Criminal – Immigration consequences – Effective assistance

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Where a defendant moved to vacate guilty pleas he entered in 2005, an order denying that motion should be affirmed based on the defendant’s failure to show a reasonable probability of a different result had he been properly informed of the immigration consequences of his guilty pleas.

“This case is before us on appeal from the denial of the defendant’s second motion for a new trial in which he sought to vacate guilty pleas he entered in 2005, on the ground that he was deprived of his right under the Sixth Amendment to the United States Constitution to the effective assistance of counsel as that right recently has been explicated in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In Padilla, the United States Supreme Court held that defense counsel’s failure to advise a client that a consequence of his guilty plea likely would be deportation constituted ineffective assistance of counsel. … The defendant asserts that he was similarly ill served by his counsel and asks us to vacate his guilty pleas. We transferred the case to this court on our own motion.

“To decide this case, we must determine whether Padilla applies retroactively to the defendant’s collateral challenge to his convictions, and, if so, whether he has demonstrated that he was prejudiced by counsel’s shortcomings. For the reasons that follow, we conclude that Padilla is to be applied retroactively on collateral review of guilty pleas obtained after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (eff. April 1, 1997). We also conclude that the defendant has made an insufficient showing that had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different. Therefore, we affirm the denial of his motion for a new trial.”

Commonwealth v. Clarke (Lawyers Weekly No. 10-089-11) (31 pages) (Cordy, J.) (SJC) Motion for a new trial heard by Miller, J., in Boston Municipal Court. Thomas M. Glynn on appeal for the defendant; Anna E. Kalluri for the commonwealth; Wendy S. Wayne, Jeanette Kain and Jennifer Klein, for Committee for Public Counsel Services, amicus curiae, submitted a brief (Docket No. SJC-10888) (June 17, 2011).