Criminal – Immigration consequences – Plea

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Where a defendant has moved for a new trial based on his trial counsel’s failure to advise him of the immigration consequences of an assault and battery conviction, to explore a plea resolution and to advocate for a sentence that might have mitigated such immigration consequences, the defendant has shown no prejudice and thus an order denying the motion must be affirmed.

“… 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.’ Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (Saferian). …

“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. …

“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. …

“… [D]efense 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.’ … 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. …

“We similarly conclude that counsel’s failure to argue for a shorter sentence fell measurably below requisite professional standards. …

“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. …”

Dissenting-in-part opinion

Duffly, J. “… 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. …

“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,’ … 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.”

Commonwealth v. Marinho (Lawyers Weekly No. 10-005-13) (47 pages) (Spina, J.) (Duffly, J., concurring in part and dissenting in part) (SJC) Case tried before Merrick, J., and a motion for a new trial heard by him. Amy M. Belger on appeal for the defendant; Elizabeth Sweeney for the commonwealth; Jennifer Klein, Wendy Wayne and Jeanette Kain, for Committee for Public Counsel Services, amicus curiae, submitted a brief.