Commonwealth v. Lys, AC 16-P-39

Christ O. Lys, a lawful permanent resident from Haiti, pleaded guilty in District Court (Oct 30, 2012) to multiple counts of distribution and attempted distribution of controlled substances; sentenced to 18 months in a house of correction and 2 years probation.
Lys filed a Mass.R.Crim.P. 30(b) motion for a new trial alleging ineffective assistance of counsel because plea counsel did not advise him that his plea would result in mandatory deportation.
The motion judge (also the plea judge) credited Lys’s affidavit that counsel failed to advise him of deportation consequences but denied relief for lack of prejudice.
The Commonwealth did not dispute the judge’s factual finding that counsel failed to advise Lys about immigration consequences, but opposed relief on Saferian prejudice grounds.
Lys argued prejudice by claiming (a) uninvestigated defenses (confidential informant identity; Hinton lab issues), (b) possibility of a more favorable plea, and (c) "special circumstances" (mental health diagnosis, limited language skills, family loss) that would have led him to reject the plea if warned.

Issue	Lys's Argument	Commonwealth's Argument	Held
Whether counsel’s failure to advise about deportation satisfied Saferian performance prong	Counsel failed to advise of clear, dire immigration consequence so representation was deficient	Commonwealth conceded deficiency for purposes of analysis	Deficiency established under Padilla and Saferian (performance prong satisfied)
Whether Lys proved prejudice under Saferian (would have rejected plea)	Counsel’s failures meant Lys had substantial defenses, could obtain better plea, or had special circumstances making deportation determinative	Evidence failed to show a substantial defense, realistic different plea, or special circumstances existing at plea time	Prejudice not proven; motion denied
Whether defendant’s affidavit alone must be credited in absence of counsel affidavit	Lys relied on his affidavit asserting no advice	Commonwealth objected; no plea counsel affidavit was submitted	Court: judge should not automatically credit defendant’s affidavit; absence of counsel affidavit is a negative credibility factor and an evidentiary hearing may be required if affidavit casts sufficient doubt
Whether Lys’s claimed defenses (informant identity, Hinton lab) were substantial	These would undermine conviction or testing reliability	Transactions were with undercover officer, witnessed by others; drugs not tested at implicated lab; claims speculative	Claims not substantial; do not establish prejudice

Commonwealth v. Saferian, 366 Mass. 89 (1974) (two-part ineffective-assistance test: performance and prejudice)
Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise of clear, direct immigration consequences of a plea)
Commonwealth v. DeJesus, 468 Mass. 174 (2014) (application of Padilla and relevance of special circumstances)
Commonwealth v. Clarke, 460 Mass. 30 (2011) (prejudice requires reasonable probability defendant would have gone to trial)
Commonwealth v. Lavrinenko, 473 Mass. 42 (2015) (refugee status can be a special circumstance relevant to prejudice)
Commonwealth v. Sylvain, 466 Mass. 422 (2013) (Padilla obligations under state constitutional law)