Commonwealth v. Gordon
82 Mass. App. Ct. 389
Mass. App. Ct.2012Background
- In 2008, Gordon pleaded guilty to five counts including firearms offenses and ABPO, receiving concurrent and consecutive sentences.
- ABPO conviction carried a one-year sentence on Count 4, making deportation virtually certain for a noncitizen.
- Immigration warnings were given during plea colloquy, and the plea form acknowledged potential deportation consequences.
- HSI issued a notice to appear in 2009 based on the ABPO conviction; other charges were not cited in the notice.
- In 2010, Gordon moved to vacate the plea under Padilla, arguing plea counsel misadvised about immigration consequences.
- The trial judge granted reconsideration without an evidentiary hearing, then the Commonwealth sought reconsideration; the court remanded for proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an evidentiary hearing was required on Padilla claim | Gordon asserts serious factual disputes; affidavits raise substantial issues. | Commonwealth argues affidavits suffice to resolve without a hearing. | Yes; an evidentiary hearing is required to resolve disputed facts. |
| Whether plea counsel’s advice regarding ABPO breached Padilla | Advice misled about deportation risk due to ABPO; prejudice shown. | Counsel warned of immigration risk in general; the issue was not plainly clear. | Prejudice shown; misadvice regarding ABPO affected deportation risk. |
| Whether the ABPO sentence could have been bargained to avoid removal consequences | A different plea or sentence could have altered cancellation eligibility and deportation risk. | No viable alternative plea would have materially changed outcomes. | There is a plausible prejudice arising from the possibility of a different plea or sentence on ABPO. |
| Whether the court should remand for an evidentiary hearing on ambiguities in affidavits | Affidavits lack detail on the exact discussions and rationale behind counsel’s advice. | Record adequate to decide; no further hearing needed if issues are legal. | Yes; remand for an evidentiary hearing to address gaps and ambiguities. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation consequences must be considered in plea advice; retroactivity applies)
- Commonwealth v. Clarke, 460 Mass. 30 (2011) (immigration consequences and prejudice standards in Saferian context)
- Commonwealth v. Saferian, 366 Mass. 89 (1974) (standard for ineffective assistance and prejudice in plea withdrawal)
- Commonwealth v. Stewart, 383 Mass. 253 (1981) (preference for evidentiary hearings when substantial issues are raised)
- Commonwealth v. Saarela, 15 Mass. App. Ct. 403 (1983) (remand when affidavits leave key issues unresolved)
- Commonwealth v. Martinez, 81 Mass. App. Ct. 595 (2012) (factors for prejudice and potential relief in immigration-related claims)
- Commonwealth v. Companonio, 420 Mass. 1003 (1995) (evidentiary hearing considerations when affidavits are incomplete)