Commonwealth v. Barros

233 N.E.3d 1083

COMMONWEALTH

v.Nelson BARROS.

SJC-13506

Supreme Judicial Court of Massachusetts, Bristol.

Argued February 7, 2024

Decided June 3, 2024

Constitutional Law, Plea, Assistance of counsel, Retroactivity of judicial holding. Practice, Criminal, Plea, Assistance of counsel, Waiver, Retroactivity of judicial holding. Waiver. Alien. Retroactivity of Judicial Holding.

Complaint received and sworn to in the Fall River Division of the District Court Department on December 15, 2017.

A motion to withdraw an admission to sufficient facts, filed on March 9, 2023, was considered by Kevin J. Finnerty, J.

The Supreme Judicial Court granted an application for direct appellate review.

Edward Crane for the defendant.

Alysia V. Sanchez, Assistant District Attorney, for the Commonwealth.

Rebecca Kiley & Wendy S. Wayne, Committee for Public Counsel Services, Hannah L. Kilson, & Chauncey Wood, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, JJ.

DEWAR, J.

[1, 2] Under art. 12 of the Massachusetts Declaration of Rights, a criminal defendant’s waiver of the right to counsel must be made knowingly and intelligently, with "adequate[ ] aware[ness] of [(1)] the seriousness of the charges, [(2)] the magnitude of [the] undertaking, [(3)] the availability of advisory counsel, and [(4)] the disadvantages of self-representation." Commonwealth v. Martin, 425 Mass. 718, 720, 683 N.E.2d 280 (1997), quoting Commonwealth v. Jackson, 376 Mass. 790, 795, 383 N.E.2d 835 (1978). Today we confirm that, whenever a defendant elects to waive the right to counsel -- whether at alignment or at a plea hearing -- a trial court judge bears the "serious and weighty responsibility" of ascertaining whether that waiver is made knowingly and intelligently. Commonwealth v. Cavanaugh, 371 Mass. 46, 53, 353 N.E.2d 732 (1976), quoting Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). As we have long held, the inquiry required will depend on the individual defendant and the circumstances of the case, but the judge should ascertain that each element of the standard for a knowing and intelligent waiver is met. Because it bears on our assessment of the waiver of counsel in this case, today we also recognize that the significant disadvantages of self-representation pertinent to the fourth element of this standard include, for a noncitizen defendant, forgoing counsel's advice about the immigration consequences of a disposition. A trial court judge therefore should ensure a defendant seeking to waive counsel is aware of this disadvantage of proceeding without counsel.

Applying these principles as well as the applicable standard of review, we affirm the judgment below on alternate grounds. We conclude that the defendant’s waiver of counsel was invalid, in violation of his art. 12 right to counsel. While the judge alerted the defendant to the existence of the right to counsel and confirmed that the defendant wished to represent himself, the judge conducted no further inquiry to determine whether the defendant’s waiver of counsel was made knowingly and intelligently at either his arraignment or his plea hearing, and nothing else in the record before us establishes that the defendant’s waiver was sufficiently informed to comport with art. 12. The defendant did not, however, challenge this waiver of counsel in his first motion to withdraw his admission to sufficient facts, on which he was represented by counsel. The defendant therefore must establish a substantial risk of a miscarriage of justice in order to prevail on appeal from the trial court’s denial of his second motion to withdraw his admission. Applying that standard to the record before us, we conclude that the defendant has not raised a serious doubt that the result of the proceeding might have been different had his waiver of counsel been adequately informed.¹

1. Background. The defendant, Nelson Barros, was born in Angola in 1973 and, amidst the civil war that began there in 1975, moved with his parents to Portugal in 1977. He subsequently moved to the United States in 2015 to reside with his now-wife and became a lawful permanent resident in 2016. In 2017, the defendant was arrested and charged with one count of assault and battery on a household member in violation of G. L. c. 265, § 13M (a), on an allegation that he punched his wife in the face.

At the defendant’s arraignment the next day, the judge asked the defendant if he wished to have an attorney represent him. The following exchange between the judge and the defendant took place:

The judge: "So do you intend to hire a lawyer, or are you asking the Court to appoint[ ] an attorney for you?"

The defendant: "Sorry, excuse me?"

The judge: "Excuse me?"

The defendant: "I didn’t understand."

The judge: "Do you have any trouble speaking and understanding --"

The defendant: "No, I understand English."

The judge: "All right. You have an option to hire an attorney on this case if you’d like.

"The Court would consider appointing a lawyer for you if you cannot afford one on your own, or you can handle the case yourself without an attorney, and that’s your choice."

The defendant: "Myself."

The defendant then signed a form, pursuant to S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016), acknowledging he had waived his right to counsel. The defendant proceeded to speak to the prosecutor. After recalling the case later that day, the judge again asked the defendant if he intended to proceed without counsel. The defendant responded affirmatively, and the judge informed him that he could change his mind at any time.

At the next pretrial hearing, the prosecutor made an offer to the defendant to admit to sufficient facts in exchange for one year of probation. Once the case had been called, the judge again inquired whether the defendant was representing himself, and the defendant stated he was.

Another hearing was scheduled to give the defendant time to consider the Commonwealth’s offer.

At his subsequent court appearance, the defendant admitted to sufficient facts to warrant finding him guilty and was placed on one year of probation. At the start of the hearing, the judge again asked the defendant if he understood that he had a right to have an attorney, asked the defendant to confirm that he signed the waiver of counsel form, and asked the defendant whether he still wished to "handle this without an attorney." The defendant gave brief affirmative responses to each question.

The judge then confirmed with the defendant that he understood he was giving up the right to a jury trial, outlined the rights the defendant would be forgoing by admitting to sufficient facts, and confirmed the defendant felt he had had enough time to think about his plea and "underst[oo]d the charge." At the conclusion of the colloquy leading up to the defendant’s admission, the trial court judge provided the defendant with the following warning about potential immigration consequences:

"If you’re not a citizen of the United States you’re hereby advised of the acceptance by this Court of your admission of sufficient facts or plea of guilty may have the consequences of deportation and exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States and that the offenses would have presumptively mandate [sic] removal from the U.S., and [F]ederal officials sought your removal [sic], it is practically inevitable that this plea would result in your deportation, exclusion from admission, or denial of naturalization."

The defendant responded that he understood the warning. The judge accepted the defendant’s admission, and the case was continued without a finding. One year later, the defendant completed his probation, and the charge was dismissed.

In 2022, the defendant was detained by Immigration and Customs Enforcement officers upon his return to the United States from a trip to visit his mother in Portugal. A notice from the United States Department of Homeland Security declared the defendant removable for a "crime of domestic violence" under the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i), due to his admission to sufficient facts to find him guilty of assault and battery on a household member.

While awaiting his hearing before the Immigration Court, the defendant, now represented by counsel, filed a motion to withdraw his plea pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The defendant argued in part that his plea was not made knowingly and voluntarily, stating in an affidavit that he "did not understand that by taking this plea, [he] would be in danger of deportation." After a hearing, the motion judge, who was not the plea judge, denied the defendant’s motion to withdraw his plea.

Represented by new counsel, the defendant then filed a second motion to withdraw his plea. The second motion alleged that the defendant did not validly waive his right to counsel before his admission to sufficient facts because the judge failed to conduct a colloquy to ensure the defendant understood the consequences of forgoing representation by counsel. The motion judge denied the motion, finding that the defendant’s waiver of the right to counsel was knowing and voluntary. The defendant timely appealed, and we granted his application for direct appellate review.

[3–6] 2. Discussion. a. Waiver of the right to counsel. "There is no question that the right to counsel in a criminal prosecution is a fundamental constitutional right" under both art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution. Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 234, 812 N.E.2d 805 (2004). This right "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself...