Commonwealth v. Gordon

82 Mass.App.Ct. 389

974 N.E.2d 645

COMMONWEALTH

v.Daneroy GORDON.

No. 11–P–435.

Appeals Court of Massachusetts, Suffolk.

Argued June 1, 2012.

Decided Sept. 6, 2012.

Amanda Teo, Assistant District Attorney, for the Commonwealth.

Derege B. Demissie, Cambridge, for the defendant.

Present: CYPHER, KAFKER, & GRAHAM, JJ.

KAFKER, J.

In 2008, the defendant, Daneroy Gordon, pleaded guilty to charges including firearms offenses and assault and battery on a police officer (ABPO). His sentences includedeighteen months committed in the house of correction for illegally possessing a firearm and, as relevant here, a concurrent sentence of one year for ABPO. As the defendant is not a United States citizen, the firearms convictions made it possible he would be deported. However, the conviction of ABPO, given the one-year sentence he received, made his deportation certain.

After deportation proceedings were commenced against him, the defendant moved for a new trial under Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)( Padilla ), asserting that his plea counsel was ineffective for advising him that the immigration authorities would only consider the firearms charges and not the ABPO charge. A judge of the Boston Municipal Court ultimately granted the motion and vacated the defendant's guilty plea on the ABPO charge.¹ The Commonwealth appealed, arguing that the defendant did not meet his burden on either element of his ineffective assistance of counsel claim, and that the motion judge was required to hold an evidentiary hearing. Because we agree that an evidentiary hearing is necessary to decide the defendant's claim, we vacate and remand for further proceedings.

1. Procedural history. On December 15, 2008, the defendant pleaded guilty to all five counts in the complaint against him: carrying a firearm without a license, in violation of G.L. c. 269, § 10( a ) (Count 1); unlawful possession of ammunition, in violation of G.L. c. 269, § 10( h ) (Count 2); carrying a loaded firearm without a license, in violation of G.L. c. 269, § 10( n ) (Count 3); assault and battery on a police officer, in violation of G.L. c. 265, § 13D (Count 4); and resisting arrest, in violation of G.L. c. 268, § 32B (Count 5). After hearing sentencing recommendations from the prosecution and defense counsel, the plea judge (who has since retired) imposed the following sentences: on Count 1, two and one-half years in the house of correction, eighteen months to serve, the balance suspended for three years; on Count 2, eighteen months in the house of correction concurrent with Count One; on each of Counts 4 and 5, one year in the house of correction concurrent with Count One; and on Count 3, three years of probation from and after the sentence on Count 1. These sentences were largely consistent with the defendant's recommendations, and in particular, the plea judge acceptedthe defendant's sentencing recommendations on Counts 4 (ABPO) and 5 (resisting arrest).

As part of the plea colloquy, the judge gave, in substance, the immigration warnings required by G.L. c. 278, § 29D, telling the defendant that “a disposition of this nature could affect your status with the department of immigration and naturalization to the extent that it could result in ... deportation.” The tender of plea form, which was signed by the defendant, plea counsel, and the judge, indicated that the defendant understood that his plea “may have the consequence[ ] of deportation” and that plea counsel had explained the defendant's rights to him.²

On January 2, 2009, an officer of the United States Department of Homeland Security issued a notice to appear, commencing “removal,” i.e., deportation, proceedings against the defendant.³ The notice indicated that the defendant was subject to deportation because of his conviction of ABPO. The notice made no mention of the other charges of which the defendant was convicted.⁴

On May 16, 2010, the defendant, represented by new counsel, filed a “Motion to Vacate Conviction and/or Reconsider Prior Sentencing Order,” seeking that the court either vacate the defendant's “conviction” or retroactively reduce his sentences on the ABPO and resisting arrest charges from one year to eleven months. Among other things, he argued that his plea counsel had been ineffective under Padilla.

The defendant's affidavit stated, in part: “I accepted the plea in this case because my lawyer told me that I did not have any other options available to me. When I asked about my immigrationstatus he told me that ‘they would look at the gun charge, but they would not look at the Assault and Battery charge.’ ” He further stated: “My lawyer never told me that a reduction in my sentence of one day would make a difference in my deportation case. Had my lawyer informed me of that, I would have elected a trial and tried to obtain that reduction.” His affidavit also revealed the following background information: the defendant, a citizen of Jamaica, has been a lawful permanent resident of the United States since 1993, graduated from high school in Massachusetts, and has maintained steady employment in this country. The defendant's mother, girlfriend, and two children are all United States citizens.

The defendant also included an affidavit from motion counsel stating that a one-year sentence for ABPO meant that the defendant's deportation was mandatory, whereas he could apply for “cancellation of removal” if his sentence were less than one year. Counsel also averred that the “one year rule” was “firmly established” and that she had taught defense lawyers about it at continuing legal education programs and annual trainings for the Committee for Public Counsel Services. There was initially no affidavit from plea counsel.

The motion judge held a nonevidentiary hearing at which she stated that an affidavit from plea counsel “would be very helpful to the court.” The same day, the defendant filed an affidavit from plea counsel stating, in its entirety, the following:

“1. I represented [the defendant] in the above matter.

“2. I remember the case well because we litigated a motion to suppress in front of Judge Kelly that was denied.

“3. I was aware of [the defendant's] immigration status and discussed it with him prior to his acceptance of the plea.

“4. [Motion counsel] has informed me that I had requested a one year suspended sentence on a charge of Assault and Battery on a Police Officer.

“5. Based on my review of this case, I believe I likely mistakenly advised [the defendant] that his concern was the charges involving the firearm offenses, and that he did not need to worry about the Assault and Battery on a Police Officer charge.”

The motion judge allowed the defendant's motion to reconsider his sentence without further hearing. At another nonevidentiary hearing a few weeks later, she denied the Commonwealth's oral motion to reconsider and revised the defendant's sentences for ABPO and resisting arrest to eleven months, nunc pro tunc.

The Commonwealth filed a timely motion for reconsideration, arguing that the defendant should have sought the revision of his sentence through a motion to revise and revoke pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), which would have been timely only within sixty days of sentencing. See Commonwealth v. Fanelli, 412 Mass. 497, 504 n. 4, 590 N.E.2d 186 (1992); Commonwealth v. DeJesus, 440 Mass. 147, 151, 795 N.E.2d 547 (2003). The Commonwealth also moved for written findings and rulings.

The motion judge issued a written decision in which she credited the affidavits of the defendant and plea counsel, noting with respect to the latter that “[h]e is an attorney who practices regularly in this court and [he] stated he ‘mistakenly advised [the defendant] that he did not have to worry about the Assault and Battery on a police officer.’ ” She found that “[t]here is a reasonable probability that but for the error of counsel there would have been a significant, different and more favorable result” with regard to the disposition of the case and the effect on to his immigration status. She quoted a passage from Justice Alito's concurrence in Padilla regarding the significance of “affirmative misadvice” by counsel in distorting the decision to plead guilty ⁵ and concluded: “The Court allows the Commonwealth's motion to reconsider.... However, the defendant's motion to vacate his plea is allowed, and the case is to be placed on the trial list.” The motion judge denied the Commonwealth's further motion for reconsideration, and the Commonwealth appealed.

2. Necessity for evidentiary hearing. A postsentence motion to withdraw a guilty plea is considered a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 [82 Mass.App.Ct. 394]2001), and is governed by the usual standards for such motions. See Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009), and cases cited. A strong policy of finality limits the grant of new trial motions to exceptional situations, and such motions should not be allowed lightly. See Commonwealth v. Lopez, 426 Mass. 657, 662–663, 690 N.E.2d 809 (1998), and cases cited. However, it is within a judge's discretion, applying a “rigorous standard,” to grant such a motion at any time “if it appears that justice may not have been done.” Commonwealth v. Williams, 71 Mass.App.Ct. 348, 353, 881 N.E.2d 1148 (2008), quoting from Commonwealth v. Berrios, 447 Mass. 701, 708, 856 N.E.2d 857 (2006), cert. denied, 550 U.S. 907, 127 S.Ct. 2103, 167 L.Ed.2d 819 (2007). Justice is not done if the defendant has received ineffective assistance of counsel in deciding to plead guilty. See Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 637–638, 863 N.E.2d 978 (2007).

The motion judge took the unusual step of granting what was effectively a motion for a new trial without holding an evidentiary hearing. This aspect of her ruling is governed by Mass.R.Crim.P. 30(c)(3), as appearing in 435...