Criminal – Plea withdrawal – Immigration consequences

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Where a defendant moved to withdraw his guilty plea, arguing that counsel failed to warn him about the specific immigration consequences of his plea, that motion should have been allowed because (1) plea counsel’s advice to the defendant fell below that of an ordinary, fallible lawyer and (2) the defendant was prejudiced by plea counsel’s errors.

“In January 2020, the defendant, Escobar Gonzalez, pleaded guilty to one count of possession of a class B substance with intent to distribute under G.L.c. 94C, §32A. He now appeals from the denial of his subsequent motion to withdraw his guilty plea, arguing, inter alia, that he received ineffective assistance of counsel because trial counsel failed to warn him about the specific immigration consequences of his plea. We reverse. …

“… To establish that he is entitled to a new trial, the defendant is required to show that, by not advising him of the immigration consequences he would face if convicted of possession with the intent to distribute a class B substance, (1) his plea counsel’s conduct fell below the standard of an ordinary, fallible lawyer, and (2) that shortcoming prejudiced him in some way. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). …

“We conclude that plea counsel’s advice to the defendant fell below that of an ordinary, fallible lawyer. As discussed supra, plea counsel provided an affidavit averring that it was his practice at the time to tell his clients that ‘convictions can have consequences for immigration purposes.’ This advice was insufficient and failed to satisfy the Saferian standard because the charge to which the defendant pleaded guilty was almost certain to result in his deportation under 8 U.S.C. §1182(a)(2)(A)(i)(II), (C). … Because deportation was virtually certain to result as the result of his guilty plea, plea counsel was required to explicitly inform the defendant of that certainty. … It is undisputed that plea counsel failed to do that in this case. …

“… The defendant stated in his affidavit that he would not have pleaded guilty but for his plea counsel’s poor advice. Having done so, he has satisfied the threshold requirement necessary to show a reasonable probability that he would not have pleaded guilty. …

“Furthermore, the decision to reject the plea bargain would have been rational under the circumstances for two reasons. First, the defendant had an ‘available, substantial ground of defence.’ … Although the defendant was found with thirteen individually wrapped packages of a substance that was suspected to be crack cocaine, mere possession of individually wrapped packages alone does not establish probable cause of an intent to distribute the narcotics. … Without more, the Commonwealth’s chance of obtaining a conviction was not as certain as plea counsel mistakenly believed.

“Second, the defendant had been working with an immigration attorney to obtain [Special Immigration Juvenile (SIJ)] status and remain lawfully in the United States. In his affidavit in support of his motion, he has stated that he has fewer job prospects in Guatemala and fears for his life if he is forced to return there, due to gang violence. Those representations ‘support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty.’ … Taken together, these assertions are sufficient to support a reasonable probability that a reasonable person in the defendant’s position would not have pleaded guilty but for plea counsel’s errors. …

“Order denying motion to withdraw guilty plea reversed.”

Commonwealth v. Escobar Gonzalez (Lawyers Weekly No. 81-134-22) (10 pages) (Docket No. 21-P-992) (Nov. 17, 2022).

Click here to read the full text of the opinion.