Heard: April 10, 2019.
received and sworn to in the Lynn Division of the District
Court Department on April 6 and 16, 2015.
motion for a new trial, filed on February 7, 2017, was heard
by Ellen Flatley, J.
R. Mello, Assistant District Attorney, for the Commonwealth.
Alex Hahn for the defendant.
defendant, Juan Lopez, an undocumented individual, pleaded
guilty after being advised by counsel (consistent with
Padilla v. Kentucky, 559 U.S. 356');">559 U.S. 356
) that doing so would result in the loss of his
then-pending removal proceedings in Federal immigration court
and thus deportation. In this appeal, we consider whether the
standard under Mass. R. Crim. P. 30, as appearing in 435
Mass. 1501 (2001) (rule 30), allowing a judge to order a new
trial when "justice may not have been done,"
permits a judge to vacate a guilty plea on the basis that the
defendant regrets his decision now that the warned of
deportation has come to pass. We hold that it does not.
2014, the defendant received a notice to appear (NTA) from
immigration authorities, which officially commenced the
process of deporting him to his native Guatemala. He had
entered the United States without authorization in 1998, at
age nineteen. At the time he received the NTA, he was married
and had two sons, each a United States citizen. He retained
immigration counsel and applied for cancellation of removal
-- a procedure that, if allowed, would permit him to stay in
the United States in light of the length of his residency and
his family circumstances. Significant to the issue on appeal,
cancellation of removal is not available to an individual who
has committed a "crime involving moral turpitude."
So far as the record shows and as the defendant acknowledges,
cancellation of removal represented the defendant's only
hope to avoid deportation.
his immigration case was pending, in April 2015, the
defendant drove his vehicle at a high rate of speed and
crashed it into a truck before plowing it into a guardrail in
Lynn. His eight year old son, who was unrestrained in the
back seat of the vehicle, was propelled forward into the
windshield,  cutting his face and lip and losing a
tooth. Several empty containers of alcohol were found in bags
and strewn on the floor of the defendant's vehicle. The
defendant was unsteady on his feet, his eyes were glassy, and
a strong odor of alcohol emanated from his mouth. During
field sobriety assessments, he swayed noticeably from side to
side, missed heel to toe, turned incorrectly, and raised his
arms for balance in contravention of the instructions he
received. Following his arrest, he consented to a
breathalyzer test, which showed a 0.28 percent blood alcohol
level. The defendant was charged with (1) operating a vehicle
under the influence of alcohol (OUI), pursuant to G. L. c.
90, § 24 (1) (a.) (1); (2) operating with a suspended
license, subsequent offense, pursuant to G. L. c. 90, §
23; (3) reckless endangerment of a child (reckless
endangerment), pursuant to G. L. c. 265, § 13L; (4)
child endangerment while operating under the influence (OUI
endangerment), pursuant to G. L. c. 90, § 24V; and (5)
three civil motor vehicle infractions.
the course of representing the defendant, plea counsel
learned that he was in the United States without
authorization. With the assistance of an interpreter,
plea counsel told the defendant that his plea would
"trigger dire immigration consequences." Plea
counsel also learned of the pending removal proceeding in
which the defendant had applied for cancellation of removal.
consulting with the immigration unit of Committee for Public
Counsel Services (CPCS) for advice concerning the effect of
the defendant's pending criminal charges on his
immigration status,  plea counsel advised the defendant by
letter that, if he pleaded guilty to the OUI and
OUI endangerment charges, he was not automatically
deportable, although it could make his immigration case more
difficult to win. Plea counsel also advised the defendant
that, if he pleaded guilty to the reckless endangerment
charge, "you are deportable and you cannot win your
immigration case." Plea counsel subsequently spoke with
the defendant's immigration counsel, who similarly
advised that "anything involving recklessness should be
avoided" in light of the pending removal proceedings.
plea counsel attempted to negotiate a plea. During the
hearing regarding this potential plea and with the assistance
of an interpreter, plea counsel conveyed orally the advice he
had previously given in writing regarding the immigration
consequences of a plea. Ultimately, the plea was withdrawn
after a judge indicated that she would not accept any
recommendation that did not include a period of
months later, plea counsel again attempted to negotiate a
plea. The prosecutor agreed to drop the reckless endangerment
charge, but only if the defendant agreed to committed time.
Again, through the use of an interpreter, plea counsel
conveyed orally the same advice regarding the immigration
consequences of the plea he had previously given to the
defendant first in writing and then orally at the prior plea
hearing. The defendant would not agree to any jail time and
rejected the plea deal even though it would ...