COMMONWEALTH vs. ELAN DEJESUS

DUFFLY, J. We are asked in this case to consider whether defense counsel's advice to his noncitizen client that if the client pleaded guilty to drug possession charges he would be

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"eligible for deportation" was constitutionally deficient. Because, under applicable immigration law, the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or "presumptively mandatory," see Padilla v. Kentucky, 559 U.S. 356, 368-369 (2010) (Padilla), citing 8 U.S.C. § 1227(a)(2)(B)(I) (2006), we conclude that counsel's advice was constitutionally deficient and that the defendant suffered prejudice as a result. Accordingly, we affirm the decision of the Superior Court judge allowing the defendant to withdraw his guilty plea.

Background. The defendant pleaded guilty to possession with intent to distribute a class B substance (cocaine), G. L. c. 94C, § 32A (a), and received a sentence of probation. After a subsequent arrest for driving without a license, the defendant was taken into custody by immigration authorities; he then filed a motion for a new trial in the Superior Court seeking to withdraw his guilty plea. A Superior Court judge, who also had been the plea judge, conducted an evidentiary hearing on the defendant's motion, at which the defendant and his plea counsel both testified. The judge thereafter made detailed findings and issued a comprehensive memorandum of decision and order allowing the motion. He determined that, under applicable immigration law, it is clear that the conviction of a noncitizen of possession with intent to distribute cocaine makes deportation or removal from the United States automatic or "presumptively mandatory," see Padilla, supra, and therefore that counsel's advice was incomplete. The judge concluded that the defendant suffered prejudice as a result of counsel's constitutionally deficient advice, and allowed the defendant's motion to withdraw his guilty plea. The Commonwealth appealed, and we transferred the case to this court on our own motion. [Note 1]

We summarize the judge's findings, which he noted as being based on testimony he had determined to be credible, supplementing those findings with certain details from the record where they are consistent with the judge's findings and determinations of credibility.

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The defendant was born in the Dominican Republic in 1983. He moved to the United States with his family when he was eleven years old and thereafter lived in Boston. All of the defendant's family members reside in the United States, including a daughter and, as of the date of the hearing, his pregnant wife. Although he is not a United States citizen, the defendant is now a lawful permanent resident of the United States. The defendant attended Boston public schools and graduated from Boston English High School with the aid of an individualized special needs education plan. After graduation, the defendant maintained steady employment with a parcel shipping company, where, at the time of his arrest, he had been employed for eight years loading boxes onto trucks. The arrest in this case was the first time that the defendant had been arrested.

In December, 2008, acting on a tip, Boston police officers approached a blue van and questioned two of its occupants; the defendant was the driver of the van. The passenger had an outstanding warrant and was arrested. The defendant agreed to accompany the officers to the police station, where police searched him, reaching into his groin area and recovering a small bag containing white powder. The defendant was then placed under arrest and ultimately indicted for trafficking in cocaine, twenty-eight grams or more, an offense that at that time carried a five-year mandatory minimum sentence of incarceration in State prison.

Defense counsel was aware that the defendant was not a United States citizen, and spoke with the defendant several times about deportation as a possible consequence of a conviction; counsel told the defendant that any guilty plea would make him "eligible for deportation," and that if the defendant agreed to the guilty plea he "face[d] being deported and being denied reentry into the United States." [Note 2] Defense counsel was unavailable on the day of the plea hearing, June 1, 2010, and the defendant appeared in court with an attorney who worked in

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defense counsel's office; substitute counsel did not discuss with the defendant the immigration consequences of his plea. [Note 3] The defendant pleaded guilty to the lesser included offense of possession of cocaine with intent to distribute and was sentenced to two and one-half years' probation.

In 2011, while on probation, the defendant was arrested for driving with a suspended license. Following his arrest, the defendant was taken into the custody of Federal immigration authorities, placed in removal proceedings, and ordered to be removed from the United States. He was awaiting removal in February, 2012, when he filed the motion for a new trial seeking to withdraw his guilty plea. [Note 4] The memorandum in support of that motion states that the defendant "has been living in the United States since he was a child and all his family and friends live here. Remaining in the United States is more important to him than any jail sentence he could have received under [the] charges." In his affidavit in support of the motion, the defendant avers, among other things:

"Neither [my defense counsel] nor substitute counsel told me that I would be subject to mandatory deportation if I entered a guilty plea to possession with intent to distribute a controlled substance, no matter what sentence I received. . . . If I had known that deportation would be mandatory, even when all I got was probation, I would have exercised my right to have the [previously filed] motion [to suppress] heard and then go to trial."

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Following an evidentiary hearing, the judge determined that, under Padilla, supra at 369, counsel's advice was incomplete and was constitutionally deficient in light of prevailing professional norms. In addition, the judge determined that the defendant had met his burden to establish 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." Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) (Clarke), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). The judge allowed the defendant's motion and vacated the defendant's plea of guilty to the offense of possession of cocaine with intent to distribute. The judge also reinstated that portion of the indictment charging the defendant with trafficking in cocaine, which had been dismissed with the Commonwealth's agreement under the terms of the plea arrangement.

Discussion. 1. Standard of review. A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Furr, 454 Mass. 101, 106 (2009). "Under Mass. R. Crim. P. 30 (b), a judge may grant a motion for a new trial any 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). We review the allowance of a motion to withdraw a guilty plea to determine whether the judge committed an abuse of that discretion or a significant error of law. Id. We accept the judge's findings of fact if supported by the evidence, because the judge who heard the witnesses testify is the "final arbiter on matters of credibility." Id., quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

2. Adequacy of advice. In determining whether counsel has provided constitutionally ineffective assistance, "[w]e must determine 'whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' " Clarke, supra at 45, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Satisfying

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this standard necessarily satisfies the standard established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Clarke, supra. The Commonwealth argues that Padilla, supra at 368, 374, supports its claim that the defendant received correct advice when he was told that he was "eligible for deportation," and that if he pleaded guilty he would "face being deported and being denied reentry into the United States," noting that "eligible for deportation" was the language employed by the United States Supreme Court to describe the information that must be provided. The Court in Padilla used various terms to describe a defense attorney's obligation to give correct advice where the consequence of a guilty plea might make a defendant subject to adverse immigration consequences, but did not formulate the precise language that would satisfy that obligation, and understood that the content of the advice would depend on the circumstances. We conclude that advising a defendant faced with circumstances similar to those in this case that he is "eligible for deportation" does not adequately inform such a defendant that, if he were to plead guilty (e.g., as here, to a charge of possession with intent to distribute cocaine), then, upon apprehension, his removal from the United States would be presumptively mandatory under Federal law.

The decision in Padilla, supra at 360, begins its discussion of the issue with this statement:

"We granted certiorari . . . to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation."

Padilla, a lawful permanent resident of the United States for more than forty years, had pleaded guilty to transporting a large amount of marijuana in his tractor trailer, "charges that made his deportation virtually mandatory." Id. at 359. According to Padilla's assertions, assumed to be true for purposes of his post-conviction appeal, his trial counsel had "not only failed to

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advise him of this consequence prior to his entering the plea, but also told him that he 'did not have to worry about immigration status since he had been in the country so long.' " Id. The Court's decision described the dramatic changes that had taken place in "[t]he landscape of [F]ederal immigration law . . . over the last 90 years." Padilla, supra at 360. Earlier versions of applicable Federal law "included a critically important procedural protection to minimize the risk of unjust deportation. . . . Thus, from 1917 forward, there was no such creature as an automatically deportable offense." Id. at 361-362. After the 1996 effective date of amendments to the 1952 Immigration and Nationality Act, however, "if a noncitizen has committed a removable offense . . . , his removal is practically inevitable," subject to limited exceptions. Id. at 363-364. In light of this historical backdrop, the Court concluded that the "weight of prevailing professional norms support[ed] the view that counsel must advise her client regarding the risk of deportation." Id. at 367. See Clarke, supra at 41. In Padilla's case, "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence of Padilla's conviction." Padilla, supra at 368, citing 8 U.S.C. § 1227(a)(2)(B)(I). The statute "specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses." Padilla, supra. Although recognizing that there undoubtedly will be situations in which the deportation consequences of a particular plea are unclear or uncertain, and counsel's duty more limited, the Court stated that "when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." Id. at 369. In our decisions concerning counsel's duty to advise of immigration consequences since Padilla was issued, we have reiterated its holding. See Commonwealth v. Sylvain, 466 Mass. 422, 436, 438 (2013); Commonwealth v. Marinho, 464 Mass. 115, 125-126 & nn.12-13 (2013); Clarke, supra at 42.

Applying the standard articulated in those decisions to the circumstances here, we conclude that the terms of the relevant immigration statutes are succinct, clear, and explicit about the removal consequences for a noncitizen defendant convicted of

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possession with intent to distribute cocaine. Pursuant to Federal statute, an alien "shall, upon the order of the Attorney General [of the United States], be removed" if he or she is convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), and the defendant's conviction of "possession with intent to distribute a class B controlled substance, G. L. c. 94C, § 32A, . . . [is an] aggravated felon[y]." Clarke, supra at 32 n.2. Under applicable Federal law, the defendant would have virtually no avenue for relief from deportation once convicted of that crime. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1682 (2013) (Federal statute "prohibits the Attorney General [of the United States] from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case"). Counsel therefore 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. [Note 5]

Telling the defendant that he was "eligible for deportation" and that he would "face deportation" was not adequate advice because it did not convey what is clearly stated in Federal law. Advice that one is "eligible" for deportation conveys that the law requires additional conditions to be met before an individual could be removed and allows for the exercise of discretion in determining whether those conditions are met. [Note 6] Such advice

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does not convey what was the case here: that all of the conditions necessary for removal would be met by the defendant's guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities. [Note 7]

Because counsel failed to "provide the defendant with accurate advice concerning the deportation consequences of pleading guilty," Commonwealth v. Sylvain, supra at 438, given that the information did not convey that deportation would be the legal consequence of a conviction, counsel's representation fell below an objective standard of reasonableness, thus satisfying both the Federal and State performance prong. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also United States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (defendant convicted of aggravated felony "entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty"); State v. Sandoval, 171 Wash. 2d 163, 167, 173-174 (2011) (advice to defendant convicted of aggravated felony that he "would not be deported immediately," and would have time to retain immigration counsel, deficient because it suggested deportation was "remote possibility").

3. Prejudice to the defendant. We next consider whether counsel's deficient performance prejudiced the defendant. [Note 8] In Clarke, we stated that where a defendant claims that counsel's

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ineffective assistance induced him to plead guilty, the defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 46-47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant must provide an affidavit to that effect, and in addition, "he 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, supra at 372. A showing that a decision to reject the plea bargain would have been rational in the defendant's circumstances may be accomplished in one of three ways. The burden is on the defendant to show

"that (1) he had an 'available, substantial ground of defence,' Commonwealth v. Saferian, supra at 96, 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. Hill [v. Lockhart, 474 U.S. at 60]."

Clarke, supra at 46-47.

Based on the judge's findings, the defendant proffered two independently sufficient grounds that established prejudice. First, the judge's findings establish that, by waiving consideration of his motion to suppress, the defendant waived "a substantial ground of defence." In this connection, the judge found that conviction after trial was not a "near certainty" because the defendant's motion "had significant support in the evidence and law."

Second, the judge's findings establish the presence of "special circumstances" showing that the defendant "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." The judge found that the defendant was "very concerned" not only about the risk of a five-year mandatory sentence of incarceration, but also about

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the risk of deportation, and that the defendant "had a lot to lose if he were to be deported" because he had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area. We reject the Commonwealth's argument, made to the motion judge, that the defendant was not prejudiced notwithstanding these circumstances because he "got a very good deal": he received straight probation when he was facing a mandatory minimum sentence of five years of incarceration. If an assessment of the apparent benefits of a plea offer is made, it must be conducted in light of the recognition that a noncitizen defendant confronts a very different calculus than that confronting a United States citizen. For a noncitizen defendant, preserving his "right to remain in the United States may be more important to [him] than any jail sentence." Padilla, supra at 368. Thus, a determination whether it would be rational for a defendant to reject a plea offer "must take into account the particular circumstances informing the defendant's desire to remain in the United States." People v. Picca, 97 A.D.3d 170, 183-184 (N.Y. 2012). See United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013) (rational for noncitizen defendant to go to trial to retain chance of avoiding automatic deportation, even where trial involved serious risk of lengthy incarceration and deportation); Denisyuk v. State, 422 Md. 462, 488 (2011) (same); State v. Sandoval, 171 Wash. 2d at 175-176 (same).

Because the record provides a sufficient basis to support the judge's determination that the defendant met his burden to establish "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. at 59, there was no abuse of discretion in the allowance of the defendant's motion for a new trial seeking to withdraw his guilty plea.

Order allowing motion for new trial affirmed.

CORDY, J. (dissenting). I disagree with the court that the

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behavior of the defendant's attorney with regard to his obligation to apprise his client of the potential immigration consequences of pleading guilty to a reduced charge of possession with intent to distribute cocaine fell "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89,96 (1974). If anything, under the circumstances, the attorney's attention to this matter exemplified an earnest and reasonable attempt at alerting a client intent on avoiding a jail sentence (on the five-year mandatory minimum trafficking charge) that there would likely be deportation consequences of which the defendant needed to be aware before committing to the plea bargain offered by the Commonwealth. The testimony of plea counsel, Attorney Peter T. Marano, at the motion hearing, which the judge found to be "truthful and accurate on all the material points," bears this out.

Shortly before Attorney Marano began representing the defendant, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010), in which it "underscore[d] how critical it is for counsel to inform [his] noncitizen client that he faces the risk of deportation" and, consequently, held that the Sixth Amendment to the United States Constitution requires that "counsel must inform [his] client whether his plea carries [such] a risk." Id. at 373-374. Because Marano was aware that his client was not a citizen, he familiarized himself with the Padilla decision and during the course of the representation also consulted with an immigration attorney. Marano then "spoke with the defendant several times about deportation as a possible consequence of a conviction," and told him that "any guilty plea would make him 'eligible for deportation'" and that "he would be subject to the ramifications of deportation." Marano also told the defendant that he was not an immigration lawyer, and was not fully familiar with immigration law. Consequently, he advised the defendant to seek the advice of such a lawyer so that he could better evaluate the risk of deportation. He provided the defendant with the name and telephone number of the immigration lawyer with whom he had also consulted on that subject. When the date for a hearing on the defendant's motion to suppress the evidence approached, Marano learned that the

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Commonwealth would accept a plea to a reduced charge of possession with intent to distribute, thus eliminating the risk of a five-year mandatory minimum sentence on conviction. Marano and the assistant district attorney understood that the plea offer would not be available after the hearing on the motion to suppress. Marano explained this to the defendant, and testified that he advised him, "[I]f you accept a plea, you face being deported from the country, denied admittance or naturalization, denied reentry, denied citizenship or naturalization." [Note Dissent-1] Marano then requested at least one continuance of the hearing on his motion to suppress so that the defendant could fully consider the guilty plea offer and Marano' s advice regarding the deportation consequences of pleading guilty, and could seek further advice from the immigration lawyer.

Before the next scheduled date for the motion to suppress, the defendant advised Marano that he wanted to accept the guilty plea offer. Marano testified that the defendant understood that he would be "eligible for deportation," but "his foremost concern was not going to prison." At his guilty plea hearing, the judge further informed the defendant of the possibility of immigration consequences resulting from his guilty plea, as required by G. L. c. 278, § 29D. After signing a waiver of rights form, the defendant pleaded guilty and was sentenced to a term of probation. Deportation proceedings were not commenced. The following year, the defendant was arrested on a new offense, the office of the United States Immigration and Customs Enforcement was notified, and deportation proceedings were initiated. I do not understand the ruling of Padilla v. Kentucky, or the subsequent rulings of this court on the subject to prescribe a certain form of words that an attorney must use in order to fall within the range of "reasonable professional assistance" required of counsel by the Sixth Amendment. Strickland v. Washington,

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466 U.S. 668, 688-689 (1984). There was no inaccuracy or soft pedaling of advice here. Compare State v. Sandoval, 171 Wash. 2d 163, 173 (2011) ("required advice about immigration consequences would be a useless formality if, in the next breath, counsel could give the noncitizen defendant the impression that he or she should disregard what counsel had just said about the risk of immigration consequences"). To require more of criminal defense attorneys in the circumstances faced by Marano approaches very close to requiring them to be immigration attorneys. That is not the standard. If the court wishes to mandate specific safe harbor words such as "practically inevitable" or "presumptively mandatory," it is free to do so, but it should not reflect that requirement back on those who have given reasonable advice, sufficient to alert their clients to the real prospect of immigration consequences as they balanced those future possible consequences against their present liberty.

I would add that deportation has not been demonstrated to be inevitable in the aftermath of every plea of guilty that creates either "eligibility" or even a "presumption" of deportation. That deportation was ultimately sought after the defendant's subsequent arrest is hardly dispositive, and leaves unanswered whether such action would ever have been brought had he not been ensnared in another crime. As the court admits by its own choice of words, deportation is not "mandatory" or "inevitable." Indeed, the deportation proceeding is contingent on there being an "order" of removal from the Attorney General of the United States, and there still remain discretionary avenues to avoid deportation, albeit limited ones. [Note Dissent-2]

Because I view the efforts of Attorney Marano with regard to apprising his client of the immigration consequences he faced by pleading guilty to be professionally reasonable, I would

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conclude that he was not ineffective, and would reverse the grant of a new trial. [Note Dissent-3]