Commonwealth v. Taron T., a juvenile

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22-P-1081 Appeals Court

COMMONWEALTH vs. TARON T., a juvenile.

No. 22-P-1081.

Berkshire. December 1, 2023. – May 24, 2024.

Present: Wolohojian, Milkey, & D'Angelo, JJ.1

Alien. Indecent Assault and Battery. Assault and Battery by
Means of a Dangerous Weapon. Assault with Intent to Rape.
Youthful Offender Act. Constitutional Law, Plea,
Assistance of counsel. Due Process of Law, Plea,
Assistance of counsel. Practice, Criminal, Plea,
Assistance of counsel.

Indictments found and returned in the Superior Court
Department on October 31, 2013.

A motion to withdraw a plea of guilty, filed on April 1,
2021, was heard by David B. Paradis, J., and a motion for
reconsideration was considered by him.

Eva G. Jellison for the juvenile.
Patrick Sadlon, Assistant District Attorney, for the
Commonwealth.

1 Justice Wolohojian participated in the deliberation on
this case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
2

MILKEY, J. In 2013, the juvenile, then sixteen, sexually

assaulted three other boys at a high school soccer camp. He

eventually pleaded to being adjudicated a youthful offender with

respect to two counts of indecent assault and battery of a

person fourteen years or older, and three counts of assault and

battery by means of a dangerous weapon (ABDW). As part of the

plea agreement, the juvenile also agreed to be adjudicated

delinquent with respect to two counts of assault with intent to

rape a child. In 2021, the juvenile filed a motion to withdraw

his youthful offender plea on the ground that his counsel had

not provided him adequate advice about the immigration

consequences of the plea. See Padilla v. Kentucky, 559 U.S.

356, 359-360, 374 (2010). After holding an evidentiary hearing,

a Juvenile Court judge, who was not the plea judge, denied that

motion. We agree with the motion judge that the juvenile is

unable to demonstrate prejudice from any inadequate advice given

by plea counsel. We also are unpersuaded by the juvenile's

argument that his plea was not knowing and voluntary. We

therefore affirm.

Background. The juvenile is a Brazilian citizen who came

to the United States with his mother on a tourist visa in 2000.

Overstaying that visa, he settled in Somerville where he joined

a soccer team at his high school. In the summer of 2013, as a
3

rising junior, the juvenile attended a soccer camp in Otis with

his team.

1. The sexual assaults. On August 25, 2013, the juvenile,

along with two cohorts (codefendants), went to the freshman

cabin where they sexually assaulted three other students.

Unlike most sexual assaults, there were many eyewitnesses to the

attack, at least eight of whom were interviewed by the police

and testified to the grand jury. There was also photographic

evidence of the attack in progress. Although eyewitness

accounts of the incident differed in some respects, they were

consistent with respect to the most significant facts. At the

plea hearing, the prosecutor provided a proffer about the sexual

assaults. We begin by summarizing that account.

When the juvenile and his codefendants entered the freshman

cabin, they announced that "[t]here's going to be a beat down"

(or words to that effect). Then, armed with a broomstick, they

proceeded to attack each of the three victims (to whom we refer

by pseudonyms). The juvenile assaulted Colin with the

broomstick, pressing it against his buttocks. The juvenile then

tried to pull down Juan's pants, and he touched Juan's genitals

through his clothing. The third victim, Manny, fared the worst.

With Manny's shorts pulled down, the juvenile "took the broom

and placed it between [Manny's] buttocks near his anal opening."

This caused Manny to bleed, and his blood was found on the cabin
4

floor. Other boys observed that Manny's rectal area "was red,

swollen, abraded, scratched, bleeding, etcetera."

At the plea hearing, the juvenile admitted to the truth of

the factual account recited by the prosecutor. Through his

motion to withdraw his plea, he did not seek to disavow those

admissions, but brought additional facts to the judge's

attention, including details about the crimes. The Commonwealth

likewise submitted additional factual material that went

significantly beyond the sanitized version of events offered at

the plea hearing. As a result of the parties' respective

efforts, the motion judge had before him an enormous amount of

documentary material, including, among other items, police

reports, witness interviews, grand jury minutes, various

proffers as to experts who might have testified if the matter

had gone to trial, and materials related to the juvenile's

immigration proceedings. In addition, both in the Juvenile

Court and on appeal, the juvenile cited to numerous scholarly

articles. We briefly review some of the additional material,

but do so only to the extent necessary to address the juvenile's

arguments on appeal.

2. Hazing. The juvenile seeks to portray the soccer camp

incident not as a sexual assault, but as a product of a "culture

of hazing" prevalent in youth sports. Borrowing from the

scholarly literature, he adopts the following definition of
5

hazing as "any activity expected of someone joining a group that

humiliates, degrades, abuses, or endangers, regardless of the

person's willingness to participate."2 See Parks & DeLorenzo,

"Hazing in High School Athletics: An Analysis of Victims," 29

Marq. Sports L. Rev. 451, 480 (2019). The juvenile maintains

that his actions were driven not by sexual desire but by "an

intent tied to the hazing culture." He also argues that, as a

victim of past hazing himself, such behavior had become

"normalized" for him. The juvenile points to two hazing experts

whom he could have called in his defense had the case gone to

trial.

3. Consent. The juvenile also contends that had there

been a trial, he might have been able to convince jurors that

Manny consented to the indecent assault and battery with the

broomstick. Although that is a dubious proposition, as

discussed below, we turn now to a fuller account of the attack

on Manny, as described by him and other eyewitnesses. According

to them, the juvenile approached Manny and told him that he was

"gonna get it now." The juvenile then gave Manny the choice of

"get[ting] the broom up [his] behind" or having "Icy Hot

2 Neither party has discussed the fact that the Legislature
itself has both defined "hazing" and made it a crime. See G. L.
c. 269, § 17.
6

[rubbed] all over [his] testicles and [his] behind."3 Manny at

first refused to make that choice, but later reluctantly

indicated his preference for the broomstick. The juvenile then

told Manny, whose pants were pulled down, to bend over, and then

"with all his force pulled –- put it in."4

4. Penetration. In his proffer at the plea, the

prosecutor made no claim that the juvenile penetrated Manny's

anus with the broomstick. That issue would have been relevant

to whether the juvenile had committed forcible rape of a child

(an offense for which the juvenile had been indicted but that

was nol prossed as part of the plea agreement). The documentary

evidence before the motion judge included statements by Manny

that he believed there was penetration, and of other witnesses

describing Manny's injuries to include a sore like "a really,

really big blister . . . like a really big bubble that was

really, really bright red." As mentioned above, there was also

blood on the floor of the cabin. However, a doctor who examined

3 We take judicial notice that Icy Hot is marketed as a pain
relief cream containing menthol. See https://www.icyhot.com/en-
us/products/creams-rubs/pain-relief-cream
[https://perma.cc/734S-BRUY].

4 The witness accounts of the attacks on the other two
victims similarly include some graphic detail that goes beyond
the plea proffer.
7

Manny three days later noted that the broomstick "was not really

inserted rectally but scraped [Manny]."5

5. The plea agreement. A grand jury indicted the

juvenile, as a youthful offender, for one count of rape of a

child with force, two counts of assault with intent to rape,

three counts of ABDW, and one count of indecent assault and

battery on a person over the age of fourteen. As noted, on

April 6, 2015, the juvenile pleaded to being adjudicated a

youthful offender with respect to two counts of indecent assault

and battery, and three counts of ABDW, and to being adjudicated

delinquent on two counts of assault with intent to rape a child.

Before accepting the juvenile's plea, the plea judge engaged in

the standard colloquy designed to ensure the plea was knowing

and voluntary. This colloquy included the judge's warning to

the juvenile "that if [he was] not a citizen of the United

States, that under federal law, a plea that you are a youthful

offender, okay, to the offenses, may result in deportation and

exclusion from the United States of America or a denial of

naturalization." See G. L. c. 278, § 29D. The juvenile

affirmatively indicated that he understood this. Pursuant to

the plea agreement, the juvenile was committed to the Department

5 The soccer coaches who led the camp learned about the
assaults two days later. They immediately informed the police,
and Manny was taken to the hospital.
8

of Youth Services (DYS) until he turned twenty-one, and he

received a suspended prison sentence of three to four years.

6. Plea counsel's advice on immigration consequences.

Although plea counsel's principal focus was keeping the juvenile

out of jail, he knew that the juvenile faced possible

immigration repercussions from his criminal proceedings. In

fact, the United States Immigration and Customs Enforcement

(ICE) arrested the juvenile for overstaying his tourist visa

shortly after his arrest on the State charges. See 8 U.S.C.

§ 1227(a)(1)(B). Thus, the juvenile and defense counsel knew he

was facing potential deportation while his plea agreement was

negotiated.

Plea counsel consulted with an attorney at the Committee

for Public Counsel Services Immigration Impact Unit about the

immigration consequences of the charges and of possible plea

agreements. Through this process, plea counsel learned that, at

the time, it was unclear whether youthful offender adjudications

would be considered "convictions" for immigration purposes.

This created some uncertainty about the immigration consequences

of the juvenile's being adjudicated a youthful offender (whether

by plea agreement or otherwise). However, plea counsel was

aware that, assuming that a plea to being a youthful offender

did not automatically bar the juvenile from being allowed to

stay, his fate still would depend on the discretion of a Federal
9

immigration judge. This was a serious concern because of the

nature of the underlying offenses, all of which are considered

crimes of "moral turpitude" under Federal immigration law. See

8 U.S.C. § 1182(a)(2)(A) (admission of crime of moral turpitude

or elements that comprise one can be independent ground of

inadmissibility).6 As plea counsel put it, he "knew that [the

juvenile] would be rolling the dice on immigration consequences

by taking the . . . plea" deal.

In an affidavit submitted with the juvenile's new trial

motion, plea counsel recited that he had "told [the juvenile]

about the potential immigration consequences" of pleading to

being a youthful offender. Plea counsel clarified during the

evidentiary hearing that his advice was not "super specific,"

but that he "always" advised his clients "to assume the

worst . . . [s]o, for the purposes of this discussion, you know,

'Mr. Client, assume that you're getting deported.'" That plea

counsel painted a decidedly pessimistic picture of the

6 Crimes involving moral turpitude are not defined by
statute, but are generally any crime that "involve[s] both
reprehensible conduct and some degree of scienter, whether
specific intent, deliberateness, willfulness, or recklessness."
Matter of Silva-Trevino, 24 I.&N. Dec. 687, 689 n.1 (A.G. 2008),
vacated on other grounds by Matter of Silva–Trevino, 26 I.&N.
Dec. 550, 553 (A.G. 2015). Crimes involving moral turpitude
have included rape, Matter of Z, 7 I.&N. Dec. 253 (BIA 1956);
indecent assault and battery on a person fourteen years or
older, Maghsoudi v. INS, 181 F.3d 8 (1st Cir. 1999); and ABDW,
Matter of O, 3 I.&N. Dec. 193 (BIA 1948).
10

immigration consequences of a plea agreement is confirmed by

notes taken by a social worker assigned to the juvenile as a

"social services advocate."7 Those notes, which provide a

contemporaneous account of the juvenile's state of mind, state

in pertinent part as follows:

"met w[ith] [the juvenile] at his home . . . he was very
relaxed and hopeful that he would be able to plea[d] guilty
on Monday . . . he was advised of the immigration law
uncertainty . . . [plea counsel] advised him flat out
assume under any plea that he would be deported . . . he
was well aware and accepting of this . . . he is ready to
move on . . . has no problem with proposed resolution . . .
commitment to 25."

As the motion judge found, the social worker's notes establish

that the juvenile understood the potential consequences of his

plea and was at peace with them.

7. Immigration proceedings. In 2017, when his commitment

to DYS had ended, the juvenile was re-arrested by ICE. In the

ensuing Federal proceedings, the juvenile pursued discretionary

relief to stay in the United States on various grounds,

including a request that he be given status as a permanent

resident based on his ties to his mother and stepfather.8

Although the stated reason for the juvenile's arrest by ICE was,

7 The juvenile included those notes in a voluminous appendix
that he submitted with his motion for new trial. He raises no
claim that the judge was limited in what use he could make of
them.
8 His stepfather was an American citizen, and his mother was

in the process of receiving her "green card."
11

as before, for overstaying his visa, the proceedings focused on

the sexual assaults on which his plea was based. The

immigration judge ruled that Massachusetts youthful offender

adjudications are not convictions under immigration law, but she

nevertheless denied the juvenile the discretionary relief that

would have allowed him to avoid deportation. She considered

various positive factors that the juvenile had brought forward,

but in the end deemed these outweighed by the nature and

severity of the sexual assaults, which the juvenile

independently admitted to having committed in the immigration

proceedings.

Having overstayed his visa and having been deemed

inadmissible to remain, the juvenile was deported to Brazil in

2018. He since reentered the United States unlawfully and he

was once again arrested by ICE. The current status of his

immigration proceedings is not clear.9

Discussion. On appeal, the juvenile argues that his plea

to being a youthful offender should be vacated because he did

not understand its immigration consequences. He advances two

theories in support of that claim. The first, based on Padilla,

9 The juvenile suggested at oral argument that Federal
immigration officials may be awaiting the outcome of the appeal
before us. Regardless of whether this is true, and regardless
of whether the appeal has any bearing on the outcome of any
pending immigration proceedings, the controversy before us does
not appear to be moot.
12

is that his plea counsel was ineffective by failing to inform

him of the clear consequences of the plea. The second is that

his plea was not knowing or voluntary and therefore a violation

of due process. We address these arguments in turn.

1. Ineffective assistance of counsel. Under Padilla, an

attorney must inform a defendant of the clear immigration

consequences of a guilty plea in order to ensure the defendant's

Sixth Amendment right to effective assistance of counsel.

Padilla, 559 U.S. at 369. To succeed on a Padilla claim, a

defendant must show both that the advice counsel provided was

deficient, and that the defendant was prejudiced by counsel's

errors. Id. at 366, citing Strickland v. Washington, 466 U.S.

668, 687 (1984). To show prejudice in this context, a defendant

must demonstrate "a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty."

Commonwealth v. Clarke, 460 Mass. 30, 47 (2011), quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

A. Adequacy of advice. As noted, at the time the juvenile

changed his plea, he already was facing deportation for having

overstayed his tourist visa. However, as the subsequent

immigration proceedings well illustrate, State charges can

result in the loss of discretionary defenses to deportation even

if they are not the nominal reason why deportation proceedings

were initiated. From the perspective of someone in the
13

juvenile's shoes, the key question is whether and, if so, how

resolution of the criminal charges will affect his ability to

stay in the United States. The Supreme Judicial Court has

stated that a "substantial risk of losing a viable opportunity

for discretionary relief is a clear consequence" of which

counsel should inform the juvenile. Commonwealth v. Lavrinenko,

473 Mass. 42, 63 n.25 (2015). See Commonwealth v. Lopez, 96

Mass. App. Ct. 34, 39 n.8 (2019) (Wendlandt, J.) ("in some

circumstances . . . it may constitute ineffective assistance not

to warn about the specific inadmissibility consequences of a

guilty plea").

The extent of a plea counsel's obligations under Padilla is

tied to the clarity of the law regarding the immigration

consequences of the plea. See Commonwealth v. DeJesus, 468

Mass. 174, 180-181 (2014). Where the consequences are clear, as

in DeJesus, it is not enough for plea counsel to provide general

advice that the juvenile may face deportation. Id. at 180-182.

It follows, however, that where the consequences are not clear,

counsel may have more latitude in the advice given. Here, in

the face of uncertainty in the applicable law, plea counsel told

the juvenile that he should assume he would be deported if he
14

tendered his youthful offender plea.10 The motion judge

concluded that, by communicating to the juvenile that he faced

severe risks of being deported from his plea, plea counsel

satisfied his obligations under Padilla. Insofar as plea

counsel characterized the immigration risks that the juvenile

faced if he tendered the plea, we agree with the judge that this

did not amount to ineffective assistance.

We are not yet done, however, because the risks posed by

the plea itself make up only half the equation. Someone

deciding whether to plead guilty may not be in a position to

assess fully the immigration consequences of doing so unless

that person also adequately has been informed of the immigration

risks of proceeding to trial. Otherwise, a defendant may not

have a point of comparison to weigh the consequences of pleading

guilty. Accordingly, plea counsel advising noncitizen clients

whether to plead guilty (or in this case, being a youthful

offender) should consider and discuss with their clients the

immigration consequences of going to trial. See Commonwealth v.

Marinho, 464 Mass. 115, 124-127 (2013).

10With the benefit of hindsight, we note that, if anything,
the advice plea counsel provided was unduly pessimistic.
Although the juvenile ultimately was unable to convince the
immigration judge to grant him the discretionary relief he
sought, he had -- at the time he offered his plea -- a
potentially viable path to remaining in the country.
15

In the case before us, plea counsel -- whose testimony the

motion judge generally appears to have credited -- unequivocally

testified that he never discussed with his client what

immigration consequences the juvenile would face had he gone to

trial. There was no evidence to the contrary. If the judge

implicitly credited plea counsel's testimony on this point, then

an argument could be made that the advice counsel provided about

the immigration consequences of pleading guilty was inadequate.

In the end, we need not resolve these issues, because we agree

with the judge that, in any event, the juvenile is unable to

demonstrate prejudice.

B. Prejudice. There are three ways in which someone in

the juvenile's position can demonstrate "a reasonable

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

pleaded guilty." Clarke, 460 Mass. at 47. These are as

follows:

"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" (citation omitted).

Clarke, 460 Mass. at 47-48. We address these in turn.
16

i. Available defenses at trial. The juvenile argues that

he had a substantial chance of prevailing on the forcible child

rape indictment, because, had the case gone to trial, he would

have been armed with medical records that indicated an absence

of penetration (albeit based on an examination that took place

three days after the sexual assaults). See Commonwealth v.

Nylander, 26 Mass. App. Ct. 784, 791 (1989) (penetration

required for rape). Cf. Commonwealth v. Hrabak, 440 Mass. 650,

656 (2004) (expert testimony required to show that lack of

evidence of injury to victim's rectum was consistent with anal

rape). With respect to the indecent assault and battery and

ABDW indictments, he contends that even if a jury did not acquit

him, they may have convicted him only of simple assault and

battery (a lesser included offense of ABDW). Had they done so,

the juvenile argues, this could have significantly increased his

chances of staying in the country, because simple assault and

battery is not considered a crime of moral turpitude for

purposes of Federal immigration law.

We agree with the juvenile in so far as he argues that he

might have forged a successful defense to the forcible child

rape indictment. However, this does little to aid his claim

that he could have faced more advantageous immigration
17

consequences had he gone to trial, given that that indictment

was nol prossed as part of the plea agreement.11

To the extent that the juvenile contends that there was an

appreciable chance a jury would have acquitted him altogether,

we disagree. The evidence that the juvenile sexually assaulted

the three victims was overwhelming. Nor are we persuaded that

the juvenile had any reasonable chance of prevailing against the

indecent assault and battery charges, especially with respect to

Manny. Regardless of whether the Commonwealth could have proven

that the juvenile actually penetrated Manny's anus with the

broomstick, there was abundant evidence that he jabbed the

weapon at least directly next to his anus.12 It is undeniable

that such an action "intruded upon a private or intimate area of

the body so as to be considered 'indecent' within the meaning of

the criminal statute." Commonwealth v. Cruz, 93 Mass. App. Ct.

11The juvenile also faced charges of assault with intent to
rape Colin and Juan. If at trial the Commonwealth had presented
evidence of the facts contained in the documentary evidence
before the motion judge, that would have sufficed to prove those
charges. See Commonwealth v. Walker, 68 Mass. App. Ct. 194, 199
(2007). Of course, given conflicts in the statements of some
eyewitnesses on certain details, it is possible that a jury
might have acquitted the juvenile of those charges. However, as
part of the plea agreement, the juvenile agreed only to be
adjudicated delinquent on those charges, and neither those
charges, nor the resolution of them, were the focus of the
immigration proceedings.

12Sexual assault cases often turn on the credibility of the
victim. This was not such a case.
18

136, 140 (2018). Whether the juvenile was motivated by sexual

desire is beside the point. See id. at 139 (while context may

be important to determine whether touching is indecent or not,

"[t]he test for indecency is objective, turning on the nature of

the conduct rather than the defendant's intent"). Nor do we see

any merit in the juvenile's implausible suggestion that a jury

might have concluded that Manny consented to being attacked with

the broomstick. As a matter of law, consent was not a legally

valid defense available to the juvenile on the forcible rape of

a child charge, G. L. c. 265, § 22A, because the victim was

under sixteen years old. Beyond that, as a matter of law the

victim could not have consented to being beaten with a dangerous

weapon, see Commonwealth v. Appleby, 380 Mass. 296, 311 (1980).

And, in any event, a consent defense is not available where, as

here, the assault and battery was done "with such violence that

bodily harm is likely to result." Commonwealth v. Burke, 390

Mass. 480, 482 (1983).

We also do not think that the juvenile had any reasonable

chance of convincing a jury that he did not attack Manny and the

other victims by means of a dangerous weapon. The juvenile

argues that the broomstick was not a dangerous weapon because it

was not capable of causing "serious injury," which he argues

should be interpreted to mean "injury on [] par with death."

This claim is at odds with case law, which has established that
19

"[a] dangerous weapon is any instrument which, by the nature of

its construction or the manner of its use, is capable of causing

grievous bodily injury or death, or could be perceived by a

reasonable person as capable of such injury." Commonwealth v.

Dobson, 92 Mass. App. Ct. 355, 357 (2017), quoting Commonwealth

v. Tevlin, 433 Mass. 305, 312 n.3 (2001). We consider it self-

evident that forcefully jabbing a broomstick at someone's anus

creates a risk of serious injury that qualifies a broomstick

used in that manner as a dangerous weapon.

As noted, the juvenile additionally argues that had the

case gone to trial, he would have called experts who could have

established that his behavior was caused by a "culture of

hazing," of which he himself had been a victim. The juvenile's

proffer in support of his motion for new trial did not establish

that any such expert testimony would have been admissible at

trial. Moreover, nothing in the statutes or case law suggests

that hazing is a defense to assault and battery. To the

contrary, it is now itself a crime. See G. L. c. 269, §§ 17-19.

Even if the juvenile's culture of hazing arguments might have

been relevant at sentencing, they would not have negated the

elements of either indecent assault and battery or ABDW.13

13It bears noting that the Legislature specifically has
provided that consent is not available as a defense to the crime
of hazing. See G. L. c. 269, § 17.
20

In sum, we agree with the motion judge that there was

little chance that the juvenile could have avoided the

immigration consequences of his plea agreement by going to

trial.

ii. Better plea deal. As to whether the juvenile might

have negotiated a plea agreement that could have avoided adverse

immigration consequences, there is simply an absence of proof in

the record. For example, the juvenile submitted no evidence of

the District Attorney's policies on the negotiation of pleas, or

of the substance of any discussions between the prosecutor and

defense counsel during plea negotiations. The juvenile points

to the fact that the Commonwealth ultimately agreed not to

oppose the juvenile's request that he be excused from having to

register as a sex offender. We do not view this as any

indication that the Commonwealth would have been willing to

resolve the case through the juvenile's pleading only to simple

assault and battery. Nor do we deem it significant that the

Commonwealth entered a nolle prosequi against one of his

codefendants. The record reflects that while that codefendant

entered the freshman cabin with the juvenile, once inside he had

minimal interaction with the victims. By contrast, the evidence

that the juvenile actively led the sexual assaults was extremely

strong.
21

iii. Special circumstances. The juvenile was able to show

that he had strong reasons to want to stay in the United States.

At the time of his plea, he had been living in the United States

for all but the first four years of his life, had his close

family members here, and had a potentially viable path to legal

status through his stepfather. However, the fact that special

circumstances may exist 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."

Lavrinenko, 473 Mass. at 58. The juvenile's claim that special

circumstances would have led him to reject the plea agreement if

he had properly been advised is undone by the social worker's

notes which establish that he expected to be deported and was at

peace with that.14

14By demonstrating that the juvenile understood that he
faced likely deportation, the social worker's notes also belie
the juvenile's claim that plea counsel presented his advice
about immigration consequences in a manner that the juvenile was
incapable of understanding. The juvenile additionally argues
that even if he in some sense knew that deportation was likely,
he still was unable to appreciate the full consequences of what
deportation would mean to him, because he was a juvenile with a
brain that was not fully developed. Assuming arguendo that
there may be some force to such an argument, it is not at all
clear what accommodations to the applicable Padilla framework
the juvenile is asserting were warranted as a result. In any
event, on this record and briefing, we conclude that the
juvenile has not forged a persuasive argument that the
juvenile's age somehow entitles him to reversal.
22

2. Knowing and voluntary plea. The juvenile also argues

that his plea was not knowing and voluntary because he did not

understand the immigration consequences of it. To satisfy due

process, a plea must be "knowing and voluntary," and a plea does

not meet that test if the defendant was never informed of the

direct consequences of pleading guilty.15 Commonwealth v.

Najjar, 96 Mass. App. Ct. 569, 571, 576 (2019). The

Commonwealth ordinarily bears the burden of proving that a plea

was knowing and voluntary. See Commonwealth v. Yardley Y., 464

Mass. 223, 227 (2013). We review the denial of a motion for new

trial based on a claim that a plea was not knowing and voluntary

for an abuse of discretion. Id.

The threshold question is whether the due process clause is

even implicated by a defendant's purported failure to understand

the immigration consequences of a guilty plea. Historically,

"[t]he immigration ramifications of a conviction [were] not

considered to be direct consequences of being confined."

15The cases often speak of a defendant's awareness of the
direct consequences of a guilty plea as being relevant to
whether a plea was "voluntary." Such awareness perhaps better
could be described as relevant to whether the plea was
"knowing." Compare Commonwealth v. Roberts, 472 Mass. 355, 363-
364 (2015), with Commonwealth v. Najjar, 96 Mass. App. Ct. 569,
576 (2019).
23

Commonwealth v. Hason, 27 Mass. App. Ct. 840, 843 (1989).16

Instead, they were considered "contingent" or "collateral"

consequences, and a defendant's failure to understand the

contingent or collateral consequences of pleading guilty did not

render a plea unknowing or involuntary. Id. The juvenile

argues that such precedent was altered by Padilla and its

progeny. In support of that argument, he points to the fact

that the Supreme Judicial Court on occasion has characterized

the Padilla Court as having "declined to regard deportation as a

mere 'collateral consequence' of criminal conviction." Marinho,

464 Mass. at 124.17 He suggests that such statements must mean

that immigration consequences are "direct," and that it

therefore necessarily follows that guilty pleas cannot be

considered knowing and voluntary if a defendant is unaware of

such consequences. We are unpersuaded.

Despite the dicta in some of the post-Padilla cases,

Padilla indisputably is based on the Sixth Amendment right to

16The "direct consequences" of which a defendant must be
made aware for purposes of satisfying the due process clause are
those within the jurisdiction of the sentencing judge. See
Padilla, 559 U.S. at 365-366, abrogating Commonwealth v.
Fuartado, 170 S.W.3d 384, 386 (Ky. 2005).

17In Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723
(2012), this court cited Padilla for the proposition that
"[w]ithout the benefit of [counsel on the risk of deportation],
a client cannot enter a knowing and voluntary plea." That dicta
is not accurate.
24

effective counsel, not the due process clause. Padilla, 559

U.S. at 366. Moreover, it is equally indisputable that Padilla

did not alter the 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. See Commonwealth v. Roberts, 472 Mass. 355, 355, 363

(2015) (holding that civil commitment as sexually dangerous

person [SDP] is not direct consequence of sexual offense

conviction).18 In sum, we are not persuaded by the juvenile's

18The defendant in Roberts, 472 Mass. at 355, argued that a
Sixth Amendment analysis should be applied to his counsel's
failure to inform him that pleading guilty to forcible rape of a
child could result in his being civilly confined as a "sexually
dangerous person." The Supreme Judicial Court rejected that
argument, declining to apply the Padilla analysis to other types
of what traditionally had been considered collateral
consequences. Id. at 362-364. As the Roberts court put it,
"[t]he Sixth Amendment analysis in Padilla did not erode the
well-settled principle that a judge's failure to inform a
defendant of a collateral consequence -- such as civil
confinement -- is, without more, insufficient to render a
defendant's guilty plea [unknowing or] involuntary under the due
process clause." Id. at 363-364. The court explained that an
alternative framework was warranted in Padilla, because
deportation in some cases was a "virtually mandatory" result
that flowed from a guilty plea, thus rendering deportation
"uniquely difficult to classify as either a direct or a
collateral consequence." Id. at 363 n.9. In other words,
applying a Sixth Amendment framework was appropriate in the
Padilla context because of the sui generis nature of immigration
consequences, which rendered due process analysis at best a poor
fit. The court concluded that there was not the same "close
connection" between the child rape conviction and the civil
consequence of commitment as an SDP. Id. at 363 & n.9. This is
because prosecutors retain discretion whether to seek SDP
25

argument that, by making passing references to immigration

consequences as no longer being considered collateral, the

Supreme Judicial Court intended to sweep due process analysis

into the calculus.

Regardless of whether some immigration consequences in some

contexts might so inexorably flow from a guilty plea as to

render such consequences "direct" for purposes of the due

process clause, a question we need not reach, the immigration

consequences here plainly do not qualify. As detailed above,

whether the juvenile would be deported hardly flowed directly

from his being adjudicated a youthful offender.19 Rather, the

juvenile's plea, and the conduct underlying that plea (which the

juvenile independently acknowledged during the immigration

proceedings) were treated as negative factors in the immigration

judge's decision whether to grant the discretionary relief that

the juvenile had sought. Under these circumstances, deportation

was no more a direct consequence of the juvenile's plea than the

SDP determination was in Roberts.

confinement and are required to prove additional elements in
order to do so. Id. at 363.

19In fact, because a youthful offender adjudication is not
even considered a conviction for immigration purposes, that
means that the juvenile's pleas were not in and of themselves a
basis for deportation.
26

None of this is to suggest that the juvenile would have had

a strong due process argument if such analysis applied to the

immigration consequences of his youthful offender plea.

Although he testified at the evidentiary hearing that at the

time of the plea, he was unaware that his "plea could lead to

[him] being sent back to Brazil" and "that by admitting to

certain crimes, [he was] making it much harder to stay in the

United States," the judge did not credit that testimony.

Putting aside that credibility determinations are the province

of trial court judges, we note that there was robust evidence in

the record, such as the social worker's notes and plea counsel's

testimony, that established that the juvenile was well aware

that he faced likely deportation if he pleaded to being a

youthful offender.20

20With respect to the juvenile's arguments that he was a
juvenile with an underdeveloped brain, the motion judge
"acknowledge[d] that a juvenile's brain is still developing, and
that this fact justifies differential treatment of juveniles and
adults by the criminal justice system." See Commonwealth v.
Mattis, 493 Mass. 216, 217-218, 226 (2024) (holding that youth
and emerging adults require greater protections during
sentencing due to differences in brain development and
maturation compared to adults). However, the motion judge went
on to reason that "this applies to all juveniles and does not
provide a basis to claim that a guilty plea by a[n] [individual]
juvenile was not knowing and intelligent." We discern no error
in that conclusion or in the judge's finding that this juvenile
knowingly entered his plea. See Yardley Y., 464 Mass. at 230
n.11 (although "special caution" is required "when reviewing
juvenile's decision to waive a right," "we defer to the judge
who bears the responsibility to ensure the defendant has made a
knowing and voluntary waiver").
27

For these reasons, we conclude that the judge did not abuse

his discretion or otherwise err in denying the juvenile's motion

to withdraw guilty plea.

Conclusion. The order denying the juvenile's motion to

withdraw guilty plea, and the order denying the juvenile's

motion to reconsider, are affirmed.

So ordered.