In the case of Commonwealth v. Christ O. Lys’, the Massachusetts Supreme Judicial Court has to address what type of evidence is required at a motion hearing to warrant vacating a plea based on ineffective assistance of counsel.  In the defendant, filed a motion for new trial to vacate a plea after he was detained and put into removal proceedings.  

     The defendant was charged with selling marijuana and cocaine to an undercover police officer.  The defendant faced a 28 count indictment, but accepted a plea to three counts of distribution of marijuana.  The defendant filed a motion for new trial based on his trial counsel’s failure to provide him with the immigration consequences of his plea.  

The defendant filed an affidavit stating that the lawyer did not advise him of immigration impact of the plea.  The motion judge found that the plea counsel did not testify or provide an affidavit; accordingly, the motion judge stated that he must give the affidavit of the defendant full credit given the lack of evidence.  

The motion judge denied the motion finding that the deficient performance did not prejudice the defendant.  The Court stated that it did not find special circumstances suggesting that the defendant would have placed particular emphasis on the immigration consequences of the plea.  

Motion for New Trial 

A defendant may make a new trial for at any time.  Rule 30(b) states:  

A motion for new trial may be granted if it appears that justice may not be done.  On a motion to vacate a plea for immigration consequences, typically, the defense will argue that the counsel was ineffective for failing to provide advice regarding the immigration consequences of the plea.  

Under Massachusetts Rule 30(c)(3), a judge hearing a motion for new trial must first decide whether the defendant’s motion and affidavit presents a substantial issue.  In making this determination, the judge shall consider the seriousness of the issue and the adequacy of the defendant’s showing on the affidavit.  The standard to raise to the level of requiring a hearing is that the affidavit and the motion contain sufficient credible information to cast doubt on the issue.  

What is need to prove Ineffective Assistance of Counsel based on defective advice on immigration consequences 

1. A defendant must show deficient performance 
2. That the defendant was prejudiced by the deficient performance

In this case, the judge found that the lack of affidavit from trial counsel meant that he should credit the affidavit of the defendant.  The SJC held that the absence of an affidavit did not require the judge to credit the defendant’s affidavit; the court remanded the case to the judge for further findings in light of its ruling.  

What is needed to establish Prejudice 

To show prejudice when seeking to withdraw a guilty plea on the grounds of ineffective assistance of counsel, a defendant must provide sufficient credible facts to demonstrate a reasonable probability that a reasonable person in the defendant’s circumstances would have done to trial if given constitutionally effective advice.  The defendant must state that in the affidavit. 

To prove that it would have been rational, a defendant must bear the substantial burden of showing:  

1. An Available substantial ground of defense that the defendant would have pursued if given proper advice about the plea’s dire immigration consequences; 
2. A reasonable probability that the defendant could have negotiated a better plea bargain that did not include the dire consequences, or 
3. Special circumstances supporting the conclusion that the defendant placed or should have placed particular emphasis on the immigration consequences in deciding whether to plea guilty.  

A defendant must establish one of these factors set forth in Commonwealth v. Clarke, 460 Mass. 30 (2011).  When that occurs, the Court moves to the next step of the inquiry, which is whether under the totality of circumstances, there is a reasonable probability that a reasonable person isn’t eh defendant’s circumstances would have gone to trial if a given constitutionally effective advice.  

In the case, the judge did not find any of the Clarke factors, but did not articulate a reason, so the SJC remanded the case back to the judge to make more detailed findings.  

What should a judge consider when assessing the Special Circumstances element of the Clarke case

    The judge should consider all of the facts and circumstances that the defendant placed or would have placed particular emphasis on immigration consequences in deciding whether the plead guilty.  The Court emphasized factors that help show special circumstances:  

1. Time the defendant was in the country; 
2. Employment in the area 
3. Family in the country 

4.  Dependence on family in the United States 

5.  Children United States Citizens

The SJC reviewing the circumstances that the defendant, Christ Lys listed, stated that it would be an abuse of discretion to find that those circumstances did not satisfy the special circumstances element of the test. To read the Christ Lys case click here.

The Court commented that at the time of the plea, Haitian nationals were granted temporary protective status as a result of the Earthquake.  The SJC stressed that even a small probability of success at trial may be worth the risk to avoid the immigration consequences for some defendants.  

This decision is very helpful in listing the factors the court will consider in vacating a pleas based on failure to provide immigration advice.  Many defendants have received faulty immigration advice for old convictions as the law did not emphasis immigration consequences.  For old convictions, there is a better chance to vacate a plea for failure to provide an immigration warning.  In Court, all most all judges will provide an immigration warning at the time of the plea and it is written on the plea form used in district and superior courts.  However, it is still the obligation of the lawyer to detail those consequences to make sure a defendant makes an informed decision to accept a plea agreement.  

If you have questions about the immigration consequences of a criminal case like a domestic assault and battery or other criminal charge, feel free to contact our office.  To learn more about Massachusetts Criminal Law visit our Facebook page.