February 10, 2016
May 6, 2016.
Suffolk. Complaint received and sworn to in the East Boston
Division of the Boston Municipal Court Department on February
motion for a new trial, filed on March 18, 2015, was heard by
John E. McDonald, Jr., J.
Supreme Judicial Court granted an application for direct
Benjamin L. Falkner for the defendant.
John P. Zanini, Assistant District Attorney, for the
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.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
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
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. 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.
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. 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 ...