38 N.E.3d 312
Mass. App. Ct.2015Background
- Liston G. Henry, a Jamaican citizen and lawful permanent resident, entered pleas in 2004 and 2005 to two violations of G. L. c. 209A (abuse prevention order violations) and one count of witness intimidation; statutory alien warnings were read at both plea colloquies.
- After the convictions, federal immigration authorities initiated removal proceedings; Henry was ordered removed in 2013 and deported to Jamaica on December 19, 2013, separating him from U.S.-resident family members.
- In February 2013 Henry moved to withdraw both guilty pleas, alleging plea counsel failed to advise him that the 209A violations were deportable offenses and that, had he known, he would have insisted on going to trial; the victim later submitted a recantation affidavit.
- Trial judges denied the motions: one judge held an evidentiary hearing on the 2004 plea but found counsel’s conduct not clearly deficient and prejudice not shown; the other judge denied the 2005 motion without addressing counsel performance, finding the affidavits not credible and the Commonwealth’s case strong.
- The Appeals Court concluded the judges’ factual findings were incomplete on both prongs of the Saferian ineffective-assistance inquiry (performance and prejudice) and vacated the denials, remanding for further findings or hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea counsel rendered ineffective assistance by failing to advise about deportation risk | Counsel did not ask citizenship status or advise that 209A offenses carry presumptively mandatory deportation; thus advice was deficient | Counsel either had no recollection or gave only general warnings and referrals to immigration counsel, which is insufficient when deportation is clear | Remanded — court held counsel was obliged under Padilla to inform the client when deportation was clear; further factfinding required on whether counsel in fact failed to give adequate advice |
| Whether Henry suffered prejudice from counsel's alleged deficient advice (Saferian/Hill standard) | Henry would have insisted on trial and had special circumstances (strong family ties) making deportation particularly consequential | Judges found Commonwealth’s evidence strong and affidavits unreliable, arguing prejudice not shown | Remanded — appellate court required additional findings about (a) available substantial defenses, (b) likelihood of an alternative plea, or (c) special circumstances (family ties) to assess prejudice |
| Whether the guilty pleas were knowing and voluntary given alleged faulty advice | Pleas were involuntary if counsel failed to explain deportation consequences | Commonwealth relied on plea colloquy and statutory alien warnings; argued affidavits lacked credibility | Remanded — resolution depends on further factfinding about counsel’s advice and the defendant’s decision calculus |
| Whether a new trial is warranted in the interests of justice based on victim recantation | Recantation undermines the convictions and supports new trials | Trial judges found recantation not credible and Commonwealth’s evidence compelling | Remanded — appellate court held additional findings on credibility and impact of recantation are necessary after resolving counsel/advice issues |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (explains counsel’s duty to advise about immigration consequences when consequences are clear)
- Commonwealth v. DeJesus, 468 Mass. 174 (applies Padilla in Massachusetts and describes when deportation is practically inevitable)
- Commonwealth v. Clarke, 460 Mass. 30 (discusses prejudice inquiry for plea-withdrawal claims involving immigration consequences)
- Commonwealth v. Sylvain, 466 Mass. 422 (remand required when factual development on prejudice and family ties is inadequate)
- Commonwealth v. Saferian, 366 Mass. 89 (establishes performance and prejudice standard for ineffective-assistance claims in plea context)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for guilty-plea ineffective-assistance claims requiring reasonable probability defendant would have gone to trial)
- Commonwealth v. Grannum, 457 Mass. 128 (treats admission to sufficient facts as equivalent to a guilty plea)