Heard: December 8, 2016.
Substances. Practice, Criminal, New trial,
Plea, Affidavit, Assistance of counsel. Constitutional
Law, Plea, Assistance of counsel. Due Process of
Law, Plea, Assistance of counsel. Alien.
received and sworn to in the Marlborough Division of the
District Court Department on January 13, 2012.
motion for a new trial was heard by Robert G.
Patrick Long for the defendant.
KerryAnne Kilcoyne, Assistant District Attorney, for the
Present: Green, Agnes, & Desmond, JJ.
defendant, Christ Lys, appeals from a decision by a judge of
the District Court, following a non-evidentiary hearing, to
deny his motion for a new trial. The defendant maintains that
his attorney was ineffective because he did not inform the
defendant that he would be deported as a consequence of
pleading guilty. The judge reasoned that although adequate
advice from plea counsel was lacking, thus satisfying the
first prong of the familiar two-part test for ineffective
assistance of counsel, see Commonwealth v. Saferian,
366 Mass. 89 (1974) (Saferian), the defendant was
not entitled to relief because he failed to establish that he
was prejudiced by the shortcomings of his attorney. Although
we affirm, we take this opportunity to clarify what framework
a judge should apply when faced with a defendant's
affidavit that is not accompanied by an affidavit of his
January 13, 2012, the defendant was charged in a twenty-eight
count complaint with three counts of distribution of a class
D substance (marijuana) in violation of G. L. c. 94C, §
32C(a); four counts of distribution of a drug within one
thousand feet of a school, in violation of G. L. c. 94C,
§ 32J; two counts of possession of a class B substance
(cocaine), in violation of G. L. c. 94C, § 34; two
counts of distribution of a class B substance (cocaine), in
violation of G. L. c. 94C, § 32A (c0; two counts of
conspiracy to violate controlled substances laws, in
violation of G. L. c. 274, § 7; and fifteen counts of
attempting to distribute cocaine and marijuana, in violation
of G. L. c. 274, § 6. On October 30, 2012, the defendant
pleaded guilty to three counts of marijuana distribution, two
counts of cocaine distribution, two counts of conspiracy, and
fifteen counts of attempting to distribute controlled
substances. The remaining charges were either dismissed or
nolle prossed by the prosecutor. The defendant was sentenced
to eighteen months in a house of correction and two years of
probation from and after the service of the committed portion
of the sentence.
defendant is a lawful permanent resident of the United States
who emigrated to the United States from Haiti when he was
seven years old. He filed a motion for a new trial, pursuant
to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501
(2001), accompanied by a supplemental affidavit. On June 8,
2015, the motion judge, who was also the plea judge, held a
non-evidentiary hearing on the motion. On June 15, 2015, the
judge credited the statement made by the defendant in his
affidavit that he was not advised at the time of his plea
that the plea carried with it mandatory deportation
consequences. The Commonwealth does not take issue with
the judge's determination that the defendant was not
properly advised of the deportation consequences of his plea
by his trial counsel. However, the judge denied the motion on
the grounds that the defendant failed to make a sufficient
showing of prejudice.