COMMONWEALTH vs. ALESSANDRO M. MARINHO.

SPINA, J. On February 17, 2010, a jury in the District Court convicted the defendant, Alessandro M. Marinho, and a codefendant, Justin Parietti, each of one count of assault and battery causing serious bodily injury pursuant to G. L. c. 265, § 13A (b). The defendant was acquitted of assault and battery with a dangerous weapon pursuant to G. L. c. 265, § 15A (b). [Note 1] He was sentenced to two and one-half years in a house of correction, nine months to serve with the balance suspended.

The defendant filed a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), alleging ineffective assistance of counsel for his lawyer's failure (1) to advise him of the immigration consequences of an assault and battery conviction, (2) to explore a plea resolution, and (3) to advocate for a sentence that might have mitigated such immigration consequences. The motion was denied following a nonevidentiary hearing. The defendant filed timely appeals from both the conviction and the denial of his motion for a new trial. We transferred the case here on our own motion.

The defendant alleges error in (1) the denial of his motion for a required finding of not guilty; (2) the denial of his motion to dismiss based on the loss of exculpatory evidence; (3) the judge's failure to instruct the jury on multiple defendants; and (4) the denial of his motion for a new trial. [Note 2] We affirm the conviction and the order denying the defendant's motion for a new trial.

1. Background. The jury could have found the following facts. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We reserve other details for discussion of specific issues.

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On December 22, 2008, Sam Scherer and his girl friend, Jessica Cardinal, were at Cardinal's apartment in Wellfleet. Cardinal shared the apartment with Parietti, who lived in an upstairs room. In Parietti's room was a television that another man, Zack Store, owned and had left in the apartment.

That evening, Store went to the apartment and had a discussion with Scherer in which Store agreed to sell the television to Scherer. Store and Scherer retrieved the television from Parietti's room and installed it in the living room. Store left the apartment.

Shortly thereafter, Parietti arrived at the apartment with two friends, the defendant and Hunter Carwile. After Parietti saw that the television was no longer in his room, he and Scherer stepped outside and a physical fight ensued. Testimony about the particulars of the fight differed. Suffice it to say that the two men fell to the ground with Scherer positioned on top of Parietti. [Note 3] Parietti began making choking sounds. The defendant entered the fray when Scherer was still on top of Parietti, and he began to fight Scherer. After the fight, Scherer was brought to Cape Cod Hospital but then was transported to Beth Israel Deaconess Medical Center. He had a fractured nose, cheekbones, and orbital (eye socket) bones. As a consequence of the fight, Scherer had reconstructive surgery on his face. His vision was affected by the altercation; he had double vision for three to four months after the assault, and his vision at the time of trial had not been restored to normal. The defendant is not a United States citizen and was in the United States illegally. At the time of this appeal, the defendant had been deported.

2. Motion for a required finding of not guilty. The defendant contends that the judge erred in denying his motion for a required finding of not guilty. Specifically, he argues that the evidence was insufficient to establish that (1) Scherer's injuries were "serious" within the meaning of G. L. c. 265, § 13A (b) (i), and (2) the defendant caused Scherer's injuries. The issue whether the evidence was sufficient to establish that Scherer's injuries were "serious" was preserved for appellate review by a timely objection at trial, and by the defendant's motion for a required

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finding of not guilty. We thus review the denial of this aspect of the defendant's motion under the standard set forth in Commonwealth v. Latimore, supra at 677-678. The issue of the sufficiency of the evidence of causation was not preserved. We review this unpreserved error under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Melton, 436 Mass. 291, 294 n.2 (2002).

In reviewing the sufficiency of the evidence, we must look at the evidence in a light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements beyond a reasonable doubt. Commonwealth v. Latimore, supra at 676-677. The Commonwealth need only present evidence that allows a jury to infer essential facts, Commonwealth v. Merola, 405 Mass. 529, 533 (1989), and the fact "[t]hat contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty." Commonwealth v. Merry, 453 Mass. 653, 662 (2009). As the defendant had two reasons for contesting the denial of the motion for a required finding, we take each in turn.

a. Serious bodily injury. "[S]erious bodily injury" is defined as "bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death." G. L. c. 265, § 13A (c). Loss or impairment of a bodily function need not be permanent to meet the definition of "serious bodily injury." See Commonwealth v. Baro, 73 Mass. App. Ct. 218, 219-220 (2008) (punches and kicks to head resulting in broken bones and temporary loss of sight for one and one-half months constitutes "serious bodily injury"); Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 162, 164 (2005) (punches resulting in broken jaw and several weeks of tube-feeding constitutes "serious bodily injury").

The defendant argues that there was insufficient evidence that Scherer suffered loss or impairment of a bodily function, limb, or organ. He relies on the hospital records and claims that they offer no evidence of impairment to Scherer's vision. The defendant paints an incomplete picture of the evidence of Scherer's significant vision loss following the violent confrontation with the defendant. Although some of the medical records do not reflect that Scherer's vision was impaired, other records state

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that Scherer presented with "blurred vision" and "vision changes." Scherer also testified to his impaired vision following the fight with Parietti and the defendant. He testified that he had to return to the hospital multiple times after undergoing facial reconstruction surgery to ensure that his vision kept improving. He stated that he experienced double vision for three or four months following the altercation and that he still was having trouble seeing at the time of trial, which was over a year after the fight. This testimonial evidence of significant and lasting vision impairment, even if it conflicts with some of the medical records, indicates that Scherer's injuries were not -- as the defendant suggests -- mere "facial injuries resulting from a fistfight." To the contrary, the evidence was such that a reasonable jury could have found "serious bodily injury" within the meaning of G. L. c. 265, § 13A (b) (i).

b. Whether the defendant caused Scherer's injuries. The defendant also asserts that the judge erred in denying his motion for a required finding of not guilty because there was insufficient evidence to establish that the defendant's and not Parietti's actions caused Scherer's injuries. He suggests that the combination of the defendant's acquittal of assault and battery with a dangerous weapon and the fact that the defendant entered the fight after Parietti is such that no reasonable jury could have found the essential causation element.

At the close of all the evidence, the Commonwealth requested and the judge denied a joint venture jury instruction. Therefore, the burden was on the Commonwealth to prove causation beyond a reasonable doubt as to the defendant. Because the defendant did not preserve the causation issue, we review the denial of the motion to determine whether any error resulted in a substantial miscarriage of justice. Commonwealth v. Melton, supra. We conclude that there was none.

The Commonwealth may establish causation in an assault and battery case by proving beyond a reasonable doubt that the defendant either directly caused or "directly and substantially set in motion a chain of events that produced" the serious injury in a natural and continuous sequence. See Instruction 6.160 of the Criminal Model Jury Instructions for Use in the District Court (2009). Cf. Commonwealth v. Smiley, 431 Mass. 477, 489

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n.9 (2000). The judge correctly instructed the jury on these methods of proving causation. Although the evidence of who did what to whom was conflicted, it did not thereby become insufficient. The jury could have found that the defendant caused serious injury (fractured orbital bones and double vision) to Scherer by kicking Scherer in the head while Scherer was holding Parietti on the ground, thereby rendering Scherer unconscious. The fact that the defendant was acquitted on the assault and battery with a dangerous weapon charge [Note 4] does not disprove that there was direct contact attributable solely to the defendant. [Note 5] Because there was sufficient evidence to support the jury's verdict, we conclude there was no error in the denial of the motion for a required finding of not guilty.

3. Motion to dismiss based on the loss of exculpatory evidence. The defendant asserts error in the denial of his motion to dismiss the complaint where the Commonwealth allegedly lost potentially exculpatory evidence, namely a statement Scherer reportedly wrote following the altercation with Parietti and the defendant. The issue was preserved at trial. The basis for the motion was the testimony of a police officer who arrived on the scene following the altercation. He recalled reading Scherer's statement but was unsure what had become of it. He did not know whether Scherer had ever given the statement to the police or if the police had misplaced it. It was the defendant's position that any

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discrepancies between the statement and Scherer's testimony would have undercut Scherer's credibility as a witness; therefore, the defendant claims, he was deprived of a meaningful opportunity for cross-examination by the Commonwealth's failure to produce the statement.

To state a claim that the government has lost or destroyed potentially exculpatory evidence, the defendant has the burden of establishing, based on concrete evidence, that there was a reasonable possibility that the allegedly lost statement would have supported his case. See Commonwealth v. Williams, 455 Mass. 706, 718 (2010). The trial judge then must "weigh the materiality of the evidence and the potential prejudice to the defendant, as well as the culpability of the Commonwealth and its agents." Commonwealth v. Harwood, 432 Mass. 290, 295 (2000). We, in turn, review the judge's determination for clear error. See id.

We conclude that the judge did not err in denying the motion to dismiss. The defendant presented no evidence whatsoever of the contents of the elusive statement. His claim that it would have been inconsistent, much less materially inconsistent, is speculative. Therefore, he did not meet his threshold burden of proving that the statement was exculpatory. [Note 6]

4. Failure to instruct the jury on multiple defendants. The judge denied the Commonwealth's request to instruct the jury on joint venture. [Note 7] The defendant alleges error in the judge's failure to use the model jury instruction applicable to cases with multiple defendants, and to his use of the singular "defendant" as opposed to the plural "defendants" in instructing the jury. The consequence, according to the defendant, was avoidable jury confusion as to which of the two defendants was responsible for each distinct act.

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We evaluate jury instructions as a whole and interpret them as would a reasonable juror. Commonwealth v. Trapp, 423 Mass. 356, 361, cert. denied, 519 U.S. 1045 (1996). We do not require that judges use particular words, but only that legal concepts are properly conveyed. Id. at 359. Because the defendant did not object to the jury instruction at trial, we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Belcher, 446 Mass. 693, 696 (2006).

The defendant's argument is unpersuasive. In his instructions, the judge emphasized that each defendant faced distinct charges and differentiated between the charges against each individual defendant. Significantly, he instructed the jury that the "burden of the Commonwealth is to prove every single element of the charge against each defendant beyond a reasonable doubt." In so doing, the judge correctly conveyed the law. Because there was no error of law, there was no substantial miscarriage of justice. [Note 8] See Commonwealth v. Randolph, 438 Mass. 290, 303 (2002).

5. Denial of the motion for a new trial. The defendant moved, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), for a new trial on the ground that he was deprived of his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. His counsel's alleged failings were many, [Note 9] and they occurred at different stages of the litigation. Counsel's purported deficiencies included the failure (1) to advise the defendant prior to trial of the potential immigration consequences of an assault and battery conviction at trial, (2) to discuss the possibility of a plea resolution with the

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defendant, and (3) to advocate for a sentence that might have mitigated the immigration consequences of a conviction.

A hearing on the motion was held in June, 2012, after which the motion was denied. We review the denial of the motion for abuse of discretion. See Commonwealth v. Lucien, 440 Mass. 658, 670 (2004). A defendant bears the burden of proof on a motion for a new trial, [Note 10] see Commonwealth v. Watson, 455 Mass. 246, 256 (2009), and a judge is entitled to discredit affidavits he or she does not find credible, see Commonwealth v. Grace, 370 Mass. 746, 751-752 (1976), citing Commonwealth v. Heffernan, 350 Mass. 48, 53, cert. denied, 384 U.S. 960 (1966). We conclude that the judge did not abuse his discretion and affirm the order denying the motion for a new trial. We reach this conclusion because the defendant offered no proof that there was "a 'reasonable probability' that 'but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). See Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012) (Frye); Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012) (Lafler).

The two-part test a defendant must satisfy to prevail on a claim of ineffective assistance of counsel in Massachusetts is familiar. The defendant must show that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that his performance "likely deprived the defendant of an otherwise available, substantial ground of defence." [Note 11] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (Saferian). Although the defendant's claim fails for lack of proof of prejudice, we consider whether defense

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counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," id., before we address the prejudice issue.

a. Professional standards. We consider defense counsel's performance under the first prong of Saferian in light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (Padilla), a recent case in which the United States Supreme Court held that counsel must advise a defendant that a guilty plea may carry deportation consequences. In Padilla, supra at 1480, the Court chronicled the changes in immigration law that have led to an increase in deportable offenses and concluded that "deportation is an integral part -- indeed, sometimes the most important part," of the criminal process. Because of this intimate connection between the criminal process and deportation, the Court declined to regard deportation as a mere "collateral consequence" of criminal conviction. Underlying the Supreme Court's decision that deportation consequences are not "collateral" to the criminal justice process and thus not removed from a noncitizens' Sixth Amendment right to counsel is a deep appreciation of the "seriousness of deportation" for noncitizen defendants. Id. at 1486. Indeed, "[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." Id. at 1483, quoting Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 323 (2001). With the changed landscape following Padilla in mind, we briefly address each of counsel's alleged failings individually.

i. Failure to advise defendant of immigration consequences of conviction at trial. An initial issue in this appeal is whether the Supreme Court's holding in Padilla, supra at 1486, that defense counsel must advise noncitizen clients that pleading guilty may result in deportation, requires counsel to inform a noncitizen client that conviction at trial may similarly carry immigration consequences. We hold that it does. Although Padilla and its progeny, Frye, supra, and Lafler, supra, concerned the duties of counsel in the plea context, the language of Padilla, much of which this court acknowledged in Commonwealth v. Clarke, 460 Mass. 30, 42-46 (2011) (Clarke), implicates counsel's duties in the context of advice rendered to clients about immigration consequences more broadly. For example, the Court states

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that counsel has an affirmative duty [Note 12] to "advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." [Note 13] Padilla, supra at 1483. See Clarke, supra at 42. Such broad language suggests that Padilla imposes on defense counsel a duty to inform a noncitizen client that conviction, whether by plea or by trial, may carry adverse immigration consequences. [Note 14] Padilla, supra at 1482-1483. Clarke, supra. Moreover, national guidelines [Note 15] dictate "that counsel must advise her client regarding the risk of deportation," without specific reference to conviction by guilty plea. Padilla, supra at 1482, citing National Legal Aid & Defender Ass'n, Performance Guidelines for Criminal Representation § 6.2 (1995). See J.W. Hall, Jr., Professional Responsibility in Criminal Defense Practice § 10:29 (3d ed. 2005) ("The failure to advise a defendant that he could be deported if convicted . . . would constitute ineffectiveness"). Similarly, the expectation in the Massachusetts legal community is that defense counsel should inform a client about immigration consequences associated with criminal conviction, however imposed. See Committee for Public Counsel Services, Assigned Counsel Manual c. 4, at 15 (rev. June 2011) (CPCS Manual) ("Counsel must also advise the client . . . of the consequences of a conviction, including . . . possible immigration consequences including but not limited to deportation,

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denial of naturalization or refusal of reentry into the United States"). [Note 16] Because "[i]t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation," Clarke, supra at 46, quoting Padilla, supra at 1484, and the defense counsel in the present case failed to do so, we conclude that his performance fell "measurably below that which might be expected from an ordinary fallible lawyer." See Saferian, supra.

ii. Failure to discuss plea resolution with defendant. [Note 17] Padilla is not directly applicable outside the context of defense counsel's duty to advise a noncitizen client that immigration consequences may flow from conviction, whether by plea or by trial. Immigration consequences may nevertheless factor into litigation strategy, including at plea and sentencing stages. That immigration consequences inform trial strategy is appropriate given the grave impact involvement with the criminal justice system can have on a noncitizen defendant's immigration status and the view, following Padilla, that immigration consequences like

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deportation are no longer collateral to conviction. With these ideas in mind, we turn to the defendant's two other claims of attorney error: that defense counsel failed to discuss the possibility of a plea resolution and to advocate for a sentence that might have mitigated the immigration consequences of a conviction. We "judge the reasonableness of counsel's challenged conduct on the facts of the particular case," Clarke, supra at 38, quoting Strickland v. Washington, 466 U.S. 668, 690 (1984), and "decline[] to define the constitutional obligations of counsel in more specific terms." Clarke, supra. See Roe v. Flores-Ortega, 528 U.S. 470, 479-480 (2000) (rejecting bright-line rules governing constitutional duties of counsel).

It is undisputed that a criminal defendant has no constitutional right to a plea bargain. Lafler, supra at 1395. Moreover, the prosecutor in the present case never put a formal plea offer on the table. Cf. Frye, supra at 1408-1409. Nevertheless, defense counsel should have informed the defendant that the prosecution was interested in discussing a plea resolution and proceeded to discuss that possibility with the defendant prior to trial. Today, "[p]leas account for nearly 95 [per cent] of all criminal convictions." Padilla, supra at 1485. It is standard practice that "the attorney should explore all alternatives to trial, including the possible resolution of the case through a negotiated plea or admission to sufficient facts." CPCS Manual, supra at c. 4, at 46. In the present case, defense counsel knew that the defendant faced possible deportation and yet failed to tell the defendant that the prosecutor twice approached him about the possibility of plea resolution. Thus, whether a plea was a real option or would have resulted in less severe immigration consequences, the defendant was deprived of the opportunity to make an intelligent decision, based on greater information, about whether to proceed to trial or to request that counsel engage in plea negotiations. See Frye, supra; Mass. R. Prof. C. 1.2, 426 Mass. 1310 (1998) (client's decision to accept plea); Mass. R. Prof. C. 1.4, 426 Mass. 1314 (1998) (client communication). For these reasons, counsel's performance was deficient.

iii. Failure to advocate for lesser sentence. We similarly conclude that counsel's failure to argue for a shorter sentence

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fell measurably below requisite professional standards. [Note 18] In Padilla, supra at 1486, the Supreme Court emphasized that criminal conviction may carry severe immigration consequences for a noncitizen criminal defendant and his family. We likewise appreciate the grave impact sentencing can have on deportability. For a noncitizen defendant, the difference between imposed sentences of three hundred and sixty-four days and of one year following convictions of simple assault or aggravated assault and battery may be the difference between life in this country and deportation. See D. Kesselbrenner & W. Wayne, Defending Immigrants Partnership, Selected Immigration Consequences of Certain Massachusetts Offenses 3, 4 (2006) (Kesselbrenner & Wayne). Moreover, the standard practice for defense counsel in Massachusetts is to consider the immigration consequences that may attach to a sentence and to "zealously advocate the best possible disposition" for the client. [Note 19] CPCS Manual, supra at c. 4, at 22-24. In failing to do so, counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer." Saferian, supra.

b. Prejudice. Having determined that counsel's performance failed to satisfy the first prong of Saferian, supra, we now reach the central reason for the disposition of this appeal: the defendant's failure to show that he was prejudiced by counsel's performance. We conclude that the defendant is not entitled to a new trial because he offers no proof of prejudice. In support of his argument that he was prejudiced by counsel's allegedly deficient performance, the defendant relies on his own affidavit,

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as well as affidavits from his counsel, the codefendant's counsel, and the assistant district attorney. These affidavits merely reflect counsel's purported failures and do not establish that "better work might have accomplished something material for the defense." Commonwealth v. Dargon, 457 Mass. 387, 403 (2010), quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

i. Failure to advise defendant of immigration consequences of conviction. The defendant argues that, had he known the potential immigration consequences of the charges, he would have requested that counsel engage in plea negotiations in an attempt to lessen the immigration consequences. He shows no specific prejudice from counsel's failure to inform him of the consequences of conviction at trial but, instead, relies on the other two areas of ineffectiveness to establish overall prejudice.

ii. Failure to discuss possibility of plea resolution with defendant. To establish prejudice on account of counsel's deficient performance in the plea context, the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial. See Frye, supra at 1409; Lafler, supra at 1385. In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have approved it. See Frye, supra (concluding that defendant had not established prejudice because of "strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final"); Lafler, supra ("defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court . . . , that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed"). [Note 20] Moreover, "[p]roof of prejudice . . . cannot be based on mere conjecture or speculation as to outcome." People

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v. Palmer, 162 Ill. 2d 465, 481 (1994), cert. denied, 514 U.S. 1086 (1995).

The affidavits submitted by the defendant merely state that defense counsel decided against engaging in a plea negotiation or discussing that option with the defendant. The defendant offered no evidence that the prosecutor would have offered him a favorable plea bargain, or that the judge would have accepted one. Evidence that there was no plea negotiation also does not establish that there was any real opportunity to avoid the immigration consequences of a conviction, particularly for an undocumented person. The reality of the defendant's status as an undocumented person living in the United States was that he was deportable per se on account of his unlawful status. [Note 21] The

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defendant was, in fact, removed from this country following his criminal proceedings. Although plausible, we have been shown no evidence that the defendant's criminal activity made him a more likely target for deportation. The defendant provided no proof that his counsel's conduct as opposed to his undocumented status led to his deportation. See, e.g., United States vs. Gutierrez Martinez, U.S. Dist. Ct., Nos. 07-91(5), 10-2553, slip op. at 4 (D. Minn. Dec. 17, 2010) (finding no prejudice because guilty plea had no bearing on defendant's deportability given his undocumented status).

The defendant contends that, had the Commonwealth agreed to a disposition by a plea to simple assault, he would have avoided deportation. This argument also fails for lack of proof. We have been shown no evidence [Note 22] that criminal convictions carry the same deportation consequences for undocumented immigrants as they do for lawful immigrants. [Note 23] The only evidence included in the record is a chart that, even if it were equally as applicable to undocumented immigrants as it is to lawful immigrants, does not advance the defendant's position. The chart indicates that simple assault, like assault and battery causing serious bodily injury, may result in deportation of a noncitizen defendant if the sentence imposed is one year or more. 8 U.S.C. § 1227 (2006 & Supp. II) (aggravated felonies are deportable offenses). [Note 24] See Kesselbrenner & Wayne, supra at 3, 4. Therefore, even if the prosecutor had offered a plea to simple assault --

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and there is no evidence that he might have -- the defendant well may have faced the same immigration consequence as he did following conviction of assault and battery causing serious bodily injury.

iii. Failure to advocate for lesser sentence. We know that a jury convicted the defendant of assault and battery causing serious bodily injury and, therefore, that the judge imposed a sentence based on this conviction. We also know that the defendant was sentenced to two and one-half years in a house of correction, and was required to serve nine months with the balance suspended. [Note 25] We are told by the defendant and his counsel in the form of affidavits that defense counsel did not raise the immigration consequences with the judge for consideration in sentencing. Even taking the affiants at their word, something we are not required to do, we are disturbed by the dearth of proof of counsel's performance at sentencing. The defendant failed to provide a transcript of the sentencing hearing. See Commonwealth v. Watson, 455 Mass. 246, 256 (2009). If a transcript was unavailable, the defendant also failed to avail himself of the opportunity afforded in our Rules of Appellate Procedure to file a statement of the evidence. Mass. R. A. P. 8 (c), as amended, 378 Mass. 932 (1979). Consequently, we do not know what factors the judge considered in fashioning the sentence or whether he would have imposed a lighter sentence had the potential immigration consequences been argued to him. [Note 26]

Moreover, we have been shown no evidence that a lighter sentence might have allowed the undocumented defendant to "fly under the radar" and avoid deportation. Even assuming criminal convictions carry the same deportation consequences for undocumented immigrants as they do for lawful immigrants, we have no evidence that deportation would not have been the

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consequence of the aggravated assault and battery conviction, irrespective of the length of the sentence. See 8 U.S.C. § 1227(a)(2)(A)(i). See also Kesselbrenner & Wayne, supra at 4 (aggravated assault and battery may qualify as "crime involving moral turpitude" rendering defendants deportable regardless of sentence length). [Note 27] Thus, because the undocumented defendant offered no evidence that his fate would have been different if defense counsel had argued for a lighter sentence, we cannot conclude that he was prejudiced.

Judgment affirmed.

Order denying motion for a new trial affirmed.

DUFFLY, J. (concurring in part and dissenting in part). I agree with the court that, considered in light of firmly rooted constitutional protections for noncitizen defendants, the defendant has shown that defense counsel's deficiencies deprived the defendant "of the opportunity to make an intelligent decision, based on greater information, about whether to proceed to trial or to request that counsel engage in plea negotiations." Ante at 127. In these circumstances, prejudice is shown under an established framework that was set forth by the United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010) (Padilla), citing Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (Flores-Ortega). A noncitizen defendant who is given inaccurate advice about the immigration consequences of pleading guilty must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, citing Flores-Ortega, supra.

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This framework also must guide our analysis when counsel's deficiencies consist of failing to "have informed the defendant that the prosecution was interested in discussing a plea resolution" and further failing to "discuss that possibility with the defendant prior to trial." Ante at 127.

The court departs from this framework. By requiring that a noncitizen defendant in these circumstances present proof of a specific plea that the prosecutor would have offered, and show that the result of a plea would have been more favorable than the outcome of the trial, the court has imposed a standard more burdensome than that of the United States Supreme Court and thereby has erected a barrier to vindication of a noncitizen defendant's constitutional right to effective assistance of counsel that no defendant in these circumstances reasonably will be able to overcome.

The defendant's submissions establish both that his counsel was ineffective and that the defendant was prejudiced by counsel's deficiencies; I would therefore have allowed the defendant's motion for a new trial, and respectfully dissent. [Note Duffly-1]

1. Prejudice under Padilla and Flores-Ortega. Under the second prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), in order to prevail on a claim of ineffective assistance, a defendant must show that he was prejudiced by counsel's serious deficiency. In Padilla, the United States Supreme Court discussed the

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prejudice prong of a claim that counsel was deficient in advising his noncitizen client about immigration consequence; the Court cited Flores-Ortega, supra at 486, in support of its holding that "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra at 1485.

The Court's reliance on Flores-Ortega, and to the specific citation in that opinion, is telling. The defendant in Flores-Ortega alleged that his counsel failed to file an appeal without his consent; the Court held that the applicable prejudice requirement may be satisfied if a defendant shows nonfrivolous grounds for appeal, but a defendant need not " 'specify the points he would raise were his right to appeal reinstated' . . . where there are other substantial reasons to believe that he would have appealed." Flores-Ortega, supra at 485-486, quoting Rodriguez v. United States, 395 U.S. 327, 330 (1969). What is required to show prejudice is that "the defendant demonstrate that, but for counsel's deficient conduct, he would have appealed." Flores-Ortega, supra at 486.

A similar framework is described in Commonwealth v. Clarke, 460 Mass. 30, 47- 48 (2011) (Clarke). In Clarke, we concluded that a defendant who received deficient assistance of counsel at the plea bargaining stage may show prejudice by establishing "the presence of 'special circumstances' that support the conclusion that [the defendant] placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Id., citing Hill v. Lockhart, 474 U.S. 52, 60 (1985) (Hill). See State v. Sandoval, 171 Wash. 2d 163, 175, 176 (2011). That prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show 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." Hill, supra at 59. [Note Duffly-2] Where, as here, counsel's deficient representation included his failure to respond to the prosecutor's plea overtures,

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knowing that the defendant faced possible deportation, prejudice is shown if the defendant can demonstrate that, but for counsel's deficient conduct, he would have sought a plea that minimized the risk of the potential consequence of deportation for life. The defendant need not prove that he necessarily would have obtained a better result by plea bargaining than by going to trial.

In its analysis of what it views to be the applicable prejudice standard, the court does not cite Padilla and its reliance on Flores-Ortega but, instead, concludes that, under Missouri v. Frye, 132 S. Ct. 1399 (2012) (Frye), and Lafler v. Cooper, 132 S. Ct. 1376 (2012) (Lafler), "the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial . . . . In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have approved it." Ante at 129. [Note Duffly-3]

Frye and Lafler do not account for Padilla's discussion of the severe consequence of deportation, see Padilla, supra at 1480, 1485, and the fact that a noncitizen defendant's risk assessment includes consideration of the probability that, depending on the criminal charges filed against him, he faces presumptive permanent removal. In this case, as in Padilla, supra, the defendant's primary concern was avoiding that severe consequence, which depended not only on the length of the sentence, but also on the nature of the charges. See Roberts, Proving Prejudice, Post-Padilla, 54 Howard L.J. 693, 697 (2011) ("disclosure about a severe collateral consequence can radically alter a defendant's risk analysis, and might lead some defendants to take a risk at trial where acquittal or conviction on a lesser charge is the only way to potentially avoid that consequence"). Moreover,

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unlike in Frye and Lafler, as a consequence of counsel's deficient performance, no specific plea offer was made here, and consequently none was ever discussed with the noncitizen defendant. [Note Duffly-4]

Thus, Frye and Lafler do not prescribe the appropriate prejudice standard. Rather, as set forth in Padilla, supra at 1485; Flores-Ortega, supra; and Hill, supra, a noncitizen defendant who faces adverse immigration consequences may establish prejudice by showing that it would have been rational under the circumstances to seek a plea, and that he would have accepted a plea imposing substantial penal consequences if that would have avoided the immigration consequence of deportation with no possibility of return. This showing focuses on a defendant's special circumstances, in particular his immigration status and the consequence of removal, and asks a reviewing court to consider what a rational defendant faced with permanent removal, as compared to a lengthy incarceration should he be found guilty, would have done had he been counseled properly.

Because the focus is not on what a prosecutor and trial judge might have done when considering solely those factors related to the charged crime and appropriate sentencing, "no further showing from the defendant of the merits of his underlying claims" is required. Flores-Ortega, supra at 484. Instead, a defendant "must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult him" about whether to engage in plea negotiations, he would have sought a resolution of the charges without trial. Id. Under this framework, applicable here, prejudice may be established by evidence of a defendant's statements to his counsel that he wanted to participate in plea bargaining, or the presence of "other substantial reasons to believe" that a defendant would have wanted to engage in plea discussions. [Note Duffly-5] Id. at 485-486.

2. The defendant has established a reasonable probability of

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prejudice. Even under the court's prejudice rubric, the defendant has shown a "reasonable probability that the result of a plea would have been more favorable than the outcome of the trial," ante at 129, when "more favorable" takes into account the consequence of permanent removal from the United States. "A reasonable probability is a probability sufficient to undermine confidence in the outcome"; it does not mean "more likely than not." Strickland v. Washington, 466 U.S. 668, 693, 694 (1984).

That there is a reasonable probability that the prosecutor would have engaged in plea discussions is established, first, by the prosecutor's affidavit, in which he states that he twice sought to engage in plea discussions with defense counsel, at a time when counsel was aware that the defendant faced immigration consequences, [Note Duffly-6] and, second, by the widely recognized premise noted by the United States Supreme Court that most criminal cases today are resolved by plea bargaining rather than trials. See Lafler, supra at 1388.

Moreover, prosecutors are advised to consider all consequences of a defendant's conviction when deciding whether to enter into a plea agreement. See U.S. Dep't of Justice, United States Attorneys' Manual § 9-27.420(A)(8) (1997); National Dist. Attorneys Ass'n, National Prosecution Standards § 68.1(g), at 191-192 (2d ed. 1991). [Note Duffly-7] Under the American Bar Association Standards for Criminal Justice, Prosecution Function and Defense

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Function, Standard § 3-4.1 (3d ed. 1993), "[t]he prosecutor should have and make known a general policy or willingness to consult with defense counsel concerning disposition of charges by plea." Indeed, this court and the United States Supreme Court have recognized that "the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties" if all sides are aware of the immigration consequences. Clarke, supra at 47 n.18, quoting Padilla, supra at 1486.

Based on the foregoing, had defense counsel participated in plea negotiations, there is a reasonable probability that the prosecutor would have been amenable to a plea to lesser offenses, in lieu of assault and battery causing serious bodily injury, [Note Duffly-8] in order to avoid the consequences to the defendant of deportation without the possibility of return. See, e.g., K. Kanstroom & L.M. Glaser, Immigration, in Crime and Consequence: The Collateral Effects of Criminal Conduct § 8.7.2, at 8-27 (Mass. Cont. Legal Educ. 2d ed. 2009) (recommending plea to disorderly conduct as alternative to assault and battery). [Note Duffly-9] Even if the defendant were to have pleaded guilty to assault and battery causing serious bodily injury, a sentencing recommendation of less than one year would have avoided a conviction for what,

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under applicable immigration law, constitutes an aggravated felony, [Note Duffly-10] and would have ameliorated the consequence of deportation to the defendant.

The record demonstrates that the defendant had a viable defense of defense of another, and that conviction for the offenses charged was far from certain. See, e.g., Padilla, supra at 1486 ("a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction"). A plea agreement to a lesser offense would have saved the Commonwealth the time and expense of a trial. The prosecutor twice indicated his willingness to bargain, the second time after having learned of the defendant's immigration status. There was thus a reasonable probability that the prosecutor would have accepted such a plea. [Note Duffly-11]

Finally, I respectfully disagree with the court's assertion that "[e]vidence that there was no plea negotiation . . . does not establish that there was any real opportunity to avoid the immigration consequences of a conviction, particularly for an undocumented person. The reality of the defendant's status as an undocumented person living in the United States was that he was deportable per se on account of his unlawful status. The defendant was, in fact removed from this country following his criminal proceedings." (Footnote omitted.) Ante at 130. This assertion does not reflect current immigration law and policies, which are reflected in decisional law, including that of the United States Supreme Court. See Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (Arizona). See also Padilla, supra; Clarke, supra; Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 397-398 (2012). Moreover, the defendant's immigration status as an undocumented alien does not mean that he suffered

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no prejudice by being subject to removal for having committed an aggravated felony. [Note Duffly-12]

The defendant's status as an undocumented alien rendered him "inadmissible," 8 U.S.C. § 1182(a)(6)(A)(i) (2006), and consequently subject to removal, 8 U.S.C. § 1227(a)(1)(A) (2006), but the fact that a defendant has the status of an inadmissible alien has consequences quite distinct from those he faces if he is also convicted of an aggravated felony. Under 8 U.S.C. § 1228(c) (2006), any noncitizen convicted of an aggravated felony is conclusively presumed to be deportable. The statute directs the Attorney General to provide for "special removal proceedings" for aliens convicted of aggravated felonies, "in a manner which assures expeditious removal following the end of the alien's incarceration for the underlying sentence." 8 U.S.C. § 1228(a)(1) (2006). Once removed, an alien convicted of an aggravated felony may never return to the United States. 8U.S.C. § 1182(a)(9)(A)(i) (2006).

By contrast, the defendant's status as an inadmissible alien does not mean that he would have been deported on that basis. Even if removal proceedings were commenced because of his inadmissible status, the defendant could have sought discretionary relief under 8 U.S.C. § 1229b(b)(1) (2006 & Supp. VI) on the basis of hardship to his family. [Note Duffly-13] See Commonwealth v. Gordon, supra at 397-398 ("The United States Attorney General generally has the discretion to 'cancel removal,' allowing a noncitizen who is currently a permanent resident to remain in the country, but individuals convicted of an aggravated felony

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are ineligible for cancellation of removal"). If that relief were denied him, the defendant still would have become eligible to apply for a waiver to reenter the United States ten years after his removal. See 8 U.S.C. § 1182(a)(9)(B)(i)(II) (2006). As the defendant's submissions reflect, that option was foreclosed to the defendant upon his conviction of an aggravated felony.

Given the facts of this case, there is also a reasonable probability that no removal proceeding would have been commenced at all were it not for the defendant's criminal conviction. Immigration officials exercise discretion and prioritize the use of limited resources to seek removal of criminal aliens convicted of the most serious offenses.

"A principal feature of the removal system is the broad discretion exercised by immigration officials. . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See [8 U.S.C.] § 1229a(c)(4)[. See also 8 U.S.C.] §§ 1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure)."

Arizona, supra at 2499. The discretion that may be exercised "embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this [n]ation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission."

Id. The United States Supreme Court has also recognized that, in addition to human concerns, there are national concerns that

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dictate the use of discretion not to remove an alien. "Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire [n]ation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. . . . Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad." Id. at 2498. These national concerns are reflected in the policies that prioritize which aliens will be removed. Id. at 2499.

There are many instances where it is "unlikely that the Attorney General would have the alien removed." Id. at 2508, citing Memorandum from John Morton, Director, Immigration and Customs Enforcement (ICE), to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens 4-5 (June 17, 2011) (ICE Memorandum). As reflected in that memorandum, it is the policy of ICE to prioritize the use of its limited resources "to ensure that the aliens it removes represent, as much as reasonably possible, the agency's enforcement priorities, namely the promotion of national safety, border security, public safety, and the integrity of the immigration system." ICE Memorandum, supra at 2. It does so by exercising prosecutorial discretion "not to assert the full scope of the enforcement authority available to the agency in a given case." Id.

In this case, the record reflects that immigration officials waited until after the defendant was convicted of an aggravated felony to commence removal proceedings. [Note Duffly-14] Doing so was not only consistent with stated enforcement policies, but provided for an expedited removal to which inadmissible aliens are not subject. Conviction of an aggravated felony had the consequence of removal without the possibility of cancellation or return, in essence a banishment for life from the country that had been the

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defendant's home since childhood. Had the defendant been afforded the opportunity, he could have negotiated a plea that, at the very least, would not have had the consequence of removal without any opportunity to return. [Note Duffly-15] As the defendant states in his affidavit, he had lived in the United States his entire adult life, and has family members in this country who depend on him; for him, the opportunities to petition for cancellation of removal or a waiver to return would have been "serious benefit[s]." See Commonwealth v. Martinez, 81 Mass. App. Ct. 595, 596 n.2 (2012).

Even under the framework employed by the court, and unquestionably under the prejudice standard enunciated in Padilla, supra at 1485; Flores-Ortega, supra at 486; and Hill, supra at 59, the denial to the defendant of the opportunity to engage in a plea process, which had a reasonable probability of resulting in an agreement that would have preserved his opportunity to return to the United States -- an opportunity more important to this defendant than the length of incarceration -- requires that he now be afforded that opportunity.

Because the noncitizen defendant's right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution was denied "at the only stage when legal aid and advice would help him," Frye, supra at 1408, quoting Massiah v. United States, 377 U.S. 201, 204 (1964), and he suffered prejudice as a result, the defendant's conviction should be vacated and his motion for a new trial allowed. The defendant, who placed particular emphasis on his immigration status, would then be in a position to participate in the plea phase, informed by the advice of counsel as to potential immigration consequences, and thus able intelligently to consider whether to accept any offered plea or proceed to a new trial. [Note Duffly-16]