, and Mass. R. Crim. P. 12
(c) (3) (A) (iii), as appearing in 486 Mass. 1501 (2020).

3 The victim later refused to give the recordings to the
police.

3
struck and threatened the victim only because plea counsel had

pressured him to do so and then advised him to lie about this to

the judge.4

The defendant testified that plea counsel did not fully

inform him of the immigration consequences of pleading guilty,

and that, had he been informed, he never would have pleaded

guilty. He recounted his substantial connections to the United

States: he had full-time employment with a substantial annual

income, owned a multifamily home that provided rental income,

and had family members who had also lawfully immigrated and

lived in the same city.

Plea counsel also testified. In recounting his plea

discussions with the defendant, he stated that the defendant's

primary concern was getting out of the house of correction.

Plea counsel stated that he did not "recall [immigration

consequences] being a big issue that day for [the defendant],"

and that the defendant had told him he had consulted an

immigration attorney. He stated that although he was prepared

to go to trial, the "problematic" photograph of the abrasion on

4 The defendant testified that when plea counsel discussed
the plea deal with him at the house of correction where he was
held, the attorney had another inmate translate for him. On
January 26, 2021, plea counsel testified that he relied on an
inmate to translate only one sentence and used a court
interpreter for the rest of the plea discussion with the
defendant.

4
the victim's face that police took on the day of the incident

concerned him.

The judge credited plea counsel's testimony and discredited

the defendant's. She nevertheless found that plea counsel's

performance had been ineffective because -– as the Commonwealth

conceded -- "[a]dvising a client to consult with an immigration

attorney when deportation is presumptively mandatory is

insufficient."5 The judge further ruled, however, that the

defendant had not been prejudiced by plea counsel's deficient

advice. She specifically found that the Commonwealth's case was

strong and that the defendant lacked a substantial defense. She

further found that the defendant had not demonstrated the

possibility of negotiating a better plea deal, or the existence

of special circumstances sufficient to induce him to go to

trial.

Discussion. To prevail on a Padilla claim, a defendant

must show that plea counsel's performance was both defective and

prejudicial. Padilla, 559 U.S. at 366, 369, 374, citing

Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish prejudice, a defendant must show that, but for

counsel's defective advice, the defendant would have not pleaded

guilty and that such a decision would have been "rational under

5 The Commonwealth also conceded the ineffective performance
of counsel at the hearing.

5
the circumstances." Commonwealth v. Clarke, 460 Mass. 30, 47

(2011), quoting Padilla, 559 U.S. at 1485. A defendant may do

this by showing that:

"(1) he had 'an available, substantial ground of defence'
that would have been pursued if he 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 placed, or would have placed,
particular emphasis on immigration consequences in deciding
whether to plead guilty."

Clarke, supra at 47-48, quoting Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), and Hill v. Lockhart, 474 U.S. 52, 60

(1985). We address each of the three ways of showing prejudice

in order.

1. Substantial defense. In finding the case against the

defendant "strong," the judge noted that the victim was

available and willing to testify at trial, and that the police

had a photograph to corroborate her testimony by showing a

contemporaneous injury to her face (a photograph that defense

counsel himself characterized as "problematic").6 There was also

6 The defendant does not include the photograph to which
plea counsel had referred in his record appendix. In an
assented-to post-oral argument motion, the defendant has asked
us to accept the photograph as a late-filed exhibit that the
judge referenced in her decision. However, the photograph was
never offered as an exhibit, either during the plea colloquy or
at the evidentiary hearing on the defendant's motion to withdraw
his plea. In addition, it is not at all clear on the record

6
evidence before the judge that the police had listened to

voicemails that recorded the defendant threatening to have the

victim killed.7

The defendant appears to assume that he would have had a

substantial defense simply because he claims he would have

testified at trial and told a different account of the incident.

However, this ignores the fact that the judge (who also had

accepted the defendant's plea) found the defendant not to be a

credible witness.8 We discern no clear error in the judge's

before us that the judge ever herself viewed the photograph,
though it is possible that the photograph was included as part
of the police reports the Commonwealth submitted as attachments
in its opposition to the defendant's motion to withdraw his plea
(those police reports are not included in either the defendant's
record appendix or the Commonwealth's supplemental appendix).
If the photograph itself was not before the judge, it cannot
properly be part of the appellate record. In the end, we need
not resolve this question because we conclude that the actual
photograph provides no appreciable assistance to the defendant's
arguments on appeal. We allow the defendant's motion to the
extent necessary to allow us to reach that conclusion and
otherwise deny it as moot.

7 This evidence came from police reports which were
submitted by the Commonwealth to the District Court. The judge
had the benefit of seeing the police reports, which the
Commonwealth had submitted with its opposition to the motion to
withdraw the plea, but the defendant has not included them in
his record appendix.

8 The parties have not briefed the extent to which the
Commonwealth could have impeached the defendant at any retrial
with the factual admissions he made at the plea hearing. We do
not rely on that, while noting the open issue.

7
finding that the defendant lacked a substantial defense at

trial.

2. Alternative plea agreement. In his affidavit

accompanying his motion, the defendant made a bare assertion

that he might have been able to negotiate a better plea

agreement. However, he never supported that assertion with

evidence, such as the plea negotiation policies or practices of

the District Attorney. The defendant does not press the issue

on appeal and in fact acknowledges that "it is likely he would

not have been able to negotiate a better plea deal . . . ." In

any event, as the Commonwealth notes, pleading guilty to any

charges involving domestic violence would have resulted in the

same immigration consequences. There was no clear error in the

judge's finding that the defendant would not have been able to

negotiate a better plea agreement.

3. Special circumstances. The defendant further argues

that the judge erred when she found that the defendant did not

have special circumstances at the time of the plea agreement

that would have caused him to opt for a trial. As the defendant

accurately points out, he had strong reasons for wanting to

remain in the United States at the time he pleaded guilty: a

well-paying job, a home that generated rental income, and family

members living nearby. In addition, as a legal permanent

8
resident, the defendant had a viable path to United States

citizenship.

Nevertheless, the mere presence of special circumstances is

not enough to establish prejudice. A defendant must also show,

as a matter of fact, that those special circumstances would have

caused him to go to trial. See Commonwealth v. Lavrinenko, 473

Mass. 42, 59 (2015) (the existence of special circumstances does

"not require the conclusion that there is a reasonable

probability that the special circumstances would have caused the

defendant to choose to go to trial"). The judge's decision

reveals that she both understood the applicable law and

acknowledged all of the facts that the defendant marshaled in

his favor.9 In the end, however, she found -- as a matter of

fact -- that despite the defendant's interest in remaining in

the United States, he still would have pleaded guilty. Although

the defendant testified that he would not have pleaded guilty

had he understood the immigration consequences, it was up to the

judge whether to credit that testimony. See Commonwealth v.

Scott, 467 Mass. 336, 344 (2014) (citation omitted) (hearing

judge is "final arbiter on matters of credibility"). The

9 The defendant highlights the judge's reference to the
absence of any evidence that he would suffer harm if he returned
to his native Dominican Republic. This was an appropriate
factor for the judge to consider. See Lavrinenko, 473 Mass. at
58. Nothing suggests that the judge believed that the defendant
could not show special circumstances absent such proof.

9
judge's finding also enjoys support in plea counsel's testimony

that he "[did not] recall [immigration consequences] being a big

issue" for the defendant on the day the defendant entered the

plea agreement, and that the defendant's "primary objective at

the time" was to get out of the house of correction. The

judge's finding that the defendant would not have opted for

trial had plea counsel adequately informed him of the

immigration consequences was not clearly erroneous.

Order denying motion to
withdraw guilty plea
affirmed.

By the Court (Milkey,
Massing & Neyman, JJ.10),

Assistant Clerk

Entered: May 13, 2024.

10 The panelists are listed in order of seniority.

10