Commonwealth v. Bienvenido Gonzalez.

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

22-P-575

COMMONWEALTH

vs.

BIENVENIDO GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order denying his motion for

new trial, brought pursuant to Padilla v. Kentucky, 559 U.S. 356

(2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). He

argues that he should have been permitted to withdraw his 2008

guilty plea because plea counsel was ineffective in failing to

provide accurate advice regarding the immigration consequences

of his plea. The Commonwealth concedes that the motion judge's

findings are insufficient to permit full review of his order

denying the motion. We vacate the order and remand the case for

further proceedings.

Background. The defendant was born in the Dominican

Republic in 1974 and came to the Boston area in 2003. In August

of 2008, police conducted a traffic stop of the car he was

driving, searched the car's center console, and found suspected
narcotics. The defendant was charged in District Court with

possession of a class B substance with intent to distribute in

violation of G. L. c. 94C, § 32A (a) -- an offense punishable by

imprisonment in State prison for not more than ten years -- as

well as various motor vehicle infractions. In December of 2008

he pleaded guilty to the drug offense and was placed on

probation for one year, which it appears he successfully

completed.

In 2021, represented by new counsel, the defendant filed a

motion for new trial, supported by his affidavit asserting that

plea counsel failed to advise him that his guilty plea and

probation "would cause [him] to be subject to mandatory

deportation and/or would prevent [him] from becoming a

naturalized citizen of the United States." His affidavit

further asserted that, had he been so advised, he would not have

pleaded guilty. Accompanying the motion was an affidavit from

plea counsel stating that counsel no longer had his original

file, had no specific memory of the defendant, and did "not

remember if [the defendant] understood the consequences of the

guilty plea after it was interpreted to him." The motion judge

held an evidentiary hearing, at which the defendant agreed with

his new attorney that had he known of the consequences of a

guilty plea, he would have asked plea counsel "to go to trial or

at least file a motion to suppress the evidence."

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In subsequently denying the motion, the judge found that

the defendant had completed a standard waiver of rights form

(also known as a "green sheet") that included a warning that a

guilty plea "may have" immigration consequences including

deportation. Although the defendant's native language was

Spanish, an interpreter was present at the change of plea

hearing, and the interpreter had signed the form to indicate

that it was translated for the defendant. Plea counsel also

signed the form to indicate that he had explained the stated

consequences to the defendant. The plea judge also signed the

form to indicate, among other things, that he had advised the

defendant that his guilty plea "may have" immigration

consequences including deportation. The judge's warning tracked

the language of G. L. c. 278, § 29D.

Based on these findings, the motion judge concluded:

"[T]he defendant has not overcome the presumption of
regularity that pertains with regard to the guilty plea he
entered 13 years ago. Commonwealth v. Grant, 426 Mass.
667, 671 (1998). I find that the defendant received a
favorable disposition given the seriousness of the case. I
do not credit his self-serving testimony that he was never
advised of potential immigration consequences or that he
would have rejected the offer had he been so advised."

The defendant now appeals.

Discussion. "A postsentence motion to withdraw a plea is

treated as a motion for a new trial." Commonwealth v. Conaghan,

433 Mass. 105, 106 (2000). We review a judge's decision denying

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such a motion "only to determine whether there has been a

significant error of law or other abuse of discretion."

Commonwealth v. Grace, 397 Mass. 303, 307 (1986). An abuse of

discretion is a "clear error of judgment in weighing the factors

relevant to the decision . . . such that the decision falls

outside the range of reasonable alternatives" (quotation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, as explained below, we agree with the Commonwealth that

the judge's findings do not address all of the factors relevant

to the decision and thus are insufficient to permit appellate

review.

To prevail on an ineffective assistance of counsel claim, a

defendant must establish that counsel's performance fell

"measurably below that which might be expected from an ordinary

fallible lawyer" and "likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We address

those issues in turn.

1. Plea counsel's performance. Deportation (or removal) 1

from the United States of a noncitizen who is convicted of an

"aggravated felony" is "practically inevitable," Commonwealth v.

Gordon, 82 Mass. App. Ct. 389, 398 (2012), quoting Padilla, 559

1 In places, Federal immigration law now uses the term "removal"
instead of "deportation." See Padilla, 559 U.S. at 364 n.6.

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U.S. at 364, or "presumptively mandatory." Commonwealth v.

Chleikh, 82 Mass. App. Ct. 718, 725 (2012), quoting Padilla,

supra at 369. Possession with intent to distribute a class B

substance is one such aggravated felony. See Commonwealth v.

DeJesus, 468 Mass. 174, 181 (2014). Accordingly, counsel "was

obligated to provide to his client, in language that the client

could comprehend, the information that presumptively mandatory

deportation would have been the legal consequence of pleading

guilty. Stated differently, counsel needed to convey that, if

Federal authorities apprehended the defendant, deportation would

be practically inevitable." Id.

Here, the defendant asserted that plea counsel never

advised him that his plea would cause him to be subject to

mandatory deportation. Although the judge found that the plea

judge had given the warning required by G. L. c. 278, § 29D

(stating that a guilty plea "may have" immigration consequences

including deportation), and that the defendant had signed the

green sheet containing the same warning, such warnings are "not

an adequate substitute for defense counsel's professional

obligation to advise her client of the likelihood of specific

and dire immigration consequences that might result from such a

plea." DeJesus, 468 Mass. at 177 n.3, quoting Clarke, 460 Mass.

at 48 n.20. The judge's "factual findings did not address the

issue whether the defendant was properly informed that the

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[offense to which he pleaded guilty] was a deportable offense,

and thus, if removal proceedings were commenced, his deportation

would be practically inevitable. Such fact finding is necessary

to resolve the performance prong of the Saferian analysis."

Commonwealth v. Henry, 88 Mass. App. Ct. 446, 454 (2015).

Of course, the judge was not required to credit the

defendant's affidavit that he had not been warned of mandatory

deportation, even where nothing in the record directly

contradicted the affidavit. See Commonwealth v. Scoggins, 439

Mass. 571, 578 (2003); Commonwealth v. Rzepphiewski, 431 Mass.

48, 55 (2000). However, the judge did not find that the

defendant had been so warned. 2 The case must therefore be

remanded for a finding whether plea counsel's performance was

deficient in this respect. Although the answer to that question

has been complicated by the passage of time, relevant evidence

may still exist, such as a transcript of the plea colloquy or

changes in the defendant's frequency of travel to his country of

2 The judge's decision relied in part on the presumption of
regularity recognized in Grant, 426 Mass. at 671, citing
Commonwealth v. Lopez, 426 Mass. 657, 661-663 (1998). Such a
presumption is of limited utility absent evidence that it was
counsel's regular practice, even before Padilla and Clarke, to
advise noncitizen clients that guilty pleas to certain offenses
would make deportation practically inevitable or presumptively
mandatory. Compare Henry, 88 Mass. App. Ct. at 454 (where plea
counsel's standard practice was to advise clients that "pleas
may have immigration consequences," remand necessary for finding
whether defendant advised that deportation presumptively
mandatory).

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origin after his guilty plea. See Commonwealth v. Rodriguez,

101 Mass. App. Ct. 54, 57 (2022).

2. Prejudice. If plea counsel's performance was

deficient, then the judge will face the question of resulting

prejudice. "[I]n 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). "At a minimum, this means that the

defendant must aver that to be the case." Clarke, supra.

"After establishing that a defendant has satisfied this baseline

requirement, a judge should proceed in two steps." Commonwealth

v. Lys, 481 Mass. 1, 7 (2018). First, the defendant "must

'convince the court that a decision to reject the plea bargain

would have been rational under the circumstances.'" Clarke,

supra at 47, quoting Padilla, 559 U.S. at 372. See Lys, supra

at 7.

"To prove [rationality], the defendant bears the
substantial burden of showing that (1) he had an
'available, substantial ground of defence' . . . that would
have been pursued if he had been correctly advised of the
dire immigration consequences attendant to accepting the
plea bargain; (2) there is a reasonable probability that a
different plea bargain (absent such consequences) could
have been negotiated at the time; or (3) the presence of
'special circumstances' that support the conclusion that he
placed, or would have placed, particular emphasis on

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immigration consequences in deciding whether to plead
guilty" (footnote omitted).

Clarke, supra at 47-48. "If the defendant does establish at

least one of the Clarke factors, then the judge must move to the

second step and evaluate whether, under the totality of the

circumstances, there is a reasonable probability that a

reasonable person in the defendant's circumstances would have

gone to trial if given constitutionally effective advice." Lys,

481 Mass. at 7-8.

Here, the defendant's affidavit asserted that if he had

been properly advised of the immigration consequences, he would

not have pleaded guilty. And at the evidentiary hearing, he

agreed that he would have asked plea counsel "to go to trial or

at least file a motion to suppress the evidence." The defendant

argues that such a decision would have been rational based on

the first Clarke factor, i.e., that he had an available,

substantial ground of defense in the form of a motion to

suppress. 3 The defendant's appellate brief sets forth several

3 The defendant's motion also suggested that he had an available
and substantial defense because there was insufficient evidence
of his intent to distribute. He did not, however, assert any
reasonable probability that a better plea bargain could have
been negotiated at the time (the second Clarke factor). The
judge found that the disposition the defendant received -- one
year of probation on a conviction punishable by up to ten years
in State prison -- was "favorable." Nor has the defendant made
any argument based on the third Clarke factor, 460 Mass. at 47-
48, "special circumstances."

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potential grounds for such a motion, including, in essence, that

the search of the car's center console was unreasonable under

the circumstances and thus unlawful. "Because the defendant

waived the motion to suppress when he pleaded guilty, on his

motion to vacate the plea he [bears] the burden of showing that

he would have succeeded on the motion to suppress." Rodriguez,

101 Mass. App. Ct. at 58 n.5.

Accordingly, if on remand the judge finds plea counsel's

performance to have been deficient, the judge should further

address whether the defendant had an available and substantial

ground of defense. If the judge concludes that he did, the

judge should proceed to the "second step" described in Lys, 481

Mass. at 7-8.

Conclusion. The order denying the motion for new trial is

vacated, and the case is remanded for further proceedings

consistent with this decision.

So ordered.

By the Court (Sacks, Grant &
Smyth, JJ. 4),

Clerk

Entered: August 21, 2023.

4 The panelists are listed in order of seniority.

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