Commonwealth v. Marcos v. Delana.

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

23-P-505

COMMONWEALTH

vs.

MARCOS V. DELANA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On February 8, 2002, the defendant pleaded guilty to two

counts of indecent assault and battery on a person fourteen or

older. Eighteen years after he pleaded guilty, the defendant

filed a motion to withdraw his guilty pleas. The motion was

denied, as was the defendant's motion for reconsideration. On

appeal from those orders, the defendant argues that the judge

erred in denying his motion for a new trial without holding an

evidentiary hearing, in denying his motion for relief under

G. L. c. 278, § 29D, and in denying his motion for

reconsideration. We affirm.

Background. In support of his motion to withdraw his

pleas, the defendant filed an affidavit, along with an affidavit
from motion counsel. The defendant's affidavit stated that he

is a citizen of Brazil, that he entered the United States in

2000 at the age of eighteen, and that he was deported in 2017.

The defendant claimed that at the time of his pleas, his plea

counsel did not advise him of immigration consequences of

pleading guilty and that, had counsel done so, the defendant

would not have pleaded guilty. The affidavit additionally

stated that the convictions made him permanently excludable from

admission into the United States. The parties agree that the

transcript of the defendant's plea colloquy is not available.

Additionally, the defendant submitted an affidavit from his

motion counsel describing counsel's attempts to obtain an

affidavit from Attorney Glynn, the defendant's plea counsel.

Motion counsel stated that Attorney Glynn would not cooperate

and sign an affidavit, but had stated that he had no memory of

the case and that, at the time of the defendant's pleas, he

"relied on the content of the tender of plea form or [g]reen

[s]heet for immigration advice purposes."

On September 28, 2020, a nonevidentiary hearing was held.

The defendant argued that if Attorney Glynn did in fact rely

only on the green sheet for immigration warnings, that alone

would have been deficient. He also argued that the

Commonwealth, which had only provided the defendant with a

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docket sheet that had a check box that read "Guilty Plea or

Admission to Sufficient Facts accepted after colloquy and 278

§ 29D warning," had failed to provide the defendant with

sufficient records of the colloquy as required by G. L. c. 278,

§ 29D. The judge did not credit the defendant's affidavit,

finding it to be "self-serving" and "uncorroborated," and cited

the nineteen-year1 time lapse between the defendant's plea

agreement and the request for a new trial. The judge also found

that the defendant failed to rebut the presumption of regularity

and denied his motion for a new trial.2

The defendant then filed a motion for reconsideration. In

that motion, he argued that an evidentiary hearing should have

been held because he presented a substantial issue warranting a

hearing. He also submitted a second affidavit from motion

counsel. This affidavit detailed a conversation with Attorney

Glynn's receptionist, who stated that it was not Attorney Glynn

who represented the defendant but rather it was Attorney Glynn's

father, who also worked in the firm.3 Despite repeated attempts,

1 We note that it was technically only eighteen years
between the defendant's pleas and the motion.

2 The judge did not address the defendant's argument that
the Commonwealth had failed to provide the defendant with
sufficient records of the plea colloquy.

3 We note that both parties agree that the information is
incorrect, as the docket sheet clearly shows that Attorney John

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the defendant's motion counsel was still unable to obtain an

affidavit from Attorney Glynn. The defendant argued that this

new information calling into question who represented the

defendant raised a substantial issue requiring an evidentiary

hearing. Lastly, he argued that the court erred by applying the

presumption of regularity pursuant to G. L. c. 278, § 29D. The

Commonwealth did not file a written opposition.

On March 17, 2022, another nonevidentiary hearing was held

before the same judge. The motion for reconsideration was

denied, and the court found the defendant had not met his burden

or presented a substantial issue requiring an evidentiary

hearing.

Discussion. The defendant makes three appellate arguments:

(1) the judge erred in denying his motion for a new trial

without holding an evidentiary hearing; (2) the judge erred in

rejecting his G. L. c. 278, § 29D, claim for relief; and (3) the

judge erred in denying his motion to reconsider because the

Commonwealth waived its arguments. We address each argument in

turn.

1. Motion for new trial. Rule 30 (b) of the Massachusetts

Rules of Criminal Procedure, as appearing in 435 Mass. 1501

Glynn, not his father Lawrence Glynn, actually represented the
defendant.

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(2001), authorizes a judge to grant a new trial at any time if

it appears that justice may not have been done. "As a general

matter, [a] motion for a new trial is addressed to the sound

discretion of the judge, . . . and an appellate court will

examine the motion judge's conclusion only to determine whether

there has been a significant error of law or other abuse of

discretion" (quotations omitted). Commonwealth v. Watkins (No.

1), 486 Mass. 801, 804 (2021).

The defendant argues that the motion judge erred in denying

his motion to withdraw his pleas because his plea counsel was

ineffective. "Where a motion for a new trial is based on

ineffective assistance of counsel, the defendant bears the

burden of proving entitlement to a new trial by showing that the

behavior of counsel fell below that of an ordinary, fallible

lawyer and that such failing 'likely deprived the defendant of

an otherwise available, substantial ground of defence.'"

Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Because

the motion judge was not the plea judge and ruled on the motion

without an evidentiary hearing, the record before us does not

contain factual findings entitled to deference. See

Commonwealth v. Perkins, 450 Mass. 834, 845 (2008).

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"In determining whether the defendant met his burden under

the performance prong of the Saferian standard, we must first

address what level of advice plea counsel w[as] constitutionally

required to provide the defendant given the charges against

him." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015).

When the immigration consequences of a plea are "truly clear,"

then "the duty to give correct advice is equally clear."

Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012),

quoting Padilla v. Kentucky, 559 U.S. 356, 369 (2010). We agree

with the defendant that if his plea counsel relied solely on the

advice provided on the tender of plea form or "green sheet,"

that would be strong evidence that his counsel's performance was

deficient. See Commonwealth v. Lavrinenko, 473 Mass. 42, 54

(2015) ("It is not sufficient for a criminal defense attorney,

as a matter of practice, merely to give the same warning that

the defendant will receive from the judge during the plea

colloquy required by G. L. c. 278, § 29D"). We need not rule on

this, however, because the defendant has not satisfied the

prejudice prong of the Saferian standard.

Even if plea counsel's performance was deficient, the judge

must then consider the question of resulting prejudice to the

defendant. "In the context of a guilty plea, in order to

satisfy the 'prejudice' requirement, the defendant has the

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burden of establishing that 'there is a reasonable probability

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

and would have insisted on going to trial.'" Commonwealth v.

Clarke, 460 Mass. 30, 47 (2011), quoting Hill v. Lockhart, 474

U.S. 52, 59 (1985). Additionally, the defendant must "convince

the court that a decision to reject the plea bargain would have

been rational under the circumstances." Clarke, supra, quoting

Padilla, 559 U.S. at 369. To prove that rejecting the plea deal

would have been rational, the defendant bears the "substantial

burden" of showing that (1) he had an otherwise available,

substantial ground of defense that he would have pursued if plea

counsel had correctly advised him of the immigration

consequences; (2) there is a reasonable probability that a

different plea deal could have been negotiated that would have

avoided the immigration consequences; or (3) "special

circumstances" were present that would have made him place

particular emphasis on immigration consequences. Clarke, supra

at 47-48.

The defendant has not adequately shown any of these three

are present. The case against him was exceedingly strong and he

has not argued otherwise or that a substantial ground of defense

existed. The defendant presented no credible evidence that a

different plea deal could have been negotiated that would have

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avoided immigration consequences. See Chleikh, 82 Mass. App.

Ct. at 727 (defendant did not meet his burden where there was

"no evidence that there was a reasonable probability that the

defendant would have succeeded in negotiating a plea to

different charges or a sentence with different deportation

consequences"). As to "special circumstances," the defendant

argues that the immigration consequences and permanent exclusion

from admission to the United States were sufficient to establish

prejudice. The defendant's situation at the time he tendered

his pleas is not sufficient to satisfy the special circumstances

requirement. Commonwealth v. Rodriguez, 101 Mass. App. Ct. 54,

59 (2022) (no special circumstance existed where defendant moved

to United States at seventeen years old). However, even

assuming that this was a "special circumstance," the presence of

special circumstances does not necessarily establish prejudice.

Lavrinenko, 473 Mass. at 57 ("a determination whether it would

be rational for a defendant to reject a plea offer 'must take

into account the particular circumstances informing the

defendant's desire to remain in the United States'" [citation

omitted]). Based on our review of the evidence, we hold that

the judge did not abuse her discretion or commit an error of law

when she concluded that the defendant had not presented

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sufficient evidence to show that it would have been rational for

him to have rejected the plea deal and that he was prejudiced.

Turning to the defendant's argument that an evidentiary

hearing should have been held, the motion judge may decide the

motion "on the basis of the facts alleged in the affidavits

without further hearing if no substantial issue is raised by the

motion or affidavits." Mass. R. Crim. P. 30 (c) (3). Doing so

does not deprive a defendant of due process rights. See Lykus

v. Commonwealth, 432 Mass. 160, 163 (2000). We "defer to the

sound discretion of the judge below whether a motion for

postconviction relief requires a hearing," id., and only reverse

if we conclude that the judge abused that discretion.

Commonwealth v. Amaral, 482 Mass. 496, 509 (2019). To determine

whether an issue is substantial, we consider "both the

seriousness of the issue itself and the adequacy of the

defendant's showing" (citation omitted). Commonwealth v.

Marrero, 459 Mass. 235, 240 (2011).

Here, the judge did not abuse their discretion by

determining that the defendant did not present a substantial

issue requiring an evidentiary hearing. The court found the

defendant's affidavit was self-serving and determined that an

evidentiary hearing was not necessary to rule on his motion.

This determination was entirely within the judge's discretion,

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see Lykus, 432 Mass. at 163, and the defendant has not convinced

us that the judge abused that discretion. See Commonwealth v.

Jacobs, 488 Mass. 597, 600 (2021), quoting L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014) ("we consider whether the motion

judge's decision resulted from 'a clear error of judgment in

weighing the factors relevant to the decision such that the

decision falls outside the range of reasonable alternatives'").

2. General Laws c. 278, § 29D, claim for relief. Section

29D of G. L. c. 278, as in effect when the defendant tendered

his pleas, required that a defendant who is not a United States

citizen be advised that such plea "may have the consequences of

deportation, exclusion from admission to the United States, or

denial of naturalization." St. 1996, c. 450, § 254. The

statute further provided that "[a]bsent a record that the court

provided the advisement required by this section, the defendant

shall be presumed not to have received the required advisement."

Id. Therefore "[t]he Commonwealth bears the burden of providing

an affirmative record that the required advisement was given,

. . . and it retains that burden regardless of how much time has

passed since the defendant's guilty plea" (quotations omitted).

Commonwealth v. Marques, 84 Mass. App. Ct. 203, 205 (2013). "If

there is no 'official record or a contemporaneously written

record kept in the court file that the court provided the

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advisement as prescribed [by G. L. c. 278, § 29D], including but

not limited to a docket sheet that accurately reflects that the

warning was given as required by this section, the defendant

shall be presumed not to have received advisement.'" Id.,

quoting G. L. c. 278, § 29D.

Here, the Commonwealth provided the defendant with a docket

sheet that had a checked-off box that read "Guilty Plea or

Admission to Sufficient Facts accepted after colloquy and 278

§ 29D warning." The defendant argues that this is insufficient

because it is ambiguous whether the judge provided the defendant

with an adequate warning. We disagree and believe it is quite

clear. Accordingly, we hold the motion judge did not err or

abuse her discretion in concluding that the Commonwealth had met

its burden.

3. Motion for reconsideration. Finally, the defendant

argues that the judge erred in denying his motion to reconsider

because the Commonwealth waived its arguments by not raising

them in a written opposition or orally during the second

nonevidentiary hearing. This argument, however, fundamentally

misunderstands a motion judge's role when considering a motion

for a new trial. A motion judge's role in this context is to

determine if the defendant has met their burden of showing a

substantial issue whether justice was not done, such that a new

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trial is warranted. See Mass. R. Crim. P. 30 (b). The

Commonwealth might present evidence or make arguments against

the grant of a new trial, but it has no burden to do so, and the

ultimate determination still remains within the judge's

discretion. It is therefore of no consequence that the

Commonwealth did not present the judge with any of the

particular reasoning that she ultimately relied on in making her

ruling. We accordingly affirm.

Order denying motion for a
new trial affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Meade, Walsh &
D'Angelo, JJ.4),

Clerk

Entered: August 27, 2024.

4 The panelists are listed in order of seniority.

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