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Commonwealth v. LYS

Supreme Judicial Court of Massachusetts, Middlesex

November 19, 2018

COMMONWEALTH
v.
CHRIST O. LYS.

          Heard: September 5, 2018.

         Complaint 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.

         After 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 Commonwealth.

          John 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.

          LOWY, J.

         The 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.[1] 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.

         In his 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.[2] 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 opinion.[3]

         Background. 1.

         Plea.

         According 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 cocaine.

         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.

         As part 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.

         2. Motion ...


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