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Commonwealth v. Lopez

Appeals Court of Massachusetts, Essex

September 9, 2019

COMMONWEALTH
v.
JUAN LOPEZ.

          Heard: April 10, 2019.

         Complaints received and sworn to in the Lynn Division of the District Court Department on April 6 and 16, 2015.

         A motion for a new trial, filed on February 7, 2017, was heard by Ellen Flatley, J.

          Emily R. Mello, Assistant District Attorney, for the Commonwealth.

          C. Alex Hahn for the defendant.

          WENDLANDT, J.

         The 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 [2010]) 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.

         Background.

         In 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.

         While 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, [1] 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.

         During the course of representing the defendant, plea counsel learned that he was in the United States without authorization. With the assistance of an interpreter, [2] 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.

         After 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, [3] plea counsel advised the defendant by letter[4] 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.

         Thereafter, 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 incarceration.

         Several 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 ...


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