Criminal – Pleas – Immigration advice

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Where a defendant moved to withdraw his guilty pleas, claiming that his counsel did not properly advise him of the immigration consequences, a judge’s decision to deny that motion should be reversed because the defendant met his burden of establishing that a reasonable person in his circumstances would have gone to trial if given constitutionally effective advice.

“The defendant appeals from a 2019 order of the District Court denying his motion to withdraw his 1996 guilty pleas involving charges of possession with intent to distribute controlled substances, among others. The defendant’s motion was based on ineffective assistance of counsel, specifically counsel’s failure to properly advise him of the immigration consequences of his pleas, pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The motion judge found that counsel’s performance was ‘constitutionally deficient,’ but nonetheless denied the motion, determining that the defendant had failed to establish the requisite prejudice. We reverse. …

“There is no dispute on appeal that the motion judge correctly determined that the defendant met his burden to show that his counsel’s performance was constitutionally deficient in that he failed to ‘provide the defendant with accurate advice concerning the deportation consequences of pleading guilty.’ …

“The parties agree that the sole issue on appeal is whether the motion judge erred in his determination that the defendant was not prejudiced. …

“Here, the motion judge reviewed the charges but made no finding on the defendant’s presentation of available defenses and alternative pleas or the potential risks of going to trial versus accepting a plea. He bypassed consideration of all of the special circumstances presented, moving directly to a conclusion that the defendant in fact placed particular emphasis on immigration consequences in deciding whether to plead guilty.6 Nonetheless, in considering the totality of the circumstances, the judge noted the singular fact that the defendant was facing six charges at the time of the plea and concluded that the defendant had failed to prove that ‘a decision to reject every plea bargain would have been rational under the circumstances.’ …

“In a post-Padilla ineffective assistance of counsel analysis, the question is not whether proficient representation would have resulted in a more favorable disposition. Rather, the question is whether a defendant, advised by counsel that a guilty plea would result in certain deportation, would have taken their chances at trial. …

“Additionally, the motion judge appeared to give no consideration to the defendant’s special circumstances, despite the fact that the prejudice determination ‘rests on the totality of the circumstances, in which special circumstances regarding immigration consequences should be given substantial weight.’ … Those circumstances, which the motion judge found to exist, included that the defendant came to the United States at the age of two, that he was a lawful permanent resident, that he had never returned to his country of origin and did not speak its language, that he was disabled and relied on his family in the United States for support, and that he had a girlfriend who was pregnant with his child. Additionally, the defendant placed paramount importance on deportation when he decided to plead guilty, as evidenced by his refusal to plead guilty to the only charge that he believed would make him deportable and his willingness to plead to anything as long as it did not result in deportation.

“Given the facts properly found by the motion judge, essentially crediting all of the allegations in the defendant’s affidavit, we conclude that the defendant met his burden of establishing that a reasonable person in the defendant’s circumstances would have gone to trial if given constitutionally effective advice. …

“Accordingly, the order dated October 28, 2019, denying the defendant’s motion to withdraw the guilty pleas is vacated, and an order shall enter allowing the motion. The judgments are vacated, and the findings are set aside.”

Commonwealth v. Dias (Lawyers Weekly No. 81-056-21) (12 pages) (Docket No. 19-P-1677) (April 22, 2021).

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