Commonwealth v. Nguyen

Commonwealth v. Tuan Van Nguyen

Opinion No. 130888

Nos. 9081CR2170, 9081CR2171

Superior Court of Massachusetts, Middlesex

July 10, 2015

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER DENYING MOTION FOR A NEW TRIAL

Kenneth W. Salinger, Justice of the Superior Court.

Tuan Van Nguyen pleaded guilty in December 1990 to three indictments charging him with assault with intent to rape indecent assault and battery, and assault and battery of a 20-year-old woman. Nguyen and the Commonwealth asked the judge to impose probation with no incarceration on the first two charges--structured as a sentence of three to five years in prison, with execution suspended for two years, during which time Nguyen would be on probation--and to place the last charge on file after accepting the change of plea. Judge Walter Steele accepted the guilty plea and imposed the agreed-upon disposition.

Nguyen now seeks to withdraw his guilty pleas on the ground that his lawyer provided inaccurate advice regarding the immigration consequences of this plea, and that as a result Nguyen was deprived of his rights to adequate counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Nguyen asserts that his lawyer incorrectly told him that a guilty plea resulting in this sentence would not affect Nguyen's immigration status or impair his future ability to become a lawful permanent resident or a naturalized citizen of the United States. At oral argument Nguyen represented that federal officials are in the process of seeking his removal from the United States because of his 1990 guilty plea and suspended sentence. This motion could not be referred to Judge Steele because he retired in 1996 and died in 2005.

The Court will DENY Nguyen's motion for a new trial because it concludes that the immigration advice by Nguyen's trial counsel was accurate when given and that justice was done when Nguyen's guilty plea was accepted. The suspended sentence agreed to by Nguyen turned out to have possible adverse immigration consequences because of subsequent changes to federal immigration law that were enacted in 1996, took effect in 1997, and apply retroactively to prior guilty pleas or convictions. The failure of Nguyen's lawyer to anticipate such a statutory change was not ineffective assistance of counsel, however. Nor has Nguyen proved that his lawyer failed to discover facts that would have strengthened his defense and given him further reason not to plead guilty. And Nguyen has not shown that his guilty pleas were legally defective for any other reason. The Court may not vacate a twenty-five-year-old guilty plea that was not tainted by any constitutional or other legal error in order to help the defendant escape the effects of policy choices made by a later Congress, avoid removal from this country, and regain eligibility to become a naturalized citizen or permanent resident of the United States.

1. Legal Standards

The Court will treat Nguyen's motion as seeking a new trial even though Nguyen also asks the Court to dismiss the charges. See Commonwealth v. Cotto, 471 Mass. 97, 105, 27 N.E.3d 1213 (2015) (motion to withdraw guilty plea is treated as motion for new trial); Commonwealth v. Miozza, 67 Mass.App.Ct. 567, 573, 854 N.E.2d 1258, rev. denied, 447 Mass. 1114, 857 N.E.2d 1094 (2006) (post-conviction motion for mistrial or dismissal treated as new trial motion). " A motion for a new trial pursuant to Mass.R.Crim.P. 30(b) is the proper vehicle by which to seek to vacate a guilty plea." Commonwealth v. Scott, 467 Mass. 336, 344, 5 N.E.3d 530 (2014). Such a motion " is addressed to the sound discretion of the trial judge." Commonwealth v. Furr, 454 Mass. 101, 106, 907 N.E.2d 664 (2009), quoting Commonwealth v. Russin, 420 Mass. 309, 318, 649 N.E.2d 750 (1995). " A judge may grant the defendant's motion" for a new trial " only 'if it appears that justice may not have been done.'" Id., quoting Rule 30(b). " Justice is not done if the defendant has received ineffective assistance of counsel in deciding to plead guilty." Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394, 974 N.E.2d 645 (2012).

Nguyen bears the burden of proving that he did not receive constitutionally adequate assistance of counsel because his lawyer " failed adequately to advise [him] of the immigration consequences of his pleas, " that he suffered real prejudice or harm as a result, and that he should therefore be able to withdraw his guilty pleas. Commonwealth v. Balthazar, 86 Mass.App.Ct. 438, 440, 16 N.E.3d 1143 (2014). Applying the Sixth Amendment, the Supreme Court has " articulated the two steps required for establishing ineffective assistance of counsel [as follows]: 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.'" Commonwealth v. Clarke, 460 Mass. 30, 37, 949 N.E.2d 892 (2011), quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard that applies under art. 12 is essentially the same. Commonwealth v. Valentin, 470 Mass. 186, 189-90, 23 N.E.3d 61 (2014). " [T]o prevail on a claim of ineffective assistance of counsel in Massachusetts . . . [t]he defendant must show that counsel's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer, '" and that the defendant suffered some real prejudice as a result. Commonwealth v. Marinho, 464 Mass. 115, 123, 981 N.E.2d 648 (2013), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). " [S]atisfying the Saferian standard necessarily satisfies the Strickland standard." Commonwealth v. Sylvain, 466 Mass. 422, 427 n.5, 995 N.E.2d 760 (2013).

" In the context of a guilty plea, " as in this case, " in order to satisfy the 'prejudice' requirement, the defendant has the burden of establishing not only 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, " but also that " a decision to reject the plea bargain would have been rational under the circumstances." Clarke, supra, at 47, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (" reasonable probability . . . he would not have pleaded guilty"), and Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (" would have been rational under the circumstances"). " To prove the latter proposition, the defendant bears the substantial burden of showing that (1) he had an 'available, substantial ground of defense' 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." Clarke, supra, at 47, quoting Saferian, supra, at 96 (" available, substantial ground of defense"), and Hill, supra, at 60 (" special circumstances"). This last factor reflects the fact that a noncitizen defendant who is considering " the apparent benefits of a plea offer . . . confronts a very different calculus than that confronting a United States citizen. For a noncitizen defendant, preserving his 'right to remain in the United States may be more important to the client than any potential jail sentence.'" Commonwealth v. DeJesus, 468 Mass. 174, 184, 9 N.E.3d 789 (2014), quoting Padilla, supra, at 368, and I.N.S. v. St. Cyr, 533 U.S. 289, 322, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). " Thus, a determination whether it would be rational for a defendant to reject a plea offer 'must take into account the particular circumstances informing the defendant's desire to remain in the United States.'" DeJesus, supra, quoting People v. Picca, 97 A.D.3d 170, 183-84, 947 N.Y.S.2d 120 (N.Y. 2012).

2. Evidence and Factual Findings

2.1. No Evidentiary Hearing

After hearing oral argument by counsel for both sides, the Court exercises its discretion to decide Nguyen's motion without conducting an evidentiary hearing because the motion raises no substantial issue that requires further fact finding and neither Nguyen nor the Commonwealth has shown that an evidentiary hearing would " add anything to the information that has been presented in the motion and affidavits." Commonwealth v. Goodreau, 442 Mass. 341, 348-49, 813 N.E.2d 465 (2004); accord Mass.R.Crim.P. 30(c). No evidentiary hearing is warranted because Nguyen's motion is without merit even assuming that the facts submitted in support of his motion--as distinguished from the legal conclusions that Nguyen asks the Court to draw from those facts--are all true and credible. See Commonwealth v. Buckman, 461 Mass. 24, 44, 957 N.E.2d 1089 (2011) (affirming denial of evidentiary hearing on this ground); accord Commonwealth v. Ortiz, 67 Mass.App.Ct. 349, 361, 853 N.E.2d 1079, rev. denied, 447 Mass. 1112, 856 N.E.2d 181 (2006) (" If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence . . . will accomplish nothing." (quoting Goodreau, 442 Mass. at 348-49)).

Furthermore no evidentiary hearing is needed because the material facts are not in dispute. See Gordon, 82 Mass.App.Ct. at 395. Nguyen does not dispute that: (i) the...