Commonwealth v. Al-Murad

100 Mass.App.Ct. 1103

172 N.E.3d 438 (Table)

COMMONWEALTH

v.Mohammed AL-MURAD.

20-P-1337

Appeals Court of Massachusetts.

Entered: July 30, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion for new trial, brought pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010), and Commonwealth v. Clarke, 460 Mass. 30 (2011). He argues that he should have been permitted to withdraw his 2019 guilty pleas because his plea counsel was ineffective in failing to provide accurate advice regarding the immigration consequences of his pleas. We vacate the order denying the motion and remand the case for further proceedings.²

Background. The defendant, who was born in Iraq and has been a lawful permanent resident of the United States since 2015, was charged in 2019 with various offenses at two separate mosques. The charges were two counts of breaking into a depository and one count each of breaking and entering in the daytime with intent to commit a felony, larceny from a building, vandalism, disturbing the peace, and disorderly conduct. At the time of his October 1, 2019 guilty pleas, the defendant was already serving an eighteen-month committed sentence, based on a conviction after a jury trial of indecent assault and battery on a child under the age of fourteen (IAB on a child). An appeal from that conviction was pending.³

On October 1, 2019, the defendant offered to plead guilty to the breaking into a depository, breaking and entering, larceny, and vandalism charges. The Commonwealth proposed eighteen-month concurrent house of correction sentences to run from and after the IAB on a child sentence, plus payment of $1700 in restitution. The defendant proposed six-month concurrent house of correction sentences that would also run concurrently with the IAB on a child sentence, plus restitution. The judge informed the defendant that he would impose eighteen-month house of correction sentences, to run concurrently with each other and the IAB on a child sentence, with one year to serve, the balance suspended, and an order for restitution. Further, if the defendant paid the restitution within sixty days, the judge would entertain a motion to revise and revoke so as to reduce the sentences to one year committed, still to run concurrently with each other and the IAB on a child sentence, but without any further, suspended portion of the sentences. The disturbing the peace charge would be placed on file with the defendant's consent, and the vandalism and disorderly conduct charges would be dismissed.

After a full colloquy, including the immigration warning required by G. L. c. 278, § 29D, and a further warning about possible immigration consequences,⁴ the defendant agreed to accept the court's disposition. Subsequently, the defendant timely paid the required restitution, and his sentences were reduced to one year.

In August of 2020, the defendant, represented by successor counsel, filed a motion for new trial, seeking to withdraw his guilty pleas, and arguing that plea counsel had been ineffective in failing to advise him about the pleas’ immigration consequences. Accompanying the motion was an affidavit from the defendant stating that (1) plea counsel had never advised him of such consequences; (2) the first time he had ever heard of them was during the plea colloquy with the judge; (3) he was still not sure whether the consequences would apply to him, since he had not spoken to plea counsel about them; and (4) had he known at the time that his pleas would result in convictions of "aggravated felonies" making his deportation "all but mandatory," he would not have pleaded guilty and instead would have gone to trial. Also accompanying the motion was an affidavit from successor counsel, detailing his conversations with and unsuccessful efforts to obtain an affidavit from plea counsel. According to successor counsel's affidavit, plea counsel neither expressly claimed to have advised the defendant about the pleas’ immigration consequences nor expressly denied having failed to do so.

The motion judge, who was also the plea judge, held a nonevidentiary hearing and then denied the motion without a written opinion. This appeal followed.

Discussion. "A postsentence motion to withdraw a plea is treated as a motion for a new trial." Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). We review a judge's decision denying such a motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We review an ineffective assistance of counsel claim under the two-prong analysis set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

1. Plea counsel's performance. Deportation (or removal)⁵ from the United States of a noncitizen who is convicted of an aggravated felony is "practically inevitable," Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 398 (2012), quoting Padilla, 559 U.S. at 364, or "presumptively mandatory." Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 725 (2012), quoting Padilla, supra at 369. Accordingly, counsel "was obligated to provide to his client, in language that the client could comprehend, the information that presumptively mandatory deportation would have been the legal consequence of pleading guilty. Stated differently, counsel needed to convey that, if Federal authorities apprehended the defendant, deportation would be practically inevitable." Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014).

Here, the defendant asserted that plea counsel had never done so, and successor counsel's affidavit could be read as supporting that position. Of course, a judge is not required to credit the defendant's affidavit or to hold a hearing on a motion for a new trial, even where nothing in the trial record directly contradicts the affidavit. See Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003) ; Commonwealth v. Rzepphiewski, 431 Mass. 48, 55-56 (2000). The judge here might have denied the motion for that reason. However, the record does not indicate that he did so, and we are unwilling to assume that this was the basis for his ruling.⁶ We therefore turn to the question whether, assuming plea counsel's performance was deficient, the defendant was prejudiced. If he was not, then the motion was properly denied.

2. Prejudice. "[I]n order to satisfy the ‘prejudice’ requirement, the defendant has the burden of establishing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ " Clarke, 460 Mass. at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). "At a minimum, this means that the defendant must aver that to be the case." Clarke, supra, citing Hill, supra at 60. "After establishing that a defendant has satisfied this baseline requirement, a judge should proceed in two steps." Commonwealth v. Lys, 481 Mass. 1, 7 (2018). First, the defendant "must ‘convince the court that a decision to reject the plea bargain would have been rational under the circumstances.’ " Clarke, supra at 47, quoting Padilla, 559 U.S. at 372. See Lys, supra at 7.

"To prove [rationality], the defendant bears the substantial burden of showing that (1) he had an ‘available, substantial ground of defence’ ... that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of ‘special circumstances’ that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty" (citations and footnote omitted).

Clarke, supra at 47-48. "If the defendant does establish at least one of the Clarke factors, then the judge must move to the second step and evaluate whether, under the totality of the circumstances, there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice." Lys, 481 Mass. at 7-8. See Commonwealth v. Lavrinenko, 473 Mass 42, 55, 59 (2015).

Here, the defendant's affidavit asserted that if he had been properly advised of the immigration consequences, he would not have pleaded guilty and instead would have gone to trial. The defendant argues that such a decision would have been rational based on the second and third Clarke factors, i.e., those relating to a different plea bargain and to special circumstances. We turn first to the special circumstances issue.

a. Special circumstances. The defendant's affidavit asserted that, when United States military forces invaded Iraq in 2003, his father and uncle agreed to help supply petroleum to a United States military base. Shortly thereafter, his uncle and the uncle's family were found murdered, and his parents were kidnapped; he had not heard from them since, and did not know what happened to them, but assumed they were dead. The defendant was sure that his uncle's murder and his parents’ kidnapping were a result of their cooperation with the United States military. In 2004, the defendant and his brother crossed into Syria, where they were accepted into a United Nations refugee program and spent five years there before traveling to Turkey. They came to the United States in 2014. The defendant is "scared to return to Iraq because it is not safe," he believes that if he is "sent back to Iraq [he] will be killed by the same people responsible for murdering [his] uncle and killing [his] parents," and he has "no contacts left in Iraq," having left there when he was nineteen years old.

At the motion hearing, the judge did not address or state whether he credited these allegations. If credited, they could support a finding that the defendant placed, or would have placed, particular emphasis on immigration...