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Commonwealth v. Mercado

Supreme Judicial Court of Massachusetts

April 6, 2016

Commonwealth
v.
Manuel Antonio Mercado

         Argued February 10, 2016

         Corrected May 6, 2016.

          Suffolk. Complaint received and sworn to in the East Boston Division of the Boston Municipal Court Department on February 26, 1990.

         A motion for a new trial, filed on March 18, 2015, was heard by John E. McDonald, Jr., J.

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

          Benjamin L. Falkner for the defendant.

          John P. Zanini, Assistant District Attorney, for the Commonwealth.

          Emma C. Winger, Jennifer Klein, & Wendy S. Wayne, Committee for Public Counsel Services, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

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

          OPINION

          Cordy, J.

          In Commonwealth v. Sylvain, 466 Mass. 422, 423-424, 995 N.E.2d 760 (2013), S. C., 473 Mass. 832, 46 N.E.3d 551 (2016), we affirmed our decision in Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011), that, under

Page 81

Massachusetts law, defense counsel's duty to provide noncitizen defendants with accurate advice regarding the deportation consequences of pleading guilty (or being convicted at trial), as articulated by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 360, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), was to be applied retroactively on collateral review.[1] See Clarke, supra at 31. We set the date of retroactivity at April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (IIRIRA), which, together with the enactment of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (effective Apr. 24, 1996) (AEDPA), made deportation for noncitizens convicted of certain criminal offenses virtually inevitable. See Padilla, supra at 363-364. See also Clarke, supra at 41.

         The offense to which the defendant pleaded guilty is possession of a class A substance (heroin) in violation of G. L. c. 94C, § 34. Possession of a class A substance is a controlled substance offense, and consequently, his deportation was virtually inevitable under the provisions of AEDPA.[2] His guilty plea was entered after the effective date of AEDPA, but before the effective date of IIRIRA. Thus, the first issue we must decide in this case is whether the retroactivity affirmed in the Sylvain case should extend back to the effective date of ...


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