Criminal – Plea withdrawal – Immigration consequences

Listen to this article

Where a defendant moved to withdraw a plea to drug charges, an order denying the motion must be vacated because of a material issue regarding the advice of counsel regarding the immigration consequences of the plea.

“We consider the defendant’s appeal from the denial, without a hearing, of her motion for a new trial. In that motion, the defendant sought to withdraw a plea to drug charges, entered eight years earlier, claiming that her counsel rendered constitutionally ineffective assistance by advising her that she would not suffer adverse immigration consequences from an admission to sufficient facts coupled with a continuance without a finding for a period of less than one year. The motion judge, who was not the plea judge, considered the defendant’s motion under the principles announced in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Based upon affidavits submitted by the defendant and her counsel, which the judge apparently credited, the judge concluded that the defendant had carried her burden of showing that counsel’s performance was constitutionally deficient; however, he also concluded that the defendant had not met her burden of showing prejudice.

“Unlike the motion judge, we have the benefit of the recent Supreme Judicial Court decision in Commonwealth v. Clarke, 460 Mass. 30 (2011). That case confirmed the correctness of the judge’s retroactive application of Padilla to the defendant’s case and the determination that, under professional norms existing at the time of her plea, counsel’s misleading advice was ‘behavior falling measurably below that which might be expected from an ordinary fallible lawyer,’ thus satisfying the first prong of the [Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)] test. … However, Clarke (supra at 47-48) also shed further light on the analysis to be undertaken of the second, prejudice prong of Saferian. … Viewed in that light, we conclude that the defendant’s showing raises a substantial issue worthy of an evidentiary hearing.”

Commonwealth v. Lugo (Lawyers Weekly No. 81-988-11) (4 pages) (Appeals Court – Unpublished) (No. 2010-P-1733) (Aug. 23, 2011).