November 5, 2015
received and sworn to in the Dorchester Division of the
Boston Municipal Court Department on April 17, 2007.
review by this court, 466 Mass. 422 (2013), further
proceedings on a motion to vacate, filed on January 12, 2012,
were had before James W. Coffey, J.
Supreme Judicial Court granted an application for direct
vacating guilty plea and granting new trial affirmed.
M. Campbell, Assistant District Attorney, for the
Mannion Banwarth ( Wendy S. Wayne, Committee for Public
Counsel Services, with her) for the defendant.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
N.E.3d 553] Duffly, J.
Relying on advice from his attorney that a plea agreement
would not result in his deportation, the defendant, who is
not a citizen of the United States, pleaded guilty to one
count of possession of cocaine. The attorney's advice
was incorrect, and Federal authorities eventually placed the
defendant in a removal
proceeding. The defendant moved to vacate his guilty plea
pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001), claiming ineffective assistance of
counsel. That motion was denied, and we granted the
defendant's motion for direct appellate review.
concluded in Commonwealth v. Sylvain, 466
Mass. 422, 423-425, 995 N.E.2d 760 (2013) ( Sylvain
I ), that the defendant received ineffective assistance
from his plea counsel when counsel provided erroneous advice
that the defendant would not be subject to deportation if he
received a suspended sentence of less than one year in
connection with a guilty plea to possession of cocaine. In
our decision in Sylvain I, we noted that "
[a]lthough the defendant's affidavit [in support of the
motion to vacate was] highly suggestive that he would have
elected to go to trial but for his attorney's erroneous
advice," we could not make such a determination in the
absence of additional findings and credibility
determinations. Id. at 439. [46 N.E.3d 554] We
therefore remanded the matter to the Boston Municipal Court
Department " with instructions to provide findings
relating to the issue of prejudice and, if necessary, to hold
an additional evidentiary hearing." Id.
remand, the matter went before the judge who had accepted the
defendant's guilty plea, and who earlier had denied his
motion to vacate that plea. The judge found, based primarily
on the affidavits of the defendant and his plea counsel, that
" the defendant placed particular emphasis on the
immigration consequences." The judge stated that the
affidavits were supported by the fact that the defendant had
agreed to a disposition of eleven months' incarceration,
suspended for two years, indicating to the judge that
deportation was a " live issue" for the defendant
at the time of the plea. The Commonwealth appealed, and we
allowed the defendant's second application for direct
Commonwealth now contends that the judge erred in allowing
the defendant's motion to vacate his guilty plea because
the defendant failed to establish that he suffered prejudice
as a result of his counsel's ineffective representation.
The Commonwealth asserts also that the judge abused his
discretion by relying primarily on the affidavits in allowing
the defendant's motion. Because the ...