Supreme Judicial Court of Massachusetts, Middlesex
Heard: September 5, 2018.
received and sworn to in the Marlborough Division of the
District Court Department on January 18, 2012. A motion for a
new trial was heard by Robert G. Harbour, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Patrick N. Long for the defendant.
Gabriel Pell, Assistant District Attorney, for the
P. Zanini, Assistant District Attorney, for District Attorney
for the Berkshire District & others, amici curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
defendant pleaded guilty in the District Court to violating
multiple controlled substances laws. He was a lawful
permanent resident who had emigrated from Haiti, and his plea
rendered him deportable. The Federal government detained the
defendant and initiated deportation proceedings against him.
The defendant then filed a motion for a new trial pursuant to
Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501
(2001), arguing that he had received ineffective assistance
of counsel. The defendant claimed, inter alia, that he would
not have pleaded guilty if his counsel had properly advised
him about the plea's immigration consequences. The motion
judge, who was also the plea judge, denied the motion after a
nonevidentiary hearing. The defendant appealed, and the
Appeals Court affirmed. Commonwealth v. Lys, 91
Mass.App.Ct. 718, 726 (2017). We allowed the defendant's
application for further appellate review.
written decision, the judge found that plea counsel's
performance was constitutionally deficient but that the
deficient performance did not prejudice the defendant. The
Commonwealth now contends that the judge's finding of
deficient performance was erroneous. The defendant contends that
the judge erroneously found a lack of prejudice. We do not
reach the merits of either issue. Rather, we conclude that
the judge (1) might have failed to recognize his discretion
to credit or discredit the defendant's affidavits as they
pertained to plea counsel's allegedly deficient
performance, even in the absence of an affidavit from plea
counsel; and (2) failed to make factual findings about
whether special circumstances relevant to the prejudice
inquiry existed. Therefore, we vacate the denial of the
motion for a new trial and remand the case to the District
Court for proceedings consistent with this
to the prosecutor's summary of the Commonwealth's
allegations at the plea hearing and other undisputed record
materials, the defendant sold marijuana and cocaine to an
undercover police officer on various occasions, often in a
school zone; he offered to sell marijuana and cocaine to the
same undercover officer multiple times; and he conspired to
violate controlled substances laws when he distributed the
defendant faced a twenty-eight-count complaint. He ultimately
pleaded guilty to three counts of distributing marijuana, G.
L. c. 94C, § 32C (a.); two counts of distributing
cocaine, G. L. c. 94C, § 32A (a.), as amended through
St. 2010, c. 256, § 68; two counts of conspiring to
violate controlled substances laws, G. L. c. 274, § 7;
thirteen counts of attempting to distribute a class D
substance, G. L. c. 274, § 6; and two counts of
attempting to distribute a class B substance, G. L. c. 274,
§ 6. The judge sentenced the defendant to eighteen
months in a house of correction and a term of probation.
of the plea, the Commonwealth entered nolle prosequis with
respect to four counts of violating a controlled substances
law near a school, G. L. c. 94C, § 32J, as amended
through St. 2010, c. 256, § 72; and dismissed two counts
of possessing cocaine, G. L. c. 94C, § 34, as amended
through St. 2008, c. 387, § 5. Each school zone charge
would have carried a mandatory minimum sentence of two years
in a jail or house of correction, from and after the
defendant's sentences on the underlying drug crimes.