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Commonwealth v. Sylvain

Supreme Judicial Court of Massachusetts, Suffolk

March 14, 2016

Commonwealth
v.
Kempess Sylvain

         Argued November 5, 2015

         Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007.

         Following 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Order vacating guilty plea and granting new trial affirmed.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Laura Mannion Banwarth ( Wendy S. Wayne, Committee for Public Counsel Services, with her) for the defendant.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

          [46 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.[1] The attorney's advice was incorrect, and Federal authorities eventually placed the defendant in a removal

Page 833

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.

         We 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.

         On 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 appellate review.

         The 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 ...


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