Commonwealth v. Jorge L. Santana.

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-1331

COMMONWEALTH

vs.

JORGE L. SANTANA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial, without an

evidentiary hearing, of his motion to withdraw his guilty plea

and for a new trial. He contends that (1) the judge erred by

denying the motion because the defendant established both that

plea counsel failed to advise him correctly of the immigration

consequences of his plea and that he was prejudiced by that

failure, and (2) the judge abused his discretion by acting on

the motion without conducting an evidentiary hearing. We

affirm.

Background. On the afternoon of June 5, 2017, Danvers

police detectives followed a Buick driven by a man whom they

knew to be a habitual drug user into a Market Basket parking
lot. Minutes later, the defendant pulled up to the Buick in his

Honda CRV. Detectives saw "[a]n item . . . tossed from the

Honda to the Buick and from the Buick to the Honda." The

defendant was stopped, searched, and found to be in possession

of a twist of heroin and $790 cash, including three "tightly

folded hundred dollar bills." He was arrested and charged with

possession with intent to distribute heroin.

In November 2018, after his motion to suppress was denied

and his case was scheduled for trial, the defendant pleaded

guilty. Based on an agreed recommendation, he was sentenced to

six months in the house of correction, suspended with probation

for one year. In February 2021, while returning to the United

States from the Dominican Republic, the defendant was stopped by

immigration officials and told that he faced deportation. In

April 2022, the defendant filed a motion to withdraw his guilty

plea and for a new trial, accompanied by his own affidavit and

an affidavit from plea counsel. After a nonevidentiary hearing,

the motion judge, who was also the plea judge, denied the motion

and the defendant subsequently appealed.

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

as a motion for a new trial under Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001)." Commonwealth v. Furr, 454

Mass. 101, 106 (2009). Such a motion "is addressed to the sound

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discretion of the [plea] judge, and . . . will not be reversed

unless it is manifestly unjust, or unless the [plea hearing] was

infected with prejudicial constitutional error." Commonwealth

v. Colon, 439 Mass. 519, 524 (2003), quoting Commonwealth v.

Russin, 420 Mass. 309, 318 (1995). See Commonwealth v.

Sylvester, 476 Mass. 1, 5 (2016) ("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"

[quotation and citation omitted]).

1. Ineffective assistance. To prevail on his claim of

ineffectiveness of counsel, the defendant must show: (1) that

counsel's conduct fell "measurably below that which might be

expected from an ordinary fallible lawyer"; and (2) that this

conduct "likely deprived the defendant of an otherwise

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "Thus, a defendant must

prove both deficient performance and prejudice" (emphasis

added). Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722

(2012). "We afford particular deference to a decision on a

motion for a new trial based on claims of ineffective assistance

where the motion judge was, as here, the trial judge."

Commonwealth v. Martin, 467 Mass. 291, 316 (2014).

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The defendant contends that his plea counsel was

ineffective because he failed to inform the defendant that his

plea would result in automatic deportation, loss of his

permanent resident status, and ineligibility for any relief in

Immigration Court. See Padilla v. Kentucky, 559 U.S. 356 (2010);

Commonwealth v. Clarke, 460 Mass. 30 (2011). He averred as much

in an affidavit filed with his new trial motion. However, the

plea judge did not credit the defendant's affidavit, because it

was self-serving and came years after the plea.1 See

Commonwealth v. Torres, 469 Mass. 398, 406 (2014) (defendant’s

affidavit did not raise substantial issue where record refuted

his only theory of ineffectiveness). Nor did the judge credit

plea counsel's affidavit supporting the defendant's contention

that the attorney's advice lacked the required specificity

regarding the immigration consequences of the plea. On the

contrary, based on his review of the courtroom recording of the

plea colloquy,2 which "refresh[ed] [his] independent recollection

1 We do not think it significant in the overall context of
the judge's decision that the judge indicated the affidavit came
four years after the plea when, in fact, it was signed just over
two and one-half years after the defendant pleaded guilty but
not filed until more than eight months thereafter.

2 During the plea colloquy, the judge and counsel had the
following exchange:
Judge: "Have you explained to your client the elements of
the charges against him and the potential penalties?

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of this particular plea," and his handwritten notes on the

defendant's tender of plea form,3 the judge found that "[t]he

problem with plea counsel's affidavit is that it is contradicted

by what happened at the time of the plea." We accord the

judge's credibility determination particular deference given

that he had conducted the plea colloquy. See Commonwealth v.

Scott, 467 Mass. 336, 344 (2014). During the hearing on the

defendant's motion, the judge also noted,

"I don't ask [whether counsel has discussed immigration
consequences with the defendant] that often, and I asked
the question in this case and I ask the question in the
cases where it appears to me to be during the course of the
plea colloquy and the recitation of the facts that there
may very well be an immigration issue, and that's why I
examined counsel on that and I got that representation in
open court."
We thus discern no error in the judge's determination that plea

counsel's advice was not ineffective.

Even if we were to conclude that it was deficient, the

defendant has not demonstrated that he was prejudiced by plea

Plea counsel: "Yes, I have, Your Honor."

Judge: "And if there are any immigration consequences have
you discussed those pursuant to Commonwealth v. Clarke?"

Plea counsel: 'Yes, I have, Your Honor."

3 The judge wrote, "Alien rights given. Counsel has advised
immigration consequences."

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counsel's advice.4 "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" (quotation and citation

omitted). Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246-247

(2015). Moreover, the defendant must demonstrate that the

decision to insist on going to trial "would have been rational

. . . by showing that (1) he had an available, substantial

ground of defence . . .; (2) there is a reasonable probability

that a different plea bargain . . . could have been negotiated

at the time; or (3) the presence of special circumstances that

support the conclusion that [the defendant] placed, or would

have placed, particular emphasis on immigration consequences

when deciding to plead guilty" (quotations and citation

omitted). See id. at 247.

Here, the defendant does not press the argument that he had

an available, substantial ground of defense. Indeed, the

Commonwealth's case against the defendant was strong as police

4 Because he determined that plea counsel was not
ineffective, the motion judge did not reach prejudice.

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witnessed what amounted to a hand-to-hand transaction and then

found heroin and a large amount of cash on the defendant.5

However, the defendant asserts that plea counsel

nevertheless could have negotiated a plea to possession with

intent to distribute a Class A "unspecified" substance rather

than heroin, which would have "spared" him immigration

consequences. This argument fails for several reasons. First,

the defendant did not demonstrate that the Commonwealth would

have entertained such a resolution. See Commonwealth v. Coyne,

372 Mass. 599, 601 (1977) ("decision to negotiate with a

defendant about the terms of a guilty plea rests solely in the

prosecutor's discretion"). Appellate counsel also acknowledged

during the motion hearing and at oral argument in this court

that such a resolution is "rare," and was unable to cite a

single instance of such a disposition in Essex County, where the

plea occurred. Finally, the defendant provided no legal or even

anecdotal support for his claim that securing such a plea would,

in fact, protect him from any immigration consequences. We

therefore conclude that the defendant has failed to show a

"reasonable probability that a different plea bargain (absent

[immigration] consequences) could have been negotiated at the

time[.]" Clarke, 460 Mass. at 47.

5 Defendant's counsel properly acknowledged the strength of
the Commonwealth's case during the motion hearing.

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The defendant fares no better in his argument that he

demonstrated special circumstances. According to his affidavit,

at the time of the plea, the defendant was thirty one years old

and had emigrated from the Dominican Republic to the United

States three years earlier. His wife and two young children

already lived in the United States, but it is unclear for how

long. He was working full-time in asbestos removal for a

Cambridge-based company and his family relied on his income.

Although the defendant thus was able to show that he had strong

reasons to want to remain in the United States, 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." Commonwealth v. Lavrinenko, 473 Mass. 42, 59 (2015).

Here, there was evidence to the contrary. The defendant's

affidavit states that he was "especially worried about [his]

family, because [he] was [their] primary source of financial

support" and that his attorney advised him that "the deal they

were offering [him] would allow [him] to keep working to support

[his] family." In fact, despite facing up to two and one-half

years in the house of correction, see G. L. c. 94C, § 32A, the

defendant received a sentence of only six months suspended with

one year of probation, and the sole condition was that he

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maintain employment. Thus, the negotiated plea allowed the

defendant to continue to work and support his family, which he

had identified as his main concern at the time of the plea. As

previously discussed, the case against the defendant was strong.

Moreover, his motion to suppress evidence already had been

denied. Under these circumstances, we conclude that the

defendant has failed to demonstrate that it would have been

rational due to special circumstances for him to have rejected

the plea and instead gone to trial.

2. Denial of evidentiary hearing. The defendant further

contends that the motion judge erred by denying the motion for a

new trial without conducting an evidentiary hearing. We

disagree.

"The decision to hold an evidentiary hearing on a motion

for a new trial is 'left largely to the sound discretion of the

judge.'" Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015),

quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

"The judge may rule on the issue or issues presented by such

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), as

appearing in 435 Mass. 1501 (2001). "In determining whether a

motion for a new trial warrants an evidentiary hearing, both the

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seriousness of the issue itself and the adequacy of the

defendant's showing on that issue must be considered."

Commonwealth v. Denis, 442 Mass. 617, 628 (2004).

A motion for new trial alleging ineffective assistance of

counsel "raises 'an issue of constitutional importance' that

readily qualifies as a serious issue" depending on the adequacy

of the showing with respect to that issue. Denis, 442 Mass. at

629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992).

Accordingly, "[a]lthough the motions and supporting materials

filed by a defendant need not prove the issue raised therein,

they must at least contain sufficient credible information to

cast doubt on the issue." Denis, supra.

Here, the motion judge found that the defendant did not

make an adequate showing to warrant an evidentiary hearing

because he did not credit the affidavits of the defendant and

plea counsel. See Commonwealth v. Lys, 481 Mass. 1, 5 (2018)

(in determining whether motion and affidavits raise a

"substantial issue," "motion judge need not accept statements in

the defendant's affidavits as true, even if the statements are

undisputed"). The judge was entitled to make such a credibility

determination. Id. Moreover, plea counsel's affidavit

indicated what he "would have explained" to the defendant

regarding immigration consequences, suggesting that he did not

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have a specific memory of the advice he provided. Thus, the

judge did not abuse his discretion by denying the defendant's

motion for new trial without an evidentiary hearing.

Order denying motion to
withdraw plea and for new
trial affirmed.

By the Court (Meade, Blake &
Brennan, JJ.6),

Clerk

Entered: August 13, 2024.

6 The panelists are listed in order of seniority.

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