Opinion
13-P-303
10-20-2014
COMMONWEALTH v. THANH NGUYEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Thanh Nguyen (Nguyen) appeals from the order denying his motion to withdraw his guilty plea and for a new trial. Nguyen argues that (1) his plea was not voluntary, knowing, or intelligent, and (2) that he received ineffective assistance of counsel. We affirm.
Background. Nguyen came to the United States in 1986 as a refugee from Vietnam. In 1989, he became a permanent resident. In July, 1994, Nguyen and two other individuals were arrested after one of the other individuals sold nine packets of heroin to an undercover officer. When officers tried to arrest the three, they fled in a vehicle, striking a police cruiser; eventually they were stopped and arrested. The Massachusetts State Police report from the incident indicates that two electronic pagers and currency were seized. At the time of his arrest, Nguyen had a firearm case pending in another court.
A District Court judge appointed Attorney Eugene McAuliffe to represent Nguyen. A trial date was set and Nguyen received notice of the date. According to a pretrial conference report that Nguyen signed, Nguyen received pretrial discovery regarding drug analysis and the Commonwealth's witnesses. Nguyen was not in custody at the time of the scheduled trial date and did not need an interpreter.
On February 1, 1995, Nguyen pleaded guilty to one count each of heroin distribution and conspiracy to violate the controlled substance laws. Because of the passage of time, no record of the colloquy exists. However, a form labelled "Tender of Plea or Admission" shows that Nguyen offered to plead guilty to both charges and to receive a six month sentence, suspended for one year. The plea judge rejected the proposed sentence and imposed a one year sentence with thirty days to serve. Nguyen signed this form indicating that he accepted the judge's sentence and also signed a form waiving his right to a jury trial. Under other disposition on the docket sheet, it is noted: "Deportation notice given."
According to Nguyen's affidavit, on September 16, 1995, Federal immigration ordered Nguyen be deported to Vietnam. The order was stayed, however, because of Federal policy not to deport to Vietnam anyone who came to the United States before 1990.
The deportation order is not included in the record.
On November 3, 1995, the probation department filed with the District Court a notice of surrender and hearing alleging that Nguyen violated his probation due to being arrested on October 25, and November 2, 1995, and to failing to report to probation and to pay fees. A hearing took place on March 27, 1996, at which time Nguyen's probation was revoked. Nguyen's suspended sentence was reinstated, with execution of the sentence stayed until April 26, 1996. The docket indicates that the sentence was vacated on April 26, 1996.
No further entries appear on the docket until November 16, 2012, when Nguyen filed a motion to withdraw his guilty plea and for a new trial. Nguyen argued that his guilty plea was not voluntary, knowing, or intelligent and that he received ineffective assistance of counsel. After argument the motion judge, who was not the plea judge, denied Nguyen's motion on January 2, 2013.
The plea judge had retired.
Discussion. There is a presumption of regularity in plea proceedings where court records have been lawfully destroyed. See Commonwealth v. Lopez, 426 Mass. 657, 664-665 (1998); Commonwealth v. Grannum, 457 Mass. 128, 133 (2010). Where, as here, a defendant waits many years to challenge his guilty plea, the defendant bears the burden of presenting "a credible indicator that the presumptively proper guilty plea proceedings were constitutionally defective." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 50 (1997). The judge may decide the motion on affidavits alone, and "[t]he credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion." Id. at 48. The judge, however, "is not required to accept the defendant's self-serving affidavit, alleging constitutional defects in conclusory terms, as sufficient to satisfy the defendant's burden" of proof. Commonwealth v. Lopez, supra at 661. It is also in the judge's discretion whether to hold an evidentiary hearing on the motion. Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014).
We discern no abuse of discretion in the motion judge's denial of Nguyen's motion. Nguyen certainly knew of the immigration consequences of his plea when his probation was revoked in March, 1996, given that he was already under a deportation order at that time. Yet, he waited sixteen years to challenge his plea. Nguyen's "unexplained [sixteen] year delay in bringing his motion, despite his necessary possession of all relevant facts from the date he entered his guilty pleas . . . and [Nguyen]'s several opportunities to raise the issue while the plea transcript was still in existence," weigh heavily against Nguyen. Commonwealth v. Pingaro, supra at 52. Moreover, although Nguyen attempted to find his plea counsel, he failed to demonstrate any diligence or further efforts in trying to reconstruct the record. See id. at 52 n.16. He offered no evidence other than his own affidavit to support his claims.
Nguyen's plea counsel was administratively suspended from the practice of law in Massachusetts from at least September, 2012.
--------
Nguyen argues that his plea was not voluntary, knowing, or intelligent because there was no factual basis for guilt and because he did not receive immigration warnings. Apart from his own affidavit, Nguyen has not provided any evidence that the plea colloquy or the sufficiency of the facts was constitutionally defective. The record indicates that Nguyen participated in pretrial discovery, received notice of the trial date, waived his right to a jury trial, and still pleaded guilty after the plea judge rejected his proposed sentence and imposed a different sentence. Nguyen's claim that he was never shown and did not know whether the packets seized after his arrest were heroin is undermined by the pretrial conference report, which he signed, indicating that discovery had been completed and that he either had been permitted or would be permitted to inspect the drug analysis. As to the immigration warnings, there is a notation on the docket sheet that deportation notice was given to Nguyen. In addition, Nguyen's deportation order is not included in the record, and there is no evidence to suggest that the Federal policy of not deporting Vietnamese immigrants who came to the United States before 1990 will change. Nguyen offers no explanation for his lengthy delay in challenging his guilty plea, which he claimed resulted in a deportation order less than ten months later. Nguyen's arguments therefore fail.
Nguyen also argues that he received ineffective assistance of counsel because plea counsel recommended a plea for which there was no factual basis, failed to advise him that he could be deported as a result of pleading guilty, and failed to negotiate a more favorable outcome. For the reasons stated above, Nguyen also has failed to show that plea counsel was ineffective. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Order denying motion to withdraw guilty plea and for new trial affirmed.
By the Court (Berry, Kafker
& Carhart, JJ.),
Clerk Entered: October 20, 2014.