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Commonwealth v. Lys

Appeals Court of Massachusetts, Middlesex

June 28, 2017

COMMONWEALTH
v.
CHRIST O. LYS.

          Heard: December 8, 2016.

         Controlled 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.

         Complaint received and sworn to in the Marlborough Division of the District Court Department on January 13, 2012.

         A motion for a new trial was heard by Robert G. Harbour, J.

          Patrick Long for the defendant.

          KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.

          Present: Green, Agnes, & Desmond, JJ.

          AGNES, J.

         The 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.[1] 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 trial counsel.

         Background.

         On 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.

         The 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.[2] 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.

         Discussion.

         1. Standa ...


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