28 N.E.3d 491
Mass. App. Ct.2015Background
- Defendant Hildebrando Cano pleaded guilty or admitted sufficient facts on four occasions (1988 shoplifting; 1992 shoplifting — third/subsequent; 1997 assault by means of a dangerous weapon and threatening to commit a crime; 2006 violation of an abuse prevention order).
- Dockets for the 1997 and 2006 pleas show the judge administered statutory alien warnings; 1988 plea was pro se.
- In 2013 Cano filed motions for new trial seeking to withdraw all pleas, asserting (a) plea counsel failed to advise him of immigration consequences (Padilla claim) and (b) he lacked competency to plead knowingly and voluntarily.
- He submitted a psychologist’s report showing IQ of 56, limited adaptive skills, functional illiteracy, and vulnerability if deported to Colombia.
- The District Court denied all motions without an evidentiary hearing; Cano appealed. The Appeals Court affirmed denial as to all pleas except it vacated denial with respect to the 1997 assault plea and remanded for an evidentiary hearing on Padilla prejudice (special circumstances).
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Cano) | Held |
|---|---|---|---|
| Competency to plead | Plea judge observed defendant in court; no contemporaneous indication of incompetence | Dr. Condie’s report shows severe cognitive deficits undermining competency | No substantial issue shown; judge did not abuse discretion in denying competency-based relief (but defendant may introduce further evidence at remand) |
| Padilla claim re: 1997 assault plea | Counsel’s affidavit shows no recollection of advising re: immigration; Commonwealth does not dispute that two crimes involving moral turpitude would make defendant deportable | Counsel failed to advise that 1997 plea + prior 1992 shoplifting rendered him deportable; lack of advice was prejudicial given special hardship if deported | Vacated denial as to 1997 assault plea; counsel’s omission was constitutionally deficient and defendant raised substantial issue of prejudice (special circumstances) warranting an evidentiary hearing |
| Padilla claim re: 2006 abuse-prevention-order plea | Docket shows alien warnings were given; plea counsel’s affidavit silent on immigration advice; only defendant’s self-serving affidavit asserts counsel failed to advise | Counsel failed to inform of immigration consequences (would be deportable under separate provision) | No substantial issue shown as to 2006 plea; motion judge properly denied without hearing given lack of corroboration from counsel and credibility concerns |
| Ripeness/retroactivity of Padilla for earlier pleas | Padilla applies retroactively only to convictions after IIRIRA effective date (Apr. 1, 1997); some pleas predate that date | Claim pressed for 1997 and 2006 pleas; 1992 claim not pursued on appeal | Court applied Padilla/Clarke principles to 1997 plea (post-IIRIRA) and declined relief on other pleas except as remanded for hearing on 1997 assault plea |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about clear deportation consequences of a plea)
- Commonwealth v. Clarke, 460 Mass. 30 (2011) (applies Padilla; outlines prejudice showings for plea-withdrawal claims)
- Commonwealth v. Scott, 467 Mass. 336 (2014) (contemporaneous record must affirmatively show plea was intelligent and voluntary)
- Commonwealth v. Goodreau, 442 Mass. 341 (2004) (motion-for-new-trial procedure; when judge may deny without evidentiary hearing)
- Hill v. Lockhart, 474 U.S. 52 (1985) (standard for prejudice in ineffective-assistance-to-plea claims)