Commonwealth v. Alfredo Ramirez.

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-318

COMMONWEALTH

vs.

ALFREDO RAMIREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On August 16, 2005, the defendant, who is not a citizen of

the United States, pleaded guilty to a charge of assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b)

(ABDW). Seventeen years later, in 2022, the defendant moved to

vacate the plea, asserting that his attorney was ineffective for

failing to advise him that a conviction of a crime of moral

turpitude would cause him to lose any opportunity for

discretionary relief of cancellation of removal from the United

States. A judge of the District Court denied the motion without

an evidentiary hearing. Because the defendant raised

substantial issues in his motion and accompanying affidavits, we

vacate the order denying the motion and remand the matter for

proceedings consistent with this memorandum and order.
Background. The defendant is a citizen of Guatemala who

immigrated to the United States in 1996. He has lived in the

United States since that time. He is married to a United States

citizen and is the father and stepfather of children that are

United States citizens. 1

On May 20, 2005, a complaint alleging ABDW and mayhem,

G. L. c. 265, § 14, issued against the defendant. On June 14,

2005, the Commonwealth filed a nolle prosequi on the mayhem

charge. According to plea counsel's notes, during the pendency

of the case, the defendant and plea counsel discussed the

possibility of asserting a self-defense claim. The notes also

indicated that the defendant's position was that any result of

the case "must be a disposition that doesn't result in

deportation" and that if such a result was unavailable, they

might have to "try it" but the case was "a toughie." The notes

referred to counsel's research that a conviction of ABDW that

resulted in a sentence of less than one year would not result in

the defendant's deportation.

With this in mind, a plea was fashioned with the District

Court judge's agreement for the defendant to receive an eleven-

month sentence with sixty days to serve in the house of

correction. On August 16, 2005, the defendant pleaded guilty to

1 It is unknown if the defendant was married or had any children
or stepchildren at the time of his plea in 2005.

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ABDW, and he received a sentence of six months in the house of

correction with fifty-nine days to serve and the balance

suspended for one year.

Sometime between the plea and 2018, the Department of

Homeland Security initiated removal proceedings against the

defendant. During those proceedings, the defendant "admitted

and conceded" that he was present in the United States "without

admission or paroled." 2 A United States immigration judge found

that the defendant was "removable" on that basis. The

immigration judge also concluded that the conviction of ABDW is

a crime involving moral turpitude and because of the defendant's

conviction of that crime, he was ineligible for discretionary

relief from removal. The immigration judge ordered that the

defendant be removed to Guatemala. The Board of Immigration

Appeals dismissed the defendant's appeal from the immigration

judge's order.

On July 18, 2022, the defendant filed his motion to vacate

his guilty plea with accompanying documents. After a

nonevidentiary hearing, a District Court judge (motion judge),

who was not the plea judge, denied the motion without making any

findings. This appeal followed.

2 "An alien present in the United States without being admitted
or paroled . . . is inadmissible." 8 U.S.C. § 1182(a)(6)(A)(i).

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Discussion. 1. Standard of review. "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. DeJesus, 468 Mass. 174, 178 (2014).

"We review a judge's decision to deny a motion for a new trial

without holding an evidentiary hearing for a significant error

of law or other abuse of discretion" (quotation and citation

omitted). Commonwealth v. Upton, 484 Mass. 155, 162 (2020).

"[A] defendant's motion and affidavits 'need not prove the issue

raised' to be adequate but 'they must at least contain

sufficient credible information to cast doubt on the issue'"

(citation omitted). Commonwealth v. Lys, 481 Mass. 1, 5 (2018).

An evidentiary hearing should be conducted "where a substantial

issue is raised." Commonwealth v. Stewart, 383 Mass. 253, 260

(1981).

To establish that he is entitled to a new trial on the

ground that he received ineffective assistance of counsel, a

defendant is required to show that plea counsel's performance

fell "measurably below that which might be expected from an

ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass.

89, 96 (1974), and that he suffered prejudice because of his

attorney's "unprofessional errors," Commonwealth v. Clarke, 460

Mass. 30, 47 (2011), quoting Commonwealth v. Mahar, 442 Mass.

11, 15 (2004).

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2. Plea counsel's performance. The defendant argues that

his plea counsel provided ineffective assistance by failing to

adequately inform him of the immigration consequences of

pleading guilty to the charge of ABDW, and that his plea to that

offense should be vacated and a new trial ordered. 3 See Padilla

v. Kentucky, 559 U.S. 356 (2010).

"Under art. 12 [of the Massachusetts Declaration of Rights]

defense counsel must accurately advise a noncitizen defendant of

the deportation consequences of a guilty plea or a conviction at

trial." Commonwealth v. Sylvain, 466 Mass. 422, 436 (2013). A

noncitizen may request cancellation of removal from the United

States. See 8 U.S.C. § 1229b(b). Cancellation of removal is

available only if the noncitizen "has not been convicted of an

offense under . . . [§ 1182(a)(2)]". 8 U.S.C. § 1229b(b)(C).

Conviction of a crime involving moral turpitude prohibits

discretionary cancellation of removal. See Commonwealth v.

Lopez, 96 Mass. App. Ct. 34, 35 (2019). ABDW, pursuant to G. L.

c. 265, § 15A, is a crime involving moral turpitude. See Matter

of J, 4 I. & N. Dec. 512, 515 (B.I.A. 1951). Cf. Matter of Wu,

27 I. & N. Dec. 8, 11 (B.I.A. 2017); Matter of O, 3 I. & N. Dec.

193, 197 (B.I.A. 1948). Thus, the risk of losing this

3 Alternatively, the defendant argues that if this court does not
reverse the order denying the motion to vacate his plea, the
case should be remanded to the District Court for
reconsideration.

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opportunity for discretionary relief was a clear consequence at

the time of the defendant's plea. See Commonwealth v.

Lavrinenko, 473 Mass. 42, 62 (2015) (competent counsel should

advise defendant of clear immigration consequence of losing

viable opportunity for discretionary relief).

The motion judge made no factual findings to address the

issue of whether the defendant was informed that the offense to

which he was pleading guilty was a crime of moral turpitude, and

that a guilty plea could prevent him from obtaining

discretionary relief from deportation or inadmissibility. The

defendant stated in his affidavit accompanying his motion that

plea counsel never advised him that ABDW could constitute a

crime of moral turpitude and that admitting to a crime of moral

turpitude would prevent him from "applying for discretionary

relief in the form of cancellation of removal." Additionally,

although plea counsel's notes reflect the importance to the

defendant of avoiding adverse immigration consequences from any

plea, the notes do not reflect that counsel investigated or

considered whether ABDW was a crime of moral turpitude or

whether the plea would deprive the defendant of the potential

for discretionary relief from removal.

Of course, the motion judge was not required to credit the

affidavits even where nothing in the record directly

contradicted them. See Commonwealth v. Scoggins, 439 Mass. 571,

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578 (2003); Commonwealth v. Rzepphiewski, 431 Mass. 48, 55

(2000). However, the judge did not find that the defendant had

been warned that the plea would deprive him of the possibility

for discretionary relief from removal. "Such a finding is

necessary to resolve the performance prong of the Saferian

analysis." Commonwealth v. Henry, 88 Mass. App. Ct. 446, 454

(2015). The case must therefore be remanded for a finding

whether plea counsel's performance was deficient in this

respect.

3. Prejudice. If plea counsel's performance was

deficient, then the judge must 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 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.'" Clarke, 460 Mass. at 47, 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 372.

The motion judge must determine whether there is a

reasonable probability that a reasonable person in the

defendant's position would have chosen to go to trial had he

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received constitutionally effective advice from his criminal

defense attorney regarding the immigration consequences of a

guilty plea. See Ferrara v. United States, 456 F.3d 278, 294

(1st Cir. 2006) ("The elementary question is whether a

reasonable defendant standing the petitioner's shoes would

likely have altered his decision to plead guilty"). See also

Commonwealth v. Scott, 467 Mass. 336, 361 (2014) (prejudice

standard in Clarke "is identical to, and draws from the same

source as, the standard in Ferrara").

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, 460 Mass. at 47-48.

In his motion to vacate his plea and accompanying

affidavits, the defendant averred that if he had been aware of

the immigration consequences of his plea, he would have elected

to proceed to trial. The defendant argues that he met his

burden to show the presence of "special circumstances" that

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support the conclusion that he placed particular emphasis on the

immigration consequences in deciding whether to plead guilty.

Plea counsel's notes indicate that the defendant would

"entertain a plea" but it "must be a disposition that doesn't

result in deportation. If can't, try it."

However, the presence of "special circumstances" alone does

"not necessarily require a finding of prejudice." Lavrinenko,

473 Mass. at 58. "[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). Id.

On remand, the judge will need to consider whether there is

a reasonable probability that the defendant would have chosen to

go to trial on the charge of ABDW had he been competently

advised of the immigration consequences of a guilty plea.

"Here the critical factual determination for the judge is
what a reasonable defendant, under the circumstances would
have estimated to be the chance of acquittal on the charge
had he gone to trial, bearing in mind that, in light of the
weight to be given the defendant's . . . status and the
fact that the defendant faced only a house of correction
sentence if convicted in the District Court, even a small
chance of acquittal may be sufficient to show that it was
reasonably probable that a person in the position of the
defendant would have rejected the plea and insisted on
going to trial."

Lavrinenko, 473 Mass. at 63.

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The order denying the defendant's motion to vacate his

guilty plea is vacated, and the matter is remanded for

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Wolohojian,
Milkey & D'Angelo, JJ. 4),

Assistant Clerk

Entered: January 17, 2024.

4 The panelists are listed in order of seniority.

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