Criminal – Plea – Immigration consequences

Where (1) a defendant who pleaded guilty to possession of a controlled substance with intent to distribute filed a motion to withdraw his plea on the basis that plea counsel failed to inform him that his plea rendered his deportation virtually mandatory and (2) that motion was denied without an evidentiary hearing primarily on the basis that plea counsel’s affidavit averring that he did not tell the defendant that he would be automatically deported was not credible because it was inconsistent with counsel’s representation during the plea colloquy that he had discussed the immigration consequences of the plea with his client, that was error, as counsel’s affidavit was not inherently inconsistent with his representations during the colloquy.

“In 2018, the defendant, Jorge Santana, a noncitizen lawfully residing in the United States, pleaded guilty to possession of a controlled substance with intent to distribute, subjecting him to automatic deportation from the United States. This case presents the question whether the defendant has made an adequate showing to warrant an evidentiary hearing on his motion to withdraw his plea on the basis that plea counsel failed to inform him that his plea rendered his deportation virtually mandatory in violation of his constitutional right to the effective assistance of counsel. …

“The motion judge, who was also the plea judge, denied the motion without an evidentiary hearing primarily on the basis that plea counsel’s affidavit averring that he did not tell the defendant that he would be automatically deported was not credible because it was inconsistent with counsel’s representation during the plea colloquy that he had discussed the immigration consequences of the plea with his client. Contrary to the judge’s determination, however, counsel’s affidavit was not inherently inconsistent with his representations during the colloquy and any inconsistency could not be resolved on the papers alone. Accordingly, we vacate the denial of the motion to withdraw the defendant’s guilty plea and remand for further proceedings consistent with this opinion. …

“While we defer to the motion judge’s findings especially where, as here, he was the plea judge, those findings do not support the judge’s decision to discredit counsel’s affidavit altogether without an evidentiary hearing; indeed, it appears the judge did not recognize the ambiguity and concluded instead that counsel provided accurate immigration advice based solely on counsel’s affirmative answer during the colloquy to the judge’s question whether, if there were any immigration consequences to the plea, counsel had provided advice pursuant to [Commonwealth v. Clarke, 460 Mass. 30 (2011)]. …

“We vacate the order denying the defendant’s motion to withdraw his guilty plea and remand for further proceedings consistent with this opinion.”

Dissenting justice’s comments

Georges, J., with whom Gaziano, J., joins. “A defendant is not entitled to an evidentiary hearing merely because affidavits are filed; the supporting materials must present specific, credible facts that cast doubt on a substantial issue. … Here, the judge exercised precisely the kind of reasoned, record-based discretion to which appellate courts owe deference. He presided over the plea colloquy, evaluated the later affidavits in light of his contemporaneous notes and recollection, and articulated specific reasons for finding them unpersuasive. Because the defendant failed to raise a substantial issue, denying the motion to withdraw his guilty plea without an evidentiary hearing under these circumstances accords with long-standing precedent and falls well within the judge’s discretion.

“For these reasons, I respectfully dissent.”

Commonwealth v. Santana (Lawyers Weekly No. 10-011-26) (35 pages) (Wendlandt, J.) (Georges, J., with whom Gaziano, J., joins, dissenting) A motion to withdraw a guilty plea was heard by Allen G. Swan, J., in District Court. Casey L. Riley (Danya Fullerton also present) for the defendant on appeal; Jennifer D. Cohen for the commonwealth; Jennifer Klein & Caitlin Perry, Edward Crane and Maria Durant submitted a brief for Committee for Public Counsel Services and another, amici curiae (Docket No. SJC-13720) (Feb. 4, 2026).

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