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

23-P-1089

COMMONWEALTH

vs.

ANGEL CAMACHO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal is from the denial of the defendant's second

motion for new trial, by which he sought to withdraw his 2013

guilty plea to possession of cocaine with the intent to

distribute, and from the denial of his motion for

reconsideration. The defendant raises a variety of claims, none

of which merit relief, and we affirm both orders.

1. Background. In 2008, the defendant was indicted for,

among other crimes,1 trafficking in over 200 grams of cocaine.

In 2009, he pleaded guilty to the lesser-included charge of

1The defendant was also indicted for trafficking cocaine
within one hundred feet of a public park, unlawfully
distributing cocaine, and unlawfully distributing cocaine within
one hundred feet of a public park.
trafficking between twenty-eight and one-hundred grams of

cocaine, and he was sentenced to six to eight years in state

prison. Pursuant to the plea agreement, the Commonwealth filed

a nolle prosequi on the remaining charges.

In 2012, the defendant filed a motion for new trial to

withdraw his guilty plea based on Annie Dookhan's misconduct at

the William A. Hinton State Laboratory. Dookhan had been the

confirmatory chemist for the cocaine in this case. In 2013,

with the Commonwealth's assent, the motion was allowed. At the

same hearing, the defendant then pleaded guilty again, but this

time to the even lesser reduced offense of possession of cocaine

with the intent to distribute. This lesser offense did not

carry a mandatory minimum sentence, and the defendant was

sentenced to serve three and one-half years to three and one-

half years and one day, which was deemed served at the time of

the plea.

As part of this guilty plea, in addition to signing a

traditional waiver of rights form, the defendant signed a

"Dookhan-specific" waiver, which provided, in relevant part:

"I am also waiving, after discussion with my lawyer, the
right to file a motion to vacate this guilty plea based on
information that may come to light in the future about the
state laboratory. . . . I understand that if I agree to
plead guilty and if I do in fact plead guilty that I am
agreeing to give up and waive my right to an appeal. I
understand that I am giving up my right to appeal from my
conviction."

2
By signing this waiver, the defendant waived his right to

challenge his guilty plea based on the Hinton Lab scandal.

Despite that waiver, in 2018, the defendant filed a motion

for new trial, this time to withdraw his 2013 guilty plea. In

this motion, he claimed that Bridgeman v. District Attorney for

the Suffolk Dist., 471 Mass. 465, 477 (2015) (Bridgeman I),

S.C., 476 Mass. 298 (2017) (Bridgeman II), should be applied

retroactively to him, which would invalidate his plea because it

was made under the threat of his original charges and not under

the protection of the Bridgeman I sentencing cap. The motion

judge did not reach this claim. Instead, based on the

defendant's Dookhan-specific waiver, she denied the motion.

In Commonwealth v. Camacho, 483 Mass. 645 (2019), the

Supreme Judicial Court affirmed the denial of the motion but did

so on different grounds. The court held that because the

defendant ultimately "was not subjected to harsher punishment

the second time around -- precisely what later would be required

by the then-undecided Bridgeman I" decision, id. at 652, and

because the charge was reduced from the original charge of

trafficking to possession with intent to distribute and his

sentence was reduced to time served, the defendant "essentially

received the protection of the Bridgeman sentence cap." Id. at

653. The court did not address the validity of the Dookhan-

specific waiver. Id. at 653 n.6.

3
Undeterred, in 2022, the defendant filed a second motion

for new trial to withdraw his 2013 guilty plea. This motion

raised several issues discussed below. The defendant properly

concedes that all but the last claim are waived because they

could have been raised in his 2018 motion for new trial. In

2023, a Superior Court judge denied the motion without a

hearing, and later denied a motion for reconsideration.2

2. Discussion. "A plea of guilty and the ensuing

conviction comprehend all of the factual and legal elements

necessary to sustain a binding, final judgment of guilt and a

lawful sentence." United States v. Broce, 488 U.S. 563, 569

(1989). "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). "A strong policy of finality limits the

grant of new trial motions to exceptional situations, and such

motions should not be allowed lightly." Commonwealth v. Gordon,

82 Mass. App. Ct. 389, 394 (2012). See Commonwealth v. Lopez,

426 Mass. 657, 662–663 (1998). Nonetheless, "[u]nder Mass. R.

Crim. P. 30 (b), a judge may grant a motion for a new trial any

2 Despite noticing an appeal from the denial of his motion
to reconsider, the defendant's brief mentions that denial in a
single sentence that does not suffice as an appellate argument.
See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019).

4
time it appears that justice may not have been done. A motion

for a new trial is thus committed to the sound discretion of the

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

Commonwealth v. Hunt, 73 Mass. App. Ct. 616, 619 (2009). Also,

the defendant "bears the burden of proof on a motion for a new

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

Finally, claims that could have been raised in a prior

motion for new trial, but were not, are treated as waived. See

Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). See also

Commonwealth v. Deeran, 397 Mass. 136, 139 (1986) (defendant

must raise all reasonably available grounds for relief in first

motion pursuant to Mass. R. Crim. P. 30 [b] or "those claims are

lost"); Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass.

1501 (2001) ("All grounds for relief claimed by a

defendant . . . shall be raised by the defendant in the original

or amended motion [for a new trial]. Any grounds not so raised

are waived"). A defendant's waived claims are reviewed only to

determine if error occurred, and if so, whether it created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Randolph, 438 Mass. 290, 293-295 (2002). "Errors of this

magnitude are extraordinary events and relief is seldom

granted." Id. at 297.

A. Ineffective assistance of counsel. The defendant

claims that neither his original plea counsel (counsel 1), nor

5
his 2013 plea counsel (counsel 2), ever discussed the

immigration consequences of his guilty pleas.3 In these

circumstances, "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),

abrogated on other grounds by Chaidez v. United States, 568 U.S.

342 (2013). See Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). To satisfy the first prong, the defendant must

demonstrate 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, supra at 47, quoting

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

In addition, the defendant must "convince the court that a

decision to reject the plea bargain would have been rational

under the circumstances." Clarke, 460 Mass. at 47, quoting

Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

3 The defendant further claimed in his affidavit that he was
not informed by any of his previous attorneys that his
conviction in this case was considered an "aggravated felony"
for immigration purposes and thus "would bar almost every form
of defense to removal" and ensure that he "would be deported to
Colombia." Neither of his attorneys, however, was able to
substantiate those assertions.

6
"To prove the latter proposition, 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
immigration consequences in deciding whether to plead
guilty" (footnote omitted).

Clarke, supra at 47-48, quoting Saferian, 366 Mass. at 96, and

Hill, 474 U.S. at 60.

As the motion judge determined, counsel 2 understandably

expected that immigration consequences would have been handled

by original plea counsel (on the much more serious drug

trafficking charges), and he conducted no further inquiry into

the defendant's immigration status at the time of the 2013 plea,

nor did he investigate any potential avenues of relief from any

immigration consequences at that time on the reduced drug

charge.

At the time of the original plea, counsel 1 determined that

the defendant was not a United States citizen, and that the plea

would, in fact, produce negative immigration consequences for

him. However, counsel 1 stated much later that he does not

"recall" having a "specific discussion" with the defendant about

deportation consequences. As the motion judge properly held,

counsel 1's failure to "recall" does not establish a likelihood

7
that such a discussion did not occur. See Lopez, 426 Mass. at

665. Nevertheless, although the motion judge found it

"extremely unlikely" that counsel did not discuss removal

proceedings, he determined (and we will assume) that the

defendant did not receive constitutionally sufficient

immigration advice.

However, as the motion judge properly held, the defendant

failed to establish that rejecting the plea would have been

rational under the circumstances. First, the defendant did not

demonstrate that he had a substantial ground of defense that he

would have pursued if he had been equipped with proper advice.

The police witnessed the defendant sell cocaine, and later

seized from the car the defendant was driving at least 200 grams

of cocaine and other items that were consistent with the drug

trade.4 Although Dookhan was the confirmatory chemist, and thus,

initial certification testing could not have been used as

evidence, there is nothing in the record indicating that the

drugs seized could not have been retested. Moreover, there was

other circumstantial evidence that showed that the substance

seized was cocaine, including the car passenger's statement to

police that he had bought cocaine from the defendant in exchange

In addition, after police stopped the van the defendant
4

was driving, he got out and spontaneously stated, "I have no
drugs."

8
for $200. Contrast Commonwealth v. Sepheus, 468 Mass. 160, 165-

167 (2014).

Second, there was not a reasonable probability that a

different plea bargain could have been negotiated at the time.5

The bargain the defendant did obtain provided him a very lenient

sentence, which was deemed served. If he had taken the risk of

going to trial, and was found guilty, the defendant would have

received a minimum mandatory sentence of at least twelve years

and up to twenty years in state prison. See Commonwealth v.

Pike, 53 Mass. App. Ct. 757, 763 (2002); G. L. c. 94C,

§ 32E (b) (4). Also, any plea deal the defendant reasonably

could have negotiated would have resulted in a conviction for an

aggravated felony, thereby subjecting the defendant to the same

dire immigration consequences. See 8 U.S.C. § 1101(a)(43)(B)

(illicit trafficking in a controlled substance is an aggravated

felony).

Third, as the motion judge held, the defendant did not

demonstrate the presence of "special circumstances" showing that

he "placed, or would have placed, particular emphasis on

immigration consequences in deciding whether to plead guilty."

Commonwealth v. DeJesus, 468 Mass. 174, 183 (2014). In his

affidavit, the defendant claimed to have been a victim of

5 The defendant does not argue otherwise.

9
extortion and threats of violence to his family, that he had

been in the United States since 2002, and that he considered

Boston to be his home with his wife and children. The motion

judge expressly discredited the defendant's self-serving

averments, which was well within his discretion to do.6

In summary, the defendant did not establish "special

circumstances," nor that it would have been rational to reject

the plea bargain under the circumstances. Accordingly, the

defendant failed to establish ineffective assistance of counsel.7

As a result, and because the claim is waived, there was no risk

that justice miscarried.8

B. The immigration warning. The defendant also claims

that the plea judge provided an inadequate immigration warning

6 The defendant offered no affidavits from his wife, son, or
daughter, nor did he make any other showing that he is a primary
caregiver, that his family is dependent on him for financial
support, or that he has unique needs. See Commonwealth v.
Rodriguez, 101 Mass. App. Ct. 54, 59-60 (2022).

7 In this posture, the defendant did not establish his claim
that counsel was ineffective by not raising the same issues in
the 2018 motion for new trial. See Commonwealth v. Curtis, 417
Mass. 619, 624 n.4 (1994) (if counsel's omission does not
present substantial risk of a miscarriage of justice, no basis
for ineffective assistance of counsel claim).

8 The defendant also claims that counsel 2 was ineffective
due to his lack of preparation for the 2013 plea hearing. As
the motion judge determined, and contrary to the defendant's
claim, the record shows that counsel 1 correctly considered the
case against the defendant to be triable. Given what counsel 2
then knew, his representation of the defendant was competent,
and he negotiated a favorable disposition for the defendant.

10
pursuant to G. L. c. 278, § 29D. This claim is also waived, as

it could have been raised in the defendant's first motion to

withdraw his 2013 guilty plea. Accordingly, we review to

determine if error occurred, and if so, whether it created a

substantial risk of a miscarriage of justice. See Randolph, 438

Mass. at 293-295.

A defendant pleading guilty must be advised as follows:

"If you are not a citizen of the United States, you are
hereby advised that the acceptance by this court of your
plea of guilty, plea of nolo contendere, or admission to
sufficient facts may have consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization, pursuant to the laws of the United States."

G. L. c. 278, § 29D. See Commonwealth v. Petit-Homme, 482 Mass.

775, 779 (2019); Commonwealth v. Hilaire, 437 Mass. 809, 819

(2002).

Here, the plea judge warned the defendant as follows:

"Now, Mr. Camacho, I want to make sure you understand that
if you are not a citizen of the United States, a guilty
finding here would affect your status in the country
including -- including certain deportation, the denial of
naturalization, and exclusion from admission to the United
States if you were to leave the country and try to come
back in. Do you understand that?"

The defendant stated that he understood the immigration

consequences, and when asked, he told the judge he still wanted

to plead guilty.

The defendant's claimed inadequacy is not that he was not

warned of the potential immigration consequences. Contrast

11
Hilaire, 437 Mass. at 818 (judge failed to "advise the defendant

of the three immigration consequences that might result from his

admission"). Instead, he claims that the plea judge erred by

advising him that "a guilty finding here would affect your

status in the country," rather than using the statutory language

of "your plea of guilty . . . may have consequences of

deportation, exclusion from admission . . . pursuant to the laws

of the United States." According to the defendant, "a

reasonable non-English-speaking defendant would understand" this

slight change in language "to mean that a guilty finding after

trial would result in 'certain deportation.'" We disagree.

Although judges are not required to read the § 29D warning

verbatim, it is certainly the better practice to do so, but we

nonetheless hold that the judge essentially did so in this case.

See Commonwealth v. Lamrini, 27 Mass. App. Ct. 662, 667 (1989).

Despite his assertion that a language barrier affected his

understanding of the warning he received, the defendant's plea

was taken with the assistance of an interpreter, whom the

defendant expressly told the plea judge that he understood.

Furthermore, the defendant's affidavit in support of the motion

for new trial is silent on this claimed misunderstanding that

appears in his brief. In any event, as the motion judge

determined, the plea judge "was advising [the defendant] in the

context of his new, second guilty plea in this case, and her

12
specific reference to a 'guilty finding here' could only be

interpreted to mean the subject plea." There is no support for

the defendant's claim. Accordingly, there was no error, and

thus, there was no risk that justice miscarried.

C. The Dookhan-specific waiver. The defendant signed a

Dookhan-specific waiver as part of his 2013 guilty plea, which

waived his right to challenge the guilty plea based on the

Hinton Lab scandal. In his 2018 motion for a new trial, the

defendant claimed that the waiver was void as against public

policy. On appeal, as noted above, the Supreme Judicial Court

did not reach the issue of the waiver. See Camacho, 483 Mass.

at 653 n.6.

In his second motion for new trial to withdraw his 2013

guilty plea, the defendant again challenges the validity of the

waiver but on different grounds. Now he claims that that the

waiver is unenforceable because it violates Mass. R. Prof. C.

3.8 (h), as appearing in 473 Mass. 1301 (2016). This claim is

waived as well, and devoid of merit.

Rule 3.8 (h) states that a prosecutor in a criminal case

shall "refrain from seeking, as a condition of a disposition

agreement in a criminal matter, the defendant's waiver of claims

of ineffective assistance of counsel or prosecutorial

misconduct." Mass. R. Prof. C. 3.8 (h). The defendant claims

in his briefing that, in Bridgeman II, the Supreme Judicial

13
Court held that "Dookhan's misconduct was deemed prosecutorial

misconduct, as it was 'attributable to the government' for

purposes of a motion for a new trial" (emphasis added).

However, this assertion mischaracterizes the court's holding in

Bridgeman II. Indeed, what the court actually held was that

"[i]n light of the massive number of relevant Dookhan defendants

and the scope of misconduct attributable to the government

(albeit not to the prosecutors), it is only fair that district

attorneys make an individualized determination whether a

conviction warrants burdening the court system with the

adjudication of a motion for a new trial" (emphasis added).

Bridgeman II, 476 Mass. at 328.

Furthermore, while the defendant is correct that the

Supreme Judicial Court stated in Commonwealth v. Cotto, 471

Mass. 97, 109 (2015), that Dookhan "was an agent of the

prosecution team," it did so only in the context of concluding

that Dookhan "was an agent of the Commonwealth whose misconduct

was attributable to the government for the limited purposes of

the Ferrara analysis" (emphasis added). Id., citing

Commonwealth v. Scott, 467 Mass. 336, 349-350 (2014). That is,

Dookhan was a Hinton Lab chemist qua Commonwealth, and the

import of rule 3.8 (h) only pertains to prosecutors qua

prosecutors. As the motion judge properly determined, the

waiver targets the Hinton Lab scandal, not the prosecutors in

14
this case, and the waiver does not violate rule 3.8 (h).

Because there was no error, there is no risk that justice

miscarried.

D. Bridgeman II and the Hinton Lab Initiative. Finally,

the defendant claims that the Fourteenth Amendment's Equal

Protection Clause entitles him to the remedy provided to

thousands of similarly situated Dookhan defendants under

Bridgeman II and the Hinton Lab Initiative,9 whose convictions

were vacated and dismissed with prejudice. We disagree.

The "equal protection mandate is essentially a direction

that all persons similarly situated should be treated alike."

Moore v. Executive Office of the Trial Court, 487 Mass. 839, 848

(2021) (quotation omitted). "An equal protection claim can only

succeed if a plaintiff establishes that government action

9 The 2021 Hinton Lab Initiative was created by the Suffolk
County District Attorney's Office to establish a broad remedy
for criminal defendants subject to drug convictions resulting
from analyses done at the Hinton Lab between 2003 and 2012.
Under this program, as a matter of discretion, the District
Attorney would classify every Hinton Lab drug conviction,
regardless of the chemist that performed the analysis, as a
"List Two" case under the Bridgeman I protocol. "List Two"
convictions are those that the District Attorney moved to vacate
and dismiss with prejudice as part of her individualized review
following the Bridgeman I protocol. As an exercise of
discretion, the District Attorney endeavored to treat every
defendant with a Hinton Lab drug conviction in the same manner
as "List Two" individuals, i.e., their convictions would be
vacated and dismissed with prejudice.

15
discriminates against similarly situated persons." DuPont v.

Commissioner of Correction, 448 Mass. 389, 399 (2007).

Here, the defendant claims that because he moved to

withdraw his 2013 plea during the early years of the Hinton Drug

Lab scandal, he was "disadvantaged relative to the thousands of

Dookhan defendants whose cases were summarily vacated and

dismissed pursuant to Bridgeman II." However, this claim is

barred due to the Dookhan-specific waiver he signed, which

precludes the defendant from challenging his plea based on

Dookhan's misconduct and any "information that may come to light

in the future about the state laboratory."

Even if the claim was not precluded by his Dookhan-specific

waiver, the claim itself is waived and it is without merit. As

the motion judge properly held, because Bridgeman II was decided

in 2017, and this claim was not raised in the 2018 motion for

new trial, it, too, is waived. See Deeran, 397 Mass. at 139;

Mass. R. Crim. P. 30 (c) (2).

Furthermore, there is no risk that justice miscarried where

the Supreme Judicial Court's decision in Bridgeman II suggests

the "relevant Dookhan defendants" do not include those "who

already moved to vacate their pleas." Bridgeman II, 476 Mass.

at 309 n.11. By the time the court decided Bridgeman II in

2017, the defendant's case had already been decided in the

Superior Court as a result of his 2013 guilty plea. See

16
Commonwealth v. Cabrera, 449 Mass. 825, 830 (2007) ("A guilty

plea, once accepted, leads to a final judgment of conviction;

like a verdict of guilty, it is conclusive"). After that, he

obtained even further relief as a result of his 2018 motion for

new trial. Bridgeman II relief is not available to this

defendant. Accordingly, the defendant is not similarly situated

with those who received relief under Bridgeman II.

Finally, although not waived, the defendant's claim that to

not provide him relief courtesy of the Hinton Lab Initiative

would violate the Equal Protection Clause suffers a similar

fate. As the motion judge properly determined, the defendant

has not demonstrated that other Dookhan defendants receiving the

benefits of the Hinton Lab Initiative signed Dookhan-specific

waivers, such as the one he signed, whereby he specifically

waived his right to challenge his guilty plea based on the

Hinton Lab scandal. In this posture, the defendant has failed

to establish that he is similarly situated to the defendants who

17
benefitted from the District Attorney's exercise of discretion.

See DuPont, 448 Mass. at 399.

Order denying motion for new
trial affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Meade,
Englander & Hodgens, JJ.10),

Assistant Clerk

Entered: June 5, 2024.

10 The panelists are listed in order of seniority.

18