Opinion
19-P-358
05-05-2020
COMMONWEALTH v. REGINALD DORISCA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2013, the defendant, Reginald Dorisca, pleaded guilty to credit card fraud over $250, identity fraud, and disorderly conduct. In 2018, he filed a motion for a new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that his plea counsel had failed to advise him of the immigration consequences of his pleas under Padilla v. Kentucky, 559 U.S. 356, 366-370 (2010), and Commonwealth v. Clarke, 460 Mass. 30, 45-49 (2011), and that, accordingly, his guilty pleas were not made knowingly and voluntarily. After a hearing, the motion judge, who was also the plea judge, denied the motion. The defendant appeals from that denial. We affirm, although on grounds different than those on which the motion judge relied.
In his affidavit in support of his motion, Dorisca indicated that he is not a United States citizen, but averred that he has been a legal permanent resident of the United States since 1996.
We treat a motion to withdraw a guilty plea like a motion for new trial pursuant to rule 30 (b), and review the denial of the motion for "a significant error of law or other abuse of discretion." Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014), quoting Commonwealth v. Robideau, 464 Mass. 699, 702 (2013). See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018). "[A] judge's discretionary decision constitutes an abuse of discretion where . . . the judge made a clear error of judgment in weighing the factors relevant to the decision." Commonwealth v. Lopez, 96 Mass. App. Ct. 34, 38 (2019), quoting Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187 (2015). Where, as here, the motion judge is the same judge who heard the plea, we grant "substantial deference" to the judge's decision. Commonwealth v. Williams, 71 Mass. App. Ct. 348, 353-354 (2008), quoting Commonwealth v. Grant, 426 Mass. 667, 672 (1998). We review the defendant's ineffective assistance of counsel claim under the familiar standard set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (two-pronged test asking [1] whether counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer," and [2] if so, whether counsel's conduct "likely deprived the defendant of an otherwise available, substantial ground of defence").
"If the Saferian test is met, the Federal test is necessarily met as well." Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 440 n.4 (2014), quoting Clarke, 460 Mass. at 45.
Ineffective assistance. "Under Padilla, '[constitutionally competent] counsel must inform [his or her] client whether [the client's] plea carries a risk of deportation.'" Clarke, 460 Mass. at 45, quoting Padilla, 559 U.S. at 374. The advice required depends upon the certainty of the risk that the defendant faces. "[W]hen the deportation consequence is truly clear . . . the duty to give correct advice is equally clear;"; "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Clarke, supra at 42, quoting Padilla, supra at 369.
Counsel must also inform his or her client of other consequences of a conviction, including denial of naturalization or refusal of reentry into the United States. See Commonwealth v. Marinho, 464 Mass. 115, 125-126 (2013), citing Committee for Public Counsel Services, Assigned Counsel Manual c. 4, at 15 (rev. June 2011).
In moving for a new trial, Dorisca argued that the credit card fraud and identity fraud charges to which he pleaded guilty in 2013 were "crimes of moral turpitude" for the purposes of Federal immigration law, and that as a consequence, his plea to those charges clearly rendered him deportable; the judge agreed. We concur with the judge that the offenses were "crimes of moral turpitude." See Jordan v. De George, 341 U.S. 223, 227 (1951) ("Without exception, [F]ederal and [S]tate courts have held that a crime in which fraud is an ingredient involves moral turpitude"). We disagree, however, that on this record, Dorisca's plea to those offenses in this case clearly rendered him deportable. This is because, while rendering an alien deportable if he or she is convicted of two or more crimes of moral turpitude, Federal law also creates an exception where the convictions at issue "[arise] out of a single scheme of criminal misconduct." See 8 U.S.C. § 1227(a)(2)(A)(ii) (2013).
The judge did not reach Dorisca's contention that his plea had the effect of permanently barring Dorisca from becoming a United States citizen.
In the absence of a statutory definition of the term, "single scheme," the First Circuit has deferred to the Board of Immigration Appeals' (BIA) interpretation, concluding that "[t]he statutory exception [for crimes of moral turpitude committed as part of a 'single scheme'] refers to acts, which although separate crimes in and of themselves, were performed in furtherance of a single criminal episode, such as where one crime constitutes a lesser offense of another or where two crimes flow from and are the natural consequence of a single act of criminal misconduct." Balogun v. Immigration & Naturalization Serv., 31 F.3d 8, 9 (1st Cir. 1994), quoting Matter of Adetiba, 20 I. & N. Dec. 506, 511 (BIA 1992).
Here, Dorisca's 2013 convictions of credit card fraud and identity fraud arose from his repeated use of a stolen credit card, on a single day, to purchase some $1,600 in retail merchandise at the North Shore Mall in Peabody, Massachusetts. There is nothing in the record to show which of Dorisca's uses of the stolen card on that day provided the basis for the two fraud-based charges; given that identity fraud under G. L. c. 266, § 37E (b), is a lesser included offense of credit card fraud under G. L. c. 266, 37C (e), see Commonwealth v. Thompson, 89 Mass. App. Ct. 456, 463-464 (2016), the two charges could have arisen from the same transaction. As we see an argument that those two crimes of moral turpitude thus "[arose] out of a single scheme," we conclude that on this record, the defendant has not shown a "clear" risk that he was, or would have been, rendered deportable by agreeing to the 2013 plea.
The defendant has not included transcripts of either the plea colloquy or the hearing on his motion for new trial in the appellate record. See Mass. R. A. P. 9 (d) (3), as amended, 417 Mass. 1601 (1994).
If so, the defendant's conviction of identity fraud would be duplicative of the conviction of credit card fraud. See Commonwealth v. Thompson, 89 Mass. App. Ct. at 465. While we acknowledge the possibility that the identity fraud charge arose from Dorisca's unsuccessful final attempt to use the card, rather than from one of the completed transactions, the possibility that both convictions arose from one of the completed transactions is enough to persuade us that the immigration consequences of the plea were not clear, in light of the "single scheme" exception in 8 U.S.C. § 1227(a)(2)(A)(ii).
We are aware of the reference in the judge's written decision denying Dorisca's motion for new trial to earlier shoplifting charges against the defendant, apparently continued without findings of guilt in 2007 and 2008. Our record does not include any detail about these charges. As the defendant does not argue the effect, if any, that these earlier dispositions had on the immigration consequences of his 2013 plea, we do not consider that question.
To the extent that Dorisca's contention that the 2013 plea "automatically bar[red] . . . him from becoming a United States citizen" rises to the level of appellate argument, see Commonwealth v. Norman, 87 Mass. App. Ct. 344, 347 n.6 (2015), citing Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975) (single unsupported sentence in appellant's brief "does not rise to appellate argument that we need consider"), we are not persuaded.
The point was made in the affidavit of Dorisca's appellate attorney submitted with the defendant's motion for new trial, but is neither argued adequately nor supported in his brief on appeal.
The defendant failed to cite authority in support of the proposition that the 2013 convictions established a permanent bar to his becoming a United States citizen. In the absence of such guidance, we look to the statutory law relating to naturalization, and consider the effect of those convictions on the requirement, pursuant to 8 U.S.C. § 1427(a), that an applicant for naturalization demonstrate that he or she is a person of "good moral character." See 8 U.S.C. § 1427(a). The term "good moral character" is not explicitly defined for these purposes in § 1427 or in the Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et seq. See United States v. Hovsepian, 359 F.3d 1144, 1166 (9th Cir. 2004). The INA, however, "identifies [certain] categories of conduct that render an individual per se lacking in good moral character." Amador-Palomares v. Ashcroft, 382 F.3d 864, 867 (8th Cir. 2004), citing 8 U.S.C. § 1101(f). There is no indication in this record that any of the disqualifiers listed in 8 U.S.C. § 1101(f) applied to Dorisca. As to § 1101(f)(8), providing that an applicant's conviction of an "aggravated felony" precludes an applicant from the status of "a person of good moral character," it is far from clear that either of the crimes to which the defendant pleaded guilty in 2013 is an aggravated felony in the immigration context. See 8 U.S.C. § 1101(a)(43) (defining "aggravated felony" for purposes of INA). Further complicating the question, even if the 2013 pleas had implicated aggravated felonies, the impact on Dorisca's immigration status could, under the INA, have been limited to a period of three to five years, meaning that by the time of the filing of his motion for new trial, the issue would have been moot.
Title 8 U.S.C. § 1101(f) provides:
"For the purposes of this Act -- No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was
"(1) a habitual drunkard;
"(2) [Repealed]
"(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D), (6)(E), and (10)(A) of section 212(a) of this Act [8 USCS § 1182(a)]; or subparagraphs (A) and (B) of section 212(a)(2) [8 USCS § 1182(a)(2)] and subparagraph (C) thereof [of such section] (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
"(4) one whose income is derived principally from illegal gambling activities;
"(5) one who has been convicted of two or more gambling offenses committed during such period;
"(6) one who has given false testimony for the purpose of obtaining any benefits under this Act;
"(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
"(8) one who at any time has been convicted of an aggravated felony (as defined in subsection [a] [43]); or
"(9) one who at any time has engaged in conduct described in section 212(a)(3)(E) [8 USCS § 1182(a)(3)(E)] (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) [8 USCS § 1182(a)(2)(G)] (relating to severe violations of religious freedom)."
We are, however, mindful of the fact that the INA is not the sole basis on which a given offense may be classified as an "aggravated felony," and that "whether a particular crime is an 'aggravated felony' . . . is not 'easily ascertained.'" Padilla, 559 U.S. at 378 (Alito, J., concurring). We do not suggest that Dorisca faced no risk that the offenses included in the 2013 plea would qualify as such.
The statutory period during which good moral character is required typically begins five years before the date the applicant files the application for naturalization, and continues until the applicant takes the oath of allegiance and becomes a United States citizen. See 8 C.F.R. § 316.10(a)(1) (2013). This period, however, may be shorter or longer than five years. Spouses of United States citizens may be eligible for naturalization provided that they can demonstrate good moral character for a statutory period of at least three years. See 8 U.S.C. § 1430(a). On the other hand, the Attorney General "may take into consideration . . . the applicant's conduct and acts at any time prior to that period." 8 U.S.C. § 1427(e) (2013).
At a minimum, on this record, it was far from clear that the defendant's 2013 plea would bar him permanently from naturalization.
We turn to the performance of counsel and the advice the defendant was given in this case. We begin by observing that, had the immigration consequences of the 2013 plea been clear, plea counsel's failure to do more than review with the defendant the "alien rights" under G. L. c. 278, § 29D, printed on the plea tender form would have been insufficient to meet even the minimum standard under Saferian. See Padilla, 559 U.S. at 368-369. See also Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015). The defendant's receipt of such warnings is "not an adequate substitute for defense counsel's professional obligation to advise [the] client of the likelihood of specific and dire immigration consequences that might arise from such a plea." Commonwealth v. DeJesus, 468 Mass. 174, 177 n.3 (2014), quoting Clarke, 460 Mass. at 48 n.20. See Padilla, 559 U.S. at 369, 374. See DeJesus, 468 Mass. at 180-181 (where deportation "practically inevitable[,]" warning client that he was "eligible for deportation" insufficient); Henry, 88 Mass. App. Ct. at 454 (where deportation "presumptively mandatory[,]" reading tender of plea form insufficient); Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 442-443 (2014) ("As legal research would have indicated that the crimes were ones involving moral turpitude," counsel's failure to inform defendant that guilty plea "subject[ed] him to presumptively mandatory deportation fell below an objective standard of reasonableness").
The defendant does not dispute that plea counsel reviewed the rights printed on the [t]ender of [p]lea or [a]dmission & [w]aiver of [r]ights form: "I understand that if I am not a citizen of the United States, the acceptance by this court of my plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States."
We are mindful of the significance of immigration considerations in a noncitizen's decision about whether and on what terms to resolve a criminal charge. In a case like this one, however, where the record identifies no clear immigration consequence stemming from a noncitizen's plea, and the defendant himself fails to support his claim that he is exposed to such a consequence by reference to any specific legal ground, we conclude that Padilla and its progeny require that "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Clarke, 460 Mass. at 42, quoting Padilla at 369. Plea counsel's review of the alien rights did this, and no more. While certainly not a model of best practice, we conclude that in this case, plea counsel's conduct was minimally adequate. See Marinho, 464 Mass. 115, 127 (2013), quoting Clarke, supra at 38 ("We 'judge the reasonableness of counsel's challenged conduct on the facts of the particular case'").
To the extent that Dorisca suggests that plea counsel failed to determine his immigration status before tendering the plea, that issue is not developed in the record and therefore we do not address it. Cf. Clarke, 460 Mass. at 33 (defense counsel averred that she was unaware that client was not United States citizen).
Given our conclusion that the defendant failed to show that his plea counsel's performance fell below the minimum standard under Saferian, we conclude that counsel was not ineffective. Accordingly, we do not reach the issue of prejudice.
Order denying motion for new trial affirmed.
By the Court (Hanlon, Blake & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 5, 2020.