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Commonwealth v. Cano

Appeals Court of Massachusetts, Middlesex

April 3, 2015

Commonwealth
v.
Hildebrando Cano

Argued October 8, 2014.

Complaints received and sworn to in the Lowell Division of the District Court Department on January 8, 1988; June 22, 1992; August 23, 1996; and June 2, 2006.

Motions for a new trial, filed on March 7, 2013, were considered by Neil J. Walker, J.

Page 239

Thomas Stylianos, Jr., for the defendant.

Emily Walsh, Assistant District Attorney, for the Commonwealth.

Present: Green, Rubin, & Agnes, JJ.

OPINION

[28 N.E.3d 493] Green, J.

The defendant appeals from orders of the District Court, denying his motions for new trial which sought to vacate guilty pleas[1] entered on various charges. The defendant contends that his motions raised substantial issues, warranting evidentiary hearings. Specifically, he claims that his plea counsel failed to advise him of the immigration consequences of his pleas, and that counsel's constitutionally deficient performance in that respect caused him prejudice. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Separately, he asserts that he lacked the mental competency required to enter each of the pleas knowingly and voluntarily. We discern no error of law or abuse of discretion in the motion judge's rejection of the latter claim, but agree that the defendant's motion directed to his 1997 guilty plea to the charge of assault by means of a dangerous weapon raised issues sufficient to warrant an evidentiary hearing. We accordingly vacate the order denying the defendant's motion for new trial on the 1997 guilty pleas only as to the charge of assault by means of a dangerous weapon and remand the matter for further proceedings. We otherwise affirm that order and the remaining orders.

Background.

The defendant's new trial motions sought to vacate guilty pleas he entered on five charges, on four separate occasions beginning in 1988 and ending in 2006. On January 8, 1988, the defendant pleaded guilty to a charge of shoplifting (1988 plea), for which he was ordered to pay a fifty dollar fine. On September 3, 1992, the defendant pleaded guilty to a charge of shoplifting (third or subsequent offense) (1992 plea), and was sentenced to one year of probation. On May 21, 1997, the defendant pleaded guilty to a charge of assault by means of a dangerous weapon and a charge of threatening to commit a crime (1997 pleas), and was again sentenced to one year of probation. Finally, on December 14, 2006, the defendant pleaded guilty to a charge of violating an abuse prevention order (2006 plea), and was sentenced to probation for a period ending on November 8, 2007. The dockets for the 1997 pleas and the 2006 plea reflect that the judges who accepted those pleas administered the alien

Page 240

warnings required by G. L. c. 278, § 29D.[2]

[28 N.E.3d 494] By letter dated March 7, 2013, the defendant filed motions for new trial in which he sought to withdraw his guilty pleas in all four of the above-described cases. He asserted ineffective assistance of counsel under Padillav.Kentucky, supra, as a ground for relief in his motions directed to the 1992 plea, the 1997 pleas, and the 2006 plea.[3] As an independent ground applicable to all five pleas, he asserted that he was not mentally competent to plead guilty on any of the four occasions. A judge of the District Court (who also was the plea judge for the first four of the five pleas challenged by the defendant) denied all four motions without a hearing and without making any ...


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