Commonwealth v. Taron T.

236 N.E.3d 1206

104 Mass.App.Ct. 219

COMMONWEALTH

v.TARON T., a juvenile.

No. 22-P-1081

Appeals Court of Massachusetts, Berkshire.

Aruged December 1, 2023

Decided May 24, 2024

Alien. Indecent Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Assault with Intent to Rape. Youthful Offender Act. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Practice, Criminal, Plea, Assistance of counsel.

Indictments found and returned in the Superior Court Department on October 31, 2013.

A motion to withdraw a plea of guilty, filed on April 1, 2021, was heard by David B. Paradis, J., and a motion for reconsideration was considered by him.

Eva G. Jellison, for the juvenile.

Patrick Sadlon, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Milkey, & D’Angelo, JJ.¹

MILKEY, J.

₂₂₀In 2013, the juvenile, then sixteen, sexually assaulted three other boys at a high school soccer camp. He eventually pleaded to being adjudicated a youthful offender with respect to two counts of indecent assault and battery of a person fourteen year's or older, and three counts of assault and battery by means of a dangerous weapon (ABDW). As part of the plea agreement, the juvenile also agreed to be adjudicated delinquent with respect to two counts of assault with intent to rape a child. In 2021, the juvenile filed a motion to withdraw his youthful offender plea on the ground that his counsel had not provided him adequate advice about the immigration consequences of the plea. See Padilla v. Kentucky, 559 U.S. 356, 359-360, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). After holding an evidentiary hearing, a Juvenile Court judge, who was not the plea judge, denied that motion. We agree with the motion judge that the juvenile is unable to demonstrate prejudice from any inadequate advice given by plea counsel. We also are unpersuaded by the juvenile’s argument that his plea was not knowing and voluntary. We therefore affirm.

Background. The juvenile is a Brazilian citizen who came to fire United States with his mother on a tourist visa in 2000. Overstaying that visa, he settled in Somerville where he joined a soccer team at his high school. In the summer of 2013, as a rising junior, the juvenile attended a soccer camp in Otis with his team.

1. The sexual assaults. On August 25, 2013, the juvenile, along with two cohorts (codefendants), went to the freshman cabin where they sexually assaulted three other students. Unlike most sexual assaults, there were many eyewitnesses to the attack, at ₂₂₁ least eight of whom were interviewed by the police and testified to the grand jury. There was also photographic evidence of the attack in progress. Al- though eyewitness accounts of the incident differed in some respects, they were consistent with respect to the most significant facts. At the plea hearing, the prosecutor provided a proffer about the sexual assaults. We begin by summarizing that account.

When the juvenile and his codefendants entered the freshman cabin, they announced that "[t]here’s going to be a beat down" (or words to that effect). Then, armed with a broomstick, they proceeded to attack each of the three victims (to whom we refer by pseudonyms). The juvenile assaulted Colin with the broomstick, pressing it against his buttocks. The juvenile then tried to pull down Juan’s pants, and he touched Juan’s genitals through his clothing. The third victim, Manny, fared the worst. With Manny’s shorts pulled down, the juvenile "took the broom and placed it between [Manny’s] buttocks near his anal opening." This caused Manny to bleed, and his blood was found on the cabin floor. Other boys observed that Manny’s rectal area "was red, swollen, abraded, scratched, bleeding, etcetera."

At the plea hearing, the juvenile admitted to the truth of the factual account recited by the prosecutor. Through his motion to withdraw his plea, he did not seek to disavow those admissions, but brought additional facts to the judge’s attention, including details about the crimes. The Commonwealth likewise submitted additional factual material that went significantly beyond the sanitized version of events offered at the plea hearing. As a result of the parties’ respective efforts, the motion judge had before him an enormous amount of documentary material, including, among other items, police reports, witness interviews, grand jury minutes, various proffers as to experts who might have testified if the matter had gone to trial, and materials related to the juvenile’s immigration proceedings. In addition, both in the Juvenile Court and on appeal, the juvenile cited to numerous scholarly articles. We briefly review some of the additional material, but do so only to the extent necessary to address the juvenile’s arguments on appeal.

2. Hazing. The juvenile seeks to portray the soccer camp incident not as a sexual assault, but as a product of a "culture of hazing" prevalent in youth sports. Borrowing from the scholarly literature, he adopts the following definition of hazing as "any activity expected of someone joining a group that humiliates, degrades, abuses, or endangers, regardless of the person’s willingness to ₂₂₂participate."² See Parks & DeLorenzo, "Hazing in High School Athletics: An Analysis of Victims," 29 Marq. Sports L. Rev. 451, 480 (2019). The juvenile maintains that his actions were driven not by sexual desire but by "an intent tied to the hazing culture." He also argues that, as a victim of past hazing himself, such behavior had become "normalized" for him. The juvenile points to two hazing experts whom he could have called in his defense had the case gone to trial.

3. Consent. The juvenile also contends that had there been a trial, he might have been able to convince jurors that Manny consented to the indecent assault and battery with the broomstick. Although that is a dubious proposition, as discussed below, we turn now to a fuller account of the attack on Manny, as described by him and other eyewitnesses. According to them, the juvenile approached Manny and told him that he was "gonna get it now." The juvenile then gave Manny the choice of "get[ting] the broom up [his] behind" or having "Icy Hot [rubbed] all over [his] testicles and [his] behind."³ Manny at first refused to make that choice, but later reluctantly indicated his preference for the broomstick. The juvenile then told Manny, whose pants were pulled down, to bend over, and then "with all his force pulled - put it in."⁴

4. Penetration. In his proffer at the plea, the prosecutor made no claim that the juvenile penetrated Manny’s anus with the broomstick. That issue would have been relevant to whether the juvenile had committed forcible rape of a child (an offense for which the juvenile had been indicted but that was nol prossed as part of the plea agreement). The documentary evidence before the motion judge included statements by Manny that he believed there was penetration, and of other witnesses describing Manny’s injuries to include a sore like "a really, really big blister … like a really big bubble that was really, really bright red." As mentioned above, there was also blood on the floor of the cabin. However, a doctor who examined Manny three days later noted that the broomstick "was not really inserted rectally but scraped ₂₂₃[Manny]."⁵

5. The plea agreement. A grand jury indicted the juvenile, as a youthful offender, for one count of rape of a child with force, two counts of assault with intent to rape, three counts of ABDW, and one count of indecent assault and battery on a person over the age of fourteen. As noted, on April 6, 2015, the juvenile pleaded to being adjudicated a youthful offender with respect to two counts of indecent assault and battery, and three counts of ABDW, and to being adjudicated delinquent on two counts of assault with intent to rape a child. Before accepting the juvenile’s plea, the plea judge engaged in the standard colloquy designed to ensure the plea was knowing and voluntary. This colloquy included the judge’s warning to the juvenile "that if [he was] not a citizen of the United States, that under federal law, a plea that you are a youthful offender, okay, to the offenses, may result in deportation and exclusion from the United States of America or a denial of naturalization." See G. L. c. 278, § 29D. The juvenile affirmatively indicated that he understood this. Pursuant to the plea agreement, the juvenile was committed to the Department of Youth Services (DYS) until he turned twenty-one, and he received a suspended prison sentence of three to four years.

6. Plea counsel’s advice on immigration consequences. Although plea counsel’s principal focus was keeping the juvenile out of jail, he knew that the juvenile faced possible immigration repercussions from his criminal proceedings. In fact, the United States Immigration and Customs Enforcement (ICE) arrested the juvenile for overstaying his tourist visa shortly after his arrest on the State charges. See 8 U.S.C. § 1227(a)(1)(B). Thus, the juvenile and defense counsel knew he was facing potential deportation while his plea agreement was negotiated.

[1] Plea counsel consulted with an attorney at the Committee for Public Counsel Services Immigration Impact Unit about the immigration consequences of the charges and of possible plea agreements.

Through this process, plea counsel learned that, at the time, it was unclear whether youthful offender adjudications would be considered "convictions" for immigration purposes. This created some uncertainty about the immigration consequences of the juvenile’s being adjudicated a youthful offender (whether by plea agreement or otherwise). However, plea counsel ₂₂₄was aware that, assuming that a plea to being a youthful offender did not automatically bar the juvenile from being allowed to stay, his fate still would depend on the discretion of a Federal immigration judge. This was a serious concern...