Commonwealth v. Angel Camacho.

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

25-P-815

COMMONWEALTH

vs.

ANGEL CAMACHO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal stems from the order of a District Court judge

in 2025 denying the defendant's motion to withdraw his 2009

guilty plea to possession of cocaine with the intent to

distribute. In his motion, the defendant claimed that his plea

counsel had been ineffective. We infer the motion judge

concluded that (1) plea counsel's failure to file certain

pretrial motions was the result of a reasonable tactical

decision and (2) the defendant failed to demonstrate prejudice

resulting from plea counsel's failure to advise him of the full

panoply of adverse immigration consequences of his plea.

Because we discern in those conclusions neither abuse of

discretion nor other error, we affirm.

Background. We briefly summarize the undisputed facts and

procedural history relevant to our analysis, reserving certain
details for later discussion. At the time of his plea, the

defendant was not a United States citizen. In an affidavit in

support of his motion for a new trial, he averred that he fled

to the United States from his native Colombia in 2002 after he

and his family were threatened by people identifying themselves

as guerillas and that he lived in Massachusetts between 2002 and

2015. In 2006, the defendant was scheduled for a removal

hearing in Immigration Court. He obtained immigration counsel

and requested relief from removal.

In January 2009, while the removal proceedings were

pending, the defendant was arraigned in the Superior Court on

charges including trafficking in 200 or more grams of cocaine.1

See G. L. c. 94C, § 32E (b) (4), as amended through St. 1992,

c. 396, §§ 1-3. He was released on bail, but in May 2009, while

the removal proceedings and the Superior Court drug charges were

pending, he was arrested and arraigned on a complaint in the

District Court -- the case at issue in this appeal -- alleging

three counts: count 1, speeding; count 2, operating under the

influence of intoxicating liquor (OUI); and count 3, possession

of cocaine with the intent to distribute, as a subsequent

1 He was also charged in that case with two school zone
violations and possession of cocaine with the intent to
distribute.

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offense. See G. L. c. 94C, § 32A, as amended through St. 1991,

c. 391 (describing penalties for drug convictions).

Plea counsel represented the defendant in both the Superior

Court case and the District Court case and negotiated pleas in

both of them. On November 5, 2009, the defendant pleaded guilty

in the Superior Court to a reduced charge of trafficking in

twenty-eight grams or more, but less than one hundred grams of

cocaine, see G. L. c. 94C, § 32E (b) (2), as amended through

St. 1992, c. 396, §§ 1-3, and was sentenced to a term of from

six to eight years in State prison.2 A month later, the

defendant pleaded guilty in this case to counts 2 (OUI) and 3

(as amended to possession of cocaine with the intent to

distribute, first offense). He was sentenced by agreement to

terms of nine months in the house of correction to run

concurrently with each other and with the State prison sentence

imposed in the Superior Court.3

In 2023, the defendant moved in this case to withdraw his

guilty plea to count 3, arguing that his plea counsel had

provided ineffective assistance. The defendant supported his

motion with his own affidavit, as well as those of plea counsel

2 The remaining three charges in the Superior Court case,
including the possession charge, were nol prossed.

3 He agreed to a finding of "not responsible" on the civil
infraction.

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and appellate counsel; he did not provide an affidavit of

immigration counsel. A judge (motion judge)4 ruled on the motion

and denied it after a nonevidentiary hearing. The defendant

appealed from the motion judge's ruling, and in an unpublished

decision, a panel of this court vacated the order denying the

motion to withdraw the plea and remanded the case to the

District Court for an evidentiary hearing. See Commonwealth v.

Camacho, 104 Mass. App. Ct. 1114 (2024). On remand, the motion

judge held an evidentiary hearing, at which the defendant

presented his own testimony and that of his plea counsel. After

the hearing, the judge again denied the defendant's motion to

withdraw his plea, and this appeal followed.

Discussion. 1. Standard of review. 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).

See Commonwealth v. Scott, 467 Mass. 336, 344 (2014). A judge

may grant a motion for a new trial only "if it appears that

justice may not have been done." Mass. R. Crim. P. 30 (b). See

Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Judges are

obligated to "apply the standard set out in [rule 30 (b)]

rigorously, and should only grant a postsentence motion to

4 The motion judge is not the judge who accepted the
defendant's plea, as the plea judge had retired.

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withdraw a plea if the defendant comes forward with a credible

reason which outweighs the risk of prejudice to the

Commonwealth" (quotations and citations omitted). Commonwealth

v. Fanelli, 412 Mass. 497, 504 (1992). In conducting our review

of the judge's denial of a motion under rule 30 (b), "[w]e

accept the judge's findings of fact if supported by the

evidence, because the judge who heard the witnesses testify is

the 'final arbiter on matters of credibility.'" Commonwealth v.

DeJesus, 468 Mass. 174, 178 (2014), quoting Scott, supra.

Having done so, we review for abuse of discretion or other

"significant error of law." Commonwealth v. Cotto, 471 Mass.

97, 105 (2015).

Where the motion to withdraw a guilty plea is based on a

claim of ineffective assistance of plea counsel, the defendant

"bears the burden of showing that his attorney's performance

fell 'measurably below that which might be expected from an

ordinary fallible lawyer,' and that he suffered prejudice

because of his attorney's unprofessional errors." Commonwealth

v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting Commonwealth v.

Clarke, 460 Mass. 30, 45 (2011). See Commonwealth v. Saferian,

366 Mass. 89, 96 (1974).

2. Failure to file pretrial motions. At the time of the

defendant's plea in this case, he had viable motions to suppress

evidence of the cocaine found when a State police trooper

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conducted an inventory search of his car, see Commonwealth v.

Alvarado, 420 Mass. 542, 552-553 (1995), and to dismiss so much

of count 3 as alleged an intent to distribute the "approximately

nine grams" of cocaine the defendant was alleged to have

possessed, see Commonwealth v. Acosta, 81 Mass. App. Ct. 836,

840-841 (2012).5 See Camacho, 104 Mass. App. Ct. 1114. Failure

to file a viable motion to suppress is ordinarily substandard

practice, see, e.g., Commonwealth v. Henderson, 486 Mass. 296,

302 (2020); we assume without deciding that the same is true of

failure to file a viable motion to dismiss. However, "[a]

strategic or tactical decision by counsel will not be considered

ineffective assistance unless that decision was 'manifestly

unreasonable' when made." Commonwealth v. Acevedo, 446 Mass.

435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722,

728 (1978).

After the evidentiary hearing, the judge concluded that

plea counsel made a "reasonable decision" to advise the

defendant to plead guilty to count 3 without pursuing motions to

suppress and dismiss. We discern neither abuse of discretion

nor other error in the judge's determination. At the

evidentiary hearing on the defendant's motion, plea counsel

5 We express no opinion about the likelihood of success of
either of those motions, however.

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testified that the crime for which the defendant was indicted in

the Superior Court exposed the defendant to a fifteen-year

minimum mandatory sentence and that the "collective strategy" he

developed with the defendant focused on minimizing the length of

the Superior Court sentence and then resolving the charges in

this case with "concurrent time." He further testified that he

accomplished this goal, having negotiated a reduction in the

Superior Court trafficking charge that limited the defendant's

committed sentence to from six to eight years, and as the

dockets reflect, quickly finalizing a plea in this case that

ensured that the defendant's total incarcerated sentence did not

increase.6 Where we infer that the judge credited plea counsel's

testimony on these points, we are satisfied that the evidence

was adequate to show that plea counsel's decisions were both

"strategic," Acevedo, 446 Mass. at 442, and not "manifestly

unreasonable." Id., quoting Adams, 374 Mass. at 728. The judge

did not err in concluding that plea counsel's failure to file

6 There was no guarantee that the disposition of this case
would have included concurrent sentencing. Indeed, given that
the defendant was arrested in this case while on bail on the
Superior Court case and that he was sentenced in that case
before this one, any sentence in this case should mandatorily
have been imposed "consecutively to the earlier sentence."
G. L. c. 279, § 8B. See Commonwealth v. Hickey, 429 Mass. 1027,
1027 (1999). Plea counsel testified that he was aware of that
statute and "convinced the ADA not to impose a consecutive
sentence."

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the motions to suppress and to dismiss did not constitute

ineffective assistance.

3. Failure to advise the defendant of "truly clear"

adverse immigration consequences. Effective representation

requires plea counsel to advise the client of the "truly clear"

adverse immigration consequences of a guilty plea. Commonwealth

v. Lys, 481 Mass. 1, 5 (2018), quoting Padilla v. Kentucky, 559

U.S. 356, 369 (2010). It is undisputed that in this case, the

defendant's guilty plea to possession of cocaine with the intent

to distribute was a plea to an aggravated felony for the

purposes of immigration law, such that its effect included a

foreclosure of any relief from removal, see, e.g., Moncrieffe v.

Holder, 569 U.S. 184, 187-188 (2013), and a virtual guarantee

that he could never return to the United States following either

removal or his choice to leave. See 8 U.S.C. § 1182(a)(2);

Commonwealth v. Valdez, 475 Mass. 178, 184-185 (2016). Plea

counsel testified that he was aware that the defendant was not a

United States citizen but that he did not further inquire into

the defendant's immigration status, did not know that the

defendant was subject to removal proceedings at the time of the

plea, and did not himself advise the defendant of the

immigration consequences of pleading guilty to an aggravated

felony in this case.

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The judge discredited the defendant's testimony that he did

not discuss his criminal cases with the lawyer representing him

in the immigration proceedings and appears to have believed plea

counsel's opinion that the defendant knew about the consequences

of his plea. Nevertheless, where plea counsel's uncontroverted

testimony at the hearing was that he neither inquired about the

defendant's exact immigration status nor advised the defendant

of specific immigration consequences related to the plea, the

defendant met his burden of demonstrating that counsel's

performance fell below accepted standards. See Lavrinenko, 473

Mass. at 53 (defense counsel's failure to make "a reasonable

inquiry of the client regarding his or her citizenship and

immigration status" satisfied "deficient performance prong of

the ineffective assistance analysis"); DeJesus, 468 Mass. at 182

(defense counsel's failure to provide defendant with specific

advice about certainty of deportation satisfied performance

prong of ineffective assistance claim).

The defendant did not, however, adequately prove prejudice

stemming from counsel's failure to advise him of the

consequences of pleading guilty to an aggravated felony in this

case. This is because at the time of his guilty plea in this

case, he had already pleaded guilty in the Superior Court to

trafficking cocaine. Because trafficking cocaine is also an

aggravated felony, see 8 U.S.C. § 1101(a)(43)(B), the adverse

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consequences about which plea counsel in this case failed to

advise him had already been triggered by the time of the

defendant's plea to count 3 here. Any prejudice resulting from

the later plea and plea counsel's failure to warn him of the

consequences of that plea is, thus, "speculative." Commonwealth

v. DeSorbo, 49 Mass. App. Ct. 910, 911 (2000). In these

circumstances, we decline to disturb the judge's order dated

April 18, 2025, denying the defendant's motion to withdraw his

guilty plea.

Order dated April 18, 2025,
denying motion to withdraw
guilty plea, affirmed.

By the Court (Massing,
Ditkoff & Hand, JJ.7),

Clerk

Entered: June 23, 2026.

7 The panelists are listed in order of seniority.

10