49 N.E.3d 694
Mass. App. Ct.2016Background
- In 2013 defendant admitted facts sufficient to prove three shoplifting counts; judge continued the cases without findings and imposed probation conditions.
- After a new shoplifting offense and a probation violation finding, guilty findings were entered on the three underlying counts and defendant was sentenced to ten days' incarceration.
- Defendant moved for a new trial seeking to withdraw his pleas, arguing plea counsel was constitutionally ineffective for failing to advise accurately about immigration consequences (Padilla claim).
- Record showed counsel and defendant signed a waiver form and discussed potential immigration consequences; defendant argued counsel failed to advise he would presumptively be deported.
- The Commonwealth conceded two-or-more crimes involving moral turpitude can render an alien deportable, but whether shoplifting is a CIMT was unsettled; regardless, defendant is a lawful permanent resident covered by the 2008 U.S.-Vietnam repatriation agreement that precludes deportation to Vietnam for arrivals before 1995.
- Because defendant could not be deported to Vietnam under the 2008 pact, the premise of his Padilla-based ineffectiveness claim failed and the judge properly denied the motion and reconsideration without an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea counsel was ineffective for failing to advise defendant he presumptively would be deported | Commonwealth: counsel discussed immigration consequences; defendant protected from deportation by 2008 pact | Nguyen: counsel did not advise that his pleas would presumptively cause deportation (Padilla violation) | Denied — plea counsel warned of immigration consequences; defendant cannot show presumptive deportation due to 2008 pact |
| Whether shoplifting is a crime involving moral turpitude (CIMT) relevant to deportation | Commonwealth: question unsettled; not necessary to resolve because of repatriation pact | Nguyen: shoplifting is a CIMT, making him deportable on multiple convictions | Not resolved — court assumed arguendo but concluded deportation not presumptive because of pact |
| Whether defendant met prejudice requirement for ineffective-assistance (would have gone to trial) | Commonwealth: defendant must show reasonable probability he would have rejected plea | Nguyen: claims advice would have changed decision to plead | Court noted burden exists and did not find defendant met it; underlying premise failed due to non-deportability |
| Whether denial of evidentiary hearing and reconsideration was proper | Commonwealth: record sufficient to deny hearing; plea form and affidavit support denial | Nguyen: contested facts warranted an evidentiary hearing | Affirmed — record established warning and legal inability to deport, so no hearing required |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (duty to advise about immigration consequences of plea)
- Commonwealth v. DeJesus, 468 Mass. 174 (Padilla-related standards under Massachusetts law)
- Zadvydas v. Davis, 533 U.S. 678 (limits on indefinite detention of removable aliens)
- Mejia v. Holder, 756 F.3d 64 (discussing whether particular offenses constitute CIMTs)
- Commonwealth v. Balthazar, 86 Mass. App. Ct. 438 (Mass. App. Ct. discussion on shoplifting as CIMT)
- Commonwealth v. Cano, 87 Mass. App. Ct. 238 (alternative view on shoplifting and CIMT)
- Commonwealth v. Saferian, 366 Mass. 89 (standard on withdrawing plea based on counsel error)
- Commonwealth v. Clarke, 460 Mass. 30 (prejudice standard for guilty-plea ineffective-assistance claims)
- Hill v. Lockhart, 474 U.S. 52 ("reasonable probability" prejudice standard for plea-stage counsel errors)