Commonwealth v. Jonathan Castro.

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-1348

COMMONWEALTH

vs.

JONATHAN CASTRO.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2014, the defendant pleaded guilty to one count of

second-degree murder, one count of armed assault with intent to

murder, one count of possession of a firearm without a license,

and one count of carrying a loaded firearm without a license.

The plea judge sentenced the defendant to serve the term of his

natural life, with parole eligibility in fifteen years for the

murder, and to various shorter, concurrent sentences on the

other charges. Nearly a decade later, the defendant submitted a

motion to vacate his guilty plea because he feared the

consequences of deportation should he be released on parole. A

1 Also known as Manuel Jonathan Castro Menjivar.
judge of the Suffolk Superior Court denied the motion, and the

defendant appeals from the denial of that motion. We affirm.

Background. We summarize the facts admitted to by the

defendant at his September 3, 2014 plea colloquy. In March

2013, six members of the 18th Street Gang in Chelsea sought to

attack two men they believed were part of a rival gang. The

defendant was one of these members and brought a loaded revolver

to the attack. Once the attack began, the defendant fired the

revolver at two men who were standing on the porch of a

residential building. Two of the bullets fatally struck one of

the men. The police arrested the defendant later that same

evening. During police questioning following the arrest, the

defendant admitted to shooting the victim and that the shooting

was gang motivated.

At the plea hearing, the defendant affirmed that he was

aware of the possible impact that a conviction would have on his

immigration status. Specifically, the judge advised the

defendant that "[i]f you are not a citizen of the United States,

I am hereby advising you that pleading guilty to this charge

will result in your deportation, your exclusion from admission

to the United States, your denial of naturalization pursuant to

the laws of the United States."

The defendant also confirmed that he had discussed the

immigration consequences of his plea with his lawyer. In

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addition, the defendant and his attorney signed a "Waiver of

Defendant's Rights" form before the plea hearing. The form

contained an acknowledgement that the defendant's plea was not

the result of any "assurances, or promises." The defendant

confirmed to the judge that he had signed the form voluntarily.

The defendant also confirmed to the judge that he had received

no promises other than the plea agreement discussed on the

record.2

In 2023, the defendant submitted a motion to vacate his

guilty plea contending that his counsel was ineffective for

failing to inform the plea judge that "there was an active

protective order for [the defendant's] safety which should have

been applied to [the] plea colloquy." In support of his motion,

the defendant averred that he pleaded guilty "under the

assumption that the Suffolk [County] District Attorney['s]

Office agreed to protect me with a protective order for me to

stay in [the] United Stated for my safety." The defendant

further claimed his life would be in danger from "gang members"

2 As terms of the plea agreement, the defendant pleaded
guilty to the lesser included charge of murder in the second
degree, armed assault with intent to murder, unlawful possession
of a firearm without a license, and carrying a loaded firearm
without a license. Two counts -- assault by means of a
dangerous weapon and unlawful possession of ammunition -- were
dismissed at the request of the Commonwealth.

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involved in his case should he be deported because he had

corroborated with the police.

The motion judge, who had not conducted the defendant's

plea, denied the motion without a hearing "substantially for the

reasons set forth in the Commonwealth's opposition."3

Discussion. "A motion to withdraw a guilty plea is treated

as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b)

[, as appearing in 435 Mass. 1501 (2001)]." Commonwealth v.

Lastowski, 478 Mass. 572, 575 (2018), quoting Commonwealth v.

Sylvester, 476 Mass. 1, 5 (2016). "Although the disposition of

such a motion is within the discretion of the judge, a rigorous

standard must be applied and a judge may only allow such a

motion 'if it appears that justice may not have been done.'"

Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), quoting

Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). "We 'review

the denial of a motion to withdraw a guilty plea to determine

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

of discretion'" (citation omitted). Commonwealth v. Barros, 494

Mass. 100, 111 (2024).

3 The Commonwealth argued that the defendant had been
properly warned of adverse immigration consequences before
making his guilty plea, and therefore his plea was knowing,
intelligent, and voluntary. Further, the Commonwealth pointed
out there was no evidence, besides the defendant's own
affidavit, that a protective order ever existed.

4
Where, as here, the defendant's motion for new trial is

premised on a claim of ineffective assistance of counsel, the

defendant bears the burden of proving counsel's ineffectiveness.

Commonwealth v. Dowds, 483 Mass. 498, 504 (2019). Thus, the

defendant must establish, first, that his attorney's performance

fell "measurably below that which might be expected from an

ordinary fallible lawyer," and, second, that the attorney's

performance "likely deprived the defendant of an otherwise

available, substantial ground of defense." Commonwealth v.

Marinho, 464 Mass. 115, 123 (2013), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).

The defendant has not established that plea counsel's

performance was deficient. First, the defendant offers no

evidence to support his averment as to the existence of a

protective order that would have allowed him to stay in the

United States.4 The motion judge was not required to credit the

defendant's affidavit. See Marinho, 464 Mass. at 123 ("a judge

is entitled to discredit affidavits he or she does not find

credible"). During his plea colloquy, the defendant explicitly

acknowledged that the Commonwealth had not made any promises to

him in addition to the terms of the plea as discussed on the

4 The only protective order that appears on the record is
the one requested by the Commonwealth that restricted the
dissemination of pretrial discovery by defense counsel.

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record. The record further indicates the defendant was advised

of the adverse immigration consequences by his attorney and the

court before the defendant agreed to waive his rights and change

his plea. The defendant also confirmed that he had sufficient

time to speak with his attorney, that she explained the

consequences of the plea, and that he was satisfied that she

acted in his best interest. There is no indication from the

record on appeal that counsel's performance fell "measurably

below that which might be expected from an ordinary fallible

lawyer." Saferian, 366 Mass. at 96.

To the extent the defendant argues that his guilty plea

should be vacated because of the threat to his life if he is

deported, we recognize that the defendant will not be eligible

for parole until 2028. It thus follows that the defendant's

claim that he faces imminent death upon his deportation is

premature. See Commonwealth v. Casimir, 68 Mass. App. Ct. 257,

259 (2007) ("[Defendant] offered no evidence to the motion judge

that removal proceedings have been initiated against him or that

he has been denied naturalization . . . . Merely being

'subject' to removal or that he 'may' be denied citizenship is

insufficient"). As the motion judge pointed out, any agreements

with the government "can be raised if and when deportation

proceedings are commenced."

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We further note that the defendant has made no showing that

when he pleaded guilty he was unaware that his life would be in

danger if he were to be deported. In his affidavit supporting

his motion for new trial, the defendant does not aver that there

was any new information that had come to light since his plea

that represented a change of circumstances that heightened his

concern for such a risk.

Finally, the defendant argues for the first time on appeal

that (1) a public notice issued by the Suffolk County District

Attorney effectively placed his life at risk, as it informed

fellow gang members that he cooperated with the police; and that

(2) plea counsel was ineffective by not fully explaining the

risk to his life upon deportation. Because the defendant raises

these claims for the first time on appeal, these claims are

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waived for purpose of this appeal. See Mass. R. Crim. P.

30 (c) (2). See also Commonwealth v. Roberts, 472 Mass. 355,

359 (2015).

Order denying motion to
withdraw guilty plea
affirmed.

By the Court (Ditkoff,
Englander & Smyth, JJ.5),

Clerk

Entered: May 15, 2025.

5
The panelists are listed in order of seniority.

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