Opinion
No. 11–P–891.
2012-06-22
COMMONWEALTH v. Derrick FITZGERALD.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for new trial, Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), on the grounds of ineffective assistance of counsel. The defendant maintains that his September 21, 2004, admission to sufficient facts on one count of assault and battery by means of a dangerous weapon in violation of G.L. c. 265, § 15A, was constitutionally defective because defense counsel failed to advise him of the immigration consequences of his admission. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010) ( Padilla ).
Background. The underlying case arose out of a 2004 bar fight in which the defendant was charged with hitting a patron and a parked car with a piece of wood. The motion judge, who was also the plea judge, initially found, based on the defendant's affidavit, that the defendant was misled by his counsel as to the immigration consequences of the plea and granted the motion. The Commonwealth filed for reconsideration. After an evidentiary hearing conducted prior to Padilla, the judge found that counsel was not ineffective because counsel advised the defendant his plea could have “potentially adverse impact” on his immigration status, and hence had not misled him. The judge further found that the statutory plea colloquy sufficed to apprise him of the risk.
Discussion. Counsel is ineffective if he fails to advise his client of the immigration consequences of a plea if the “deportation consequence is truly clear.” Id. at 1483. The crime of assault and battery by means of a dangerous weapon is such a crime, because it clearly constituted a crime of moral turpitude. See Destin v. Attorney General, 345 Fed. Appx. 485, 487 (11th Cir.2009), citing In the Matter of J-, 4 I & N. Dec. 512 (1951).
Counsel testified that he had met with the defendant for approximately fifteen minutes before the hearing, that he had not met with the client before that time, but that he had spoken to him on the telephone. The defendant denied having any substantive telephone conversations. Defense counsel also testified that he did not know whether the defendant was a legal resident. Counsel suggested that he knew that an admission could lead to automatic deportation, but also testified that he only advised the client that the immigration consequences were “potentially adverse.” He further testified that the defendant did not raise his immigration status and seemed unconcerned by it. RA 82–83. The judge gave the statutory plea colloquy and the defendant signed the “green sheet.” RA 79–83
Here, plea counsel did not advise the defendant of the certain immigration consequences of the admission to sufficient facts to assault and battery by means of a dangerous weapon.
It is also an aggravated felony punished by a total sentence of at least one year. See 18 U.S.C. § 16; 8 U.S.C. § § 1101( a ) (43)(F) & 1227( a )(2)(A)(iii) (2006 & Supp. III 2009). Destin, supra at 487. The parties have not cited to us any administrative decision or case law effective as of the time of the plea on this point, and we therefore do not rest our opinion on it.
The Commonwealth argues that the judge's immigration warnings, see G.L. c. 278, § 29D, and the defendant's signature on the “green sheet” cured any prejudice that may have arisen from plea counsel's failure to warn the defendant. The immigration warnings given by the plea judge were 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. Clarke, 460 Mass. 30, 48–49 n. 20 (2011) ( Clarke ). Similarly, the “green sheet” did not inform the defendant that he “would” be deported, only that he might be. Ibid.
Once ineffective assistance has been demonstrated, the defendant additionally 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.” Id. at 47, citing Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant averred that he would not have admitted to sufficient facts if he had known of the immigration consequences of his plea, arguing that he has a construction business and two small children in this country. The Commonwealth maintains that the evidence is overwhelming and that the decision to plead before a specific judge was strategic.
In order to withdraw an earlier plea (or admission), the defendant must show either that “(1) he had an ‘available, substantial ground of defence,’ Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting a 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 at 47–48.
The motion judge, who is now deceased, did not have the benefit of Clarke when ruling on the motion for reconsideration, nor did the parties at the time that the evidentiary hearing was held. Although the Commonwealth argued the first prong of Clarke in its motion pleadings, and the defense submitted evidence relevant to the third prong, the judge made no findings. Neither party addressed the plea issue. Accordingly, we remand for an evidentiary hearing and for findings on the issue of prejudice in light of Clarke.
The defendant also admitted to sufficient facts as to one count of assault and battery in violation of G.L. c. 265, § 13A, and one count of malicious destruction of property in violation of G.L. c. 26, § 127. The defendant moved for a new trial as to all of these offenses in the District Court, but has not argued on appeal that either the crime of assault and battery or the crime of malicious destruction of property is an aggravated felony or a crime of moral turpitude. We have therefore considered the ineffective claim with respect to the crime of assault and battery by means of a dangerous weapon only. However, while this case was pending on appeal, the United States Court of Appeals for the First Circuit decided that malicious destruction of property is a crime of moral turpitude. Da Silva Neto v. Holder, No. 11–1847 (1st Cir. May 10, 2012). As neither of the parties had the benefit of this authority below and, as this matter is being remanded for additional findings, the interests of judicial economy suggest that justice will be better “done” within the meaning of rule 30(b) if the defendant is permitted to renew his arguments regarding the propriety of the admission to sufficient facts in a single proceeding upon remand.
Accordingly, the denial of the motion for new trial with respect to the admission to sufficient facts on the count of assault and battery by means of a dangerous weapon is reversed, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the order denying the motion for new trial is affirmed without prejudice to defendant's right to resubmit the issue of the validity of his admission to sufficient facts on the counts of assault and battery and malicious destruction of property.
So ordered.