COMMONWEALTH VS. LISTON G. HENRY (and a companion case¹).
No. 13-P-894.
Appellate Court of Massachusetts
October 2, 2015
88 Mass. App. Ct. 446 (2015)
KAFKER, C.J., RUBIN, & MILKEY, JJ.
Barnstable. June 3, 2015. - October 2, 2015.
Remand was required of the denials by two District Court judges of a criminal defendant‘s motions to withdraw his pleas of guilty to, inter alia, violations of abuse prevention orders, where, in both cases, counsel was obligated to convey that deportation would be practically inevitable as a result of pleading guilty to such charges, and the judges’ findings did not address whether counsel so informed the defendant [451-455]; and where further factual development was required to evaluate the defendant‘s family circumstances in determining whether he demonstrated prejudice in support of his ineffective assistance claims [455-457].
COMPLAINT received and sworn to in the Barnstable Division of the District Court Department on July 29, 2004
A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by H. Gregory Williams, J., and a motion for reconsideration was heard by him.
COMPLAINT received and sworn to in the Barnstable Division of the District Court Department on March 17, 2005.
A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by Joan E. Lynch, J., and a motion for reconsideration also was considered by her.
Maurice A. Reidy, III, for the defendant.
Elizabeth Anne Sweeney, Assistant District Attorney, for the Commonwealth.
KAFKER, C.J. The defendant, Liston G. Henry, appeals from the denials of his motions to withdrаw his 2004 and 2005 guilty pleas1
1. Background. According to the application for the first complaint, on July 29, 2004, Yarmouth police Officer Sean Brewer was dispatched to the home of Robin Edwards. Edwards reported that she had an active restraining order against the defendant, who is her former boy friend and the father of her son. The restraining order in question, which included a no-contact provision, had been issued from the Probate and Family Court and served in-hand on the defendant the previous day, July 28, 2004. Edwards informed Officer Brewer that at 9:42 that morning (July 29) she received a telephone call. She stated that when she answered the call, the defendant was on the telephone and yelled at her for taking away his visitation rights with their son, stated that he was going to contact the Department of Social Services (DSS)2 to have them take their son away from her, and concluded that if DSS did not do so then he would, and then “she would get what was coming to her.” At that point, Edwards hung up the telephone.
As a result of this incident, a complaint issued from the District Court later that day, charging the defendant with one count of violating an abuse prevention order, in violation of
According to the application for the second complaint against the defendant, approximately five months later, on March 12, 2005, at 10:50 P.M., Edwards heard knocking at the rear door of her residence. She opened the door and the defendant entered the house in violation of another abuse prevention order, which required the defendant to leave and stay away from the premises. Upon entry, the defendant first stated that he had to use the bathroom. He then went on to tell Edwards that they would start dаting again, he would get her a ring, and they would get married. Edwards asked him to leave and said that her boy friend was upstairs. The defendant told her he would not exit the house until she made the boy friend leave. Edwards attempted to call the police, but the defendant grabbed the telephone and pulled the telephone cord from the wall. Edwards went to the upstairs bedroom and used her cellular telephone (cell phone) to call the police. After placing the call, Edwards went downstairs with her cell phone, which the defendаnt attempted to wrestle away from her. She received two scratches to her right forearm during the struggle.
On March 17, 2005, the District Court issued the second complaint against the defendant, charging him with one count of violating an abuse prevention order, in violation of
The defendant is a Jamaican citizen and at the times of both plea proceedings was a lawful permanent resident of the United States. As a consequence of his guilty pleas and convictions, on June 10, 2010, the defendant received a notice to appear in removal proceedings before a United States immigration judge, and was placed in custody on December 4, 2010. The defendant appeared at four master‘s hearings; three continuances were granted, but on March 1, 2013, he was ordered removed to Jamaica. After appealing the order to the Board of Immigration Appeals and to the United States Court of Appeals for the First Circuit, the defendant was removed on December 19, 2013. The defendant‘s
Prior to his removal, on February 28, 2013, the defendant filed motions to withdraw his 2004 and 2005 pleas. The motions, identical in each case, were supported by affidavits of the defendant and Edwards. The defendant‘s affidavit averred that Edwards had falsified her allegations amid “crack” cocaine addiction and conflict over their child, that neither of the defendant‘s plea attorneys asked him if he was a United States citizen or told him he could face deportation for admitting to the charges,4 and that had he been so advised he instead would have insisted on going to trial. In Edwards‘s affidavit, she recanted her accusations against the defendant. Edwards stated that she suffers from posttraumatic stress disorder due to abuse from her former husband, and that during the time period in question she was addicted to cocaine. She indicated that she has been sober since June 14, 2010, and wishes to make amends for her false accusations against the defendant, which she fabricated both to prevent the defendant from interfering with her drug use and to retaliate against him for seeing another woman.
Originally the defendant‘s motions were denied in March of 2013 without a hearing, on the basis that Padilla v. Kentucky, 559 U.S. 356, 366, 373-374 (2010), does not apply retroactively to cases on collateral review in Federal court. See Chaidez v. United States, 133 S. Ct. 1103, 1105, 1111 (2013). (The original rulings were in error, as Padilla does apply retroactively under Massachusetts law. See Commonwealth v. Clarke, 460 Mass. 30, 45 [2011]; Commonwealth v. Sylvain, 466 Mass. 422, 423-424 [2013].) After the defendant‘s motion to reconsider was denied, the defendant filed a notice of appeal for both the 2004 and 2005 matters on April 29, 2013. We then granted the defendant‘s motion to stay the appeal on November 25, 2013, to allow him to present in the trial court a renewed motion to reconsider his motions to withdraw his pleas. The renewed motion, filed on February 14, 2014, was supported by additional affidavits, of both plea counsel. According to attorney Deyoung‘s affidavit, Deyoung‘s case file for the defendant has been destroyed and Deyoung has no memory of his representation of the defendant
On February 24, 2014, the plea judge on the 2005 case engaged in reconsideration and, reviewing the entire case file but withоut holding an evidentiary hearing, again denied the motion to withdraw the plea. She ruled as follows:
“In the context of a guilty plea, the defendant bears the burden of proving that he had an ‘available, substantial ground of defence.’ Commonwealth v. Saferian, 366 Mass. 89[, 96] (1974). In the instant case, the Commonwealth presented a compelling case in which the defendant entered the victim‘s home in violation of a restraining order, wrestled one phone away from her when she attempted to call police and followed her upstairs when she tried to use a second cell phone. Police responded to the home shortly after the event. The Court finds that the affidavits signed by the victim, eight years after the event, and the defendant, only after he became the subject of deportation proceedings, lack credibility.”
As to the 2004 case, the judge who had taken the plea also undertook reconsideration, and ordered that an evidentiary hearing be scheduled. During this hearing, Deyoung testified that although he had no recollection of his representation of the defendant, his standard praсtice was that, as the judge found, “whenever he suspected any potential immigration consequences . . . might befall a defendant, he would recommend that that client communicate with an immigration attorney.”5 On June 23, 2014, the judge denied the motion to withdraw the plea as to the 2004 case. He contrasted the immigration effects of violations of
“‘[T]here undoubtedly will be situations in which the deportation [or other immigration] consequences of a particular plea are unclear or uncertain, and counsel‘s duty more limited’ [than in a drug case where the consequences are clear and certain]. [Commonwealth v.] DeJesus, [468 Mass. 174,]
Regarding the prejudice prong of the Saferian standard, the judge stated, “[c]oncluding that any of [the possible means of establishing prejudice described in Commonwealth v. DeJesus, supra at 183], were it necessary to reach them, had been demonstrated would have been a stretch for this Court.”
Subsequently we vacated our previous stay, and we now consider the defendant‘s consolidated appeals from these final orders denying his motions to withdraw his pleas.
2. Discussion. A motion to withdraw a guilty plea is treated as a motion for a new trial. Commonwealth v. DeJesus, 468 Mass. at 178. In accordance with
The defendant argues that his pleas to the 2004 and 2005 charges should be vacated and he should be granted new trials because (1) he was denied effective assistance of counsel due to the failures of both plea counsel to fully inform him of the immigration consequences of his pleas, (2) his pleas were not knowing and voluntary due to the faulty advice of counsеl, and (3) justice was not done as demonstrated by the victim‘s recantation of her allegations. For the reasons that follow, we conclude that in order to decide the defendant‘s rule 30(b) motions, the judges were required to make additional findings of fact that were both necessary to resolve the legal issues raised therein and not addressed in the judges’ previous fact finding.
a. Ineffective assistance claims. “Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of
i. Performance prong. The defendant asserts that counsel for both his 2004 and 2005 guilty pleas never asked whether he was a United States citizen or informed him that pleading to the
In Padilla v. Kentucky, the United States Supreme Court established that defense counsel must apprise a client of the immigratiоn consequences of a plea when such consequences can be “easily determined” via reference to “succinct, clear, and explicit” statutory language. 559 U.S. at 368. Here, at the time of the plea proceedings,
Each of the defendant‘s attorneys “could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal” for these violations of the protection orders. Padilla v. Kentucky, supra at 368. As such, “[c]ounsel therefore was obligated to provide to his client, in language that the client could comprehend, the information that presumptively mandatory deportation would have been the legal consequence of pleading guilty. Stated differently, counsel needed to convey that, if Federal authorities apprehended the defendant, deportation would be practically inevitable.” Commonwealth v. DeJesus, 468 Mass. at 181.8
Concluding that the law regarding the immigration consequences of the defendant‘s pleas was “succinct and straightforward,” Padilla v. Kentucky, 559 U.S. at 369,9 we turn next to
The judge handling the plea withdrawal motion on the 2004 conviction was under the mistaken impression that the immigration consequences for the violation of the abuse prevention order were uncertain and there was no need to advise the defendant that the violation of the
As for the motion to withdraw the 2005 plea, the judge bypassed the performance prong of the Saferian analysis entirely. Instead she moved directly into an inquiry whether the defendant had a substantial ground of defense, which the judge concluded he did not, finding the defendant‘s and the victim‘s affidavits
ii. Prejudice prong. “A showing that plea counsel‘s advice was constitutionally deficient does not alone entitle the defendant to relief, however; the defendant must also demonstrate prejudice.” Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246 (2015). In thе plea context, this requires the defendant to establish that “there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Commonwealth v. Clarke, 460 Mass. at 47, quoting from Hill v. Lockhart, 474 U.S. 52, 59 (1985). While the defendant has provided an affidavit to that effect, contrast Commonwealth v. Clarke, supra at 49, he must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. at 47 (citation omitted). The defendant has three avenues for satisfying this requirement: he must demonstrate that “(1) he had an ‘available, substantial ground of defence,’ Commonwealth v. Saferian, [366 Mass.] at 96, that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of ‘special circumstances’ that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty. Hill [v. Lockhart], supra at 60.” Commonwealth v. Clarke, 460 Mass. at 47-48 (footnote omitted).
To bolster his argument, the defendant asserts that (1) the evidence marshalled by the Commonwealth to substantiate the charges against him was not particularly strong, and (2) the defendant‘s family and history in the United States qualify as special circumstances that would have weighed heavily in the defendant‘s decision to go to trial if he had been adequately informed of the immigration ramifications of his pleas.10 Although the affidavits focused on the first rather than the second
argument, and both judges were disadvаntaged by poor development of the record on whether special circumstances were presented here, we conclude that a remand is nonetheless appropriate, especially given the emphasis by the Supreme Judicial Court on family circumstances in Commonwealth v. DeJesus, 468 Mass. at 184.
The judge hearing the defendant‘s plea withdrawal motion in the 2004 case stated without further elaboration that it “would have been a stretch” to conclude that the defendant had met his burden to demonstrate prejudice. We conclude that mоre specific and definitive findings are required here, especially given that the defendant‘s children and grandchildren live in the United States. See Commonwealth v. Sylvain, 466 Mass. at 439. Depending on the defendant‘s relationships with those children and grandchildren, which is not developed in the record, there may have been special circumstances present that would have justified going to trial. See Commonwealth v. DeJesus, 468 Mass. at 184 (“defendant ‘had a lot to lose if he were to be deported’ because he had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area“). See also Padilla v. Kentucky, 559 U.S. at 368 (for deportable defendant, “right to remain in the United States may be more important to [him] than any potential jail sentence” [citation omitted]). Contrast Commonwealth v. Clarke, 460 Mass. at 48 (defendant primarily concerned with pleading to secure dismissal of more serious charges, regardless of immigration consequences; there was substantial evidence stacked against the defendant, which would not have made a lesser plea possible).
Similar factual development is required for thе plea withdrawal motion in the 2005 case. Although the judge stated that the Commonwealth‘s evidence “presented a compelling case” in support of the defendant‘s convictions, and that neither the defendant‘s nor the victim‘s affidavit was credible, the judge did not address the nature and extent of the defendant‘s family ties in the United States and thus whether there were special circumstances that would have justified going to trial despite the strong case the judge found against him. See Commonwealth v. DeJesus, supra; Padilla v. Kentucky, supra.
In evaluating whether a defendant has demonstrated prejudiсe in support of his claim of ineffective assistance, “[e]ach case will,
b. Defendant‘s other claims. The defendant makes two additional claims on appeal: first, that his pleas were not knowingly and voluntarily made, and second, that new trials should be granted in the interest of justice. However, the prospects for these claims largely rise and fall on the facts of the ineffective аssistance claims. As such, they cannot be addressed until there are further findings of fact from the motion judges.
3. Conclusion. For the reasons articulated above, we vacate the orders denying the defendant‘s motions to vacate his guilty pleas and remand the defendant‘s cases to the District Court with instructions to make further findings relating to the issues of performance by counsel and any prejudice arising therefrom and, if necessary, to hold additional evidentiary hearings on the defendant‘s motions for such purposes. See Commonwealth v. Sylvain, 466 Mass. at 439.
So ordered.