Argued June 3, 2015
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.
Present: Kafker, C.J., Rubin, & Milkey, JJ.
[38 N.E.3d 315] The defendant, Liston G. Henry, appeals from the denials of his motions to withdraw his 2004 and 2005 guilty pleas
to two violations of G. L. c. 209A abuse prevention orders and one count of witness intimidation. He claims to have received ineffective assistance of counsel regarding the immigration effects of pleading guilty to the charges, as he was not informed that the abuse prevention order violations were deportable offenses and because the defendant, then a lawful permanent resident of the United States, was consequently deported to Jamaica in 2013 and thereby separated from his extended family in the United States. We vacate the orders denying the defendant's motions to withdraw his pleas and remand for further factual findings on both motions.
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 DSS 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 G. L. c. 209A, § 7. Several days later the defendant was arraigned and entered a plea of not guilty. Counsel Phillip Deyoung was appointed on August 30, 2004, and after two continuances, the defendant admitted to sufficient facts on October 27, 2004. The defendant received a continuation without a finding and was put on administrative probation. The docket reflects that during the plea colloquy the judge administered the alien warnings required by G. L.
c. 278, § 29D.
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 [38 N.E.3d 316] 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 dating 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 defendant 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 G. L. c. 209A, § 7, and one count of intimidating a witness, in violation of G. L. c. 268, § 13B . On April 27, 2005, the defendant was arraigned, counsel Thomas Rugo was appointed, and the defendant entered pleas of not guilty. Four continuances later, the defendant changed his pleas to guilty on August 31, 2005, in a plea proceeding before a second judge, who imposed probationary sentences. Again, the required statutory alien warnings were provided to the defendant during the plea colloquy.
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 ...