Date: 10-03-2015

Case Style: Commonwealth v. Henry

Case Number: 13-P-894

Judge: Honorable Scott L. Kafker

Court: Massachusetts Appeals Court

Plaintiff's Attorney: Elizabeth Anne Sweeney

Defendant's Attorney: Maurice A. Reidy, III

Description: According to the application for the first
complaint, on July 29, 2004, Yarmouth police officer Sean Brewer
was dispatched to the home of Robin Edwards. Edwards reported
that she had an active restraining order against the defendant,
who is her former boy friend and the father of her son. The
restraining order in question, which included a no-contact
provision, had been issued from the Probate and Family Court and
served in-hand on the defendant the previous day, July 28, 2004.
Edwards informed Officer Brewer that at 9:42 that morning (July
29) she received a telephone call. She stated that when she
answered the call, the defendant was on the telephone and yelled
at her for taking away his visitation rights with their son,
stated that he was going to contact DSS2 to have them take their
son away from her, and concluded that if DSS did not do so then
he would, and then "she would get what was coming to her." At
that point, Edwards hung up the telephone.
As a result of this incident, a complaint issued from the
District Court later that day, charging the defendant with one
count of violating an abuse prevention order, in violation of
G. L. c. 209A, § 7. Several days later the defendant was
arraigned and entered a plea of not guilty. Counsel Phillip
Deyoung was appointed on August 30, 2004, and after two
continuances, the defendant admitted to sufficient facts on
October 27, 2004.3 The defendant received a continuation without
a finding and was put on administrative probation. The docket
reflects that during the plea colloquy the judge administered
the alien warnings required by G. L. c. 278, § 29D.
Now called the Department of Children and Families.
In evaluating immigration consequences, "it remains appropriate to treat an admission to sufficient facts as the equivalent of a plea of guilty," and we do so here. Commonwealth v. Grannum, 457 Mass. 128, 130 n.4 (2010) (citation omitted).
According to the application for the second complaint
against the defendant, approximately five months later, on March
12, 2005, at 10:50 P.M., Edwards heard knocking at the rear door
of her residence. She opened the door and the defendant entered
the house in violation of another abuse prevention order, which
required the defendant to leave and stay away from the premises.
Upon entry, the defendant first stated that he had to use the
bathroom. He then went on to tell Edwards that they would start
dating again, he would get her a ring, and they would get
married. Edwards asked him to leave and said that her boy
friend was upstairs. The defendant told her he would not exit
the house until she made the boy friend leave. Edwards
attempted to call the police, but the defendant grabbed the
telephone and pulled the telephone cord from the wall. Edwards
went to the upstairs bedroom and used her cellular telephone
(cell phone) to call the police. After placing the call,
Edwards went downstairs with her cell phone, which the defendant
attempted to wrestle away from her. She received two scratches
to her right forearm during the struggle.
On March 17, 2005, the District Court issued the second
complaint against the defendant, charging him with one count of
violating an abuse prevention order, in violation of G. L.
c. 209A, § 7, and one count of intimidating a witness, in
violation of G. L. c. 268, § 13B. On April 27, 2005, the
defendant was arraigned, counsel Thomas Rugo was appointed, and
the defendant entered pleas of not guilty. Four continuances
later, the defendant changed his pleas to guilty on August 31,
2005, in a plea proceeding before a second judge, who imposed
probationary sentences. Again, the required statutory alien
warnings were provided to the defendant during the plea
colloquy.
The defendant is a Jamaican citizen and at the times of
both plea proceedings was a lawful permanent resident of the
United States. As a consequence of his guilty pleas and
convictions, on June 10, 2010, the defendant received a notice
to appear in removal proceedings before a United States
immigration judge, and was placed in custody on December 4,
2010. The defendant appeared at four master's hearings; three
continuances were granted, but on March 1, 2013, he was ordered
removed to Jamaica. After appealing the order to the Board of
Immigration Appeals and to the United States Court of Appeals
for the First Circuit, the defendant was removed on December 19,
2013. The defendant's family members -- including his three
children, ages thirty-one, twenty-seven, and ten, and their
mothers -- all live in and are citizens of the United States.
Prior to his removal, on February 28, 2013, the defendant
filed motions to withdraw his 2004 and 2005 pleas. The motions,
identical in each case, were supported by affidavits of the
defendant and Edwards. The defendant's affidavit averred that
Edwards had falsified her allegations amid crack cocaine
addiction and conflict over their child, that neither of the
defendant's plea attorneys asked him if he was a United States
citizen or told him he could face deportation for admitting to
the charges,4 and that had he been so advised he instead would
have insisted on going to trial. In Edwards's affidavit, she
recanted her accusations against the defendant. Edwards stated
that she suffers from posttraumatic stress disorder due to abuse
from her former husband, and that during the time period in
question she was addicted to cocaine. She indicated that she
has been sober since June 14, 2010, and wishes to make amends
for her false accusations against the defendant, which she
fabricated both to prevent the defendant from interfering with
her drug use and to retaliate against him for seeing another
woman.
Originally the defendant's motions were denied in March of
2013 without a hearing, on the basis that Padilla v. Kentucky,
559 U.S. 356, 366, 373-374 (2010), does not apply retroactively
to cases on collateral review in Federal court. See Chaidez v.
United States, 133 S. Ct. 1103, 1105, 1111 (2013). (The
The defendant stated, "Both lawyers just said if you plead guilty you can get out of jail today, and get right back to work, and everything will be fine."
original rulings were in error, as Padilla does apply
retroactively under Massachusetts law. See Commonwealth v.
Clarke, 460 Mass. 30, 45 [2011]; Commonwealth v. Sylvain, 466
Mass. 422, 423-424 [2013].) After the defendant's motion to
reconsider was denied, the defendant filed a notice of appeal
for both the 2004 and 2005 matters on April 29, 2013. We then
granted the defendant's motion to stay the appeal on November
25, 2013, to allow him to present in the trial court a renewed
motion to reconsider his motions to withdraw his pleas. The
renewed motion, filed on February 14, 2014, was supported by
additional affidavits, of both plea counsel. According to
attorney Deyoung's affidavit, Deyoung's case file for the
defendant has been destroyed and Deyoung has no memory of his
representation of the defendant regarding the 2004 charge.
Similarly, attorney Rugo's affidavit stated that his case file
for the defendant has been discarded, and that he has no
recollection of any details pertaining to his representation of
the defendant on the 2005 charges.
On February 24, 2014, the plea judge on the 2005 case
engaged in reconsideration and, reviewing the entire case file
but without holding an evidentiary hearing, again denied the
motion to withdraw the plea. She ruled as follows:
"In the context of a guilty plea, the defendant bears the burden of proving that he had an 'available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass.
89[, 96] (1974). In the instant case, the Commonwealth presented a compelling case in which the defendant entered the victim's home in violation of a restraining order, wrestled one phone away from her when she attempted to call police and followed her upstairs when she tried to use a second cell phone. Police responded to the home shortly after the event. The Court finds that the affidavits signed by the victim, eight years after the event, and the defendant, only after he became the subject of deportation proceedings, lack credibility."
As to the 2004 case, the judge who had taken the plea also
undertook reconsideration, and ordered that an evidentiary
hearing be scheduled. During this hearing, Deyoung testified
that although he had no recollection of his representation of
the defendant, his standard practice was that, as the judge
found, "whenever he suspected any potential immigration
consequences . . . might befall a defendant, he would recommend
that that client communicate with an immigration attorney."5 On
June 23, 2014, the judge denied the motion to withdraw the plea
as to the 2004 case. He contrasted the immigration effects of
violations of G. L. c. 209A abuse prevention orders with those
of drug offenses, stating,
"'[T]here undoubtedly will be situations in which the deportation [or other immigration] consequences of a particular plea are unclear or uncertain, and counsel's duty more limited' [than in a drug case where the consequences are clear and certain]. [Commonwealth v.] DeJesus, [468 Mass. 174,] 180 [2014]. This is such a case.
Deyoung also testified that it was his practice to read and review the "green sheet" (the tender of plea and waiver of rights form) with the client, including the alien rights warning it contained.
It is difficult to determine that counsel should have done more in 2004 than he did, and therefore difficult to find that counsel's behavior fell 'measurably below that which might be expected from an ordinary fallible lawyer.' [Commonwealth v.] Clarke, [460 Mass.] at 45." Regarding the prejudice prong of the Saferian standard, the
judge stated, "[c]oncluding that any of [the possible means of
establishing prejudice described in Commonwealth v. DeJesus,
supra at 183], were it necessary to reach them, had been
demonstrated would have been a stretch for this Court."
Subsequently we vacated our previous stay, and we now
consider the defendant's consolidated appeals from these final
orders denying his motions to withdraw his pleas.
2. Discussion. A motion to withdraw a guilty plea is
treated as a motion for a new trial. Commonwealth v. DeJesus,
468 Mass. at 178. In accordance with Mass.R.Crim.P. 30(b), as
appearing in 435 Mass. 1501 (2001), a motion judge "may grant a
new trial at any time if it appears that justice may not have
been done." "A motion for a new trial is thus committed to the
sound discretion of the judge." Commonwealth v. Scott, 467
Mass. 336, 344 (2014). While the defendant bears the burden of
proof on a motion for a new trial, and the motion judge is
entitled to discredit affidavits, Commonwealth v. Marinho, 464
Mass. 115, 123 (2013), the motion judge must make "such findings
of fact as are necessary to resolve the defendant's allegations
of error of law." Mass.R.Crim.P. 30(b). See Commonwealth v.
Grace, 397 Mass. 303, 305 (1986); Commonwealth v. Scott, supra.
The defendant argues that his pleas to the 2004 and 2005
charges should be vacated and he should be granted new trials
because (1) he was denied effective assistance of counsel due to
the failures of both plea counsel to fully inform him of the
immigration consequences of his pleas, (2) his pleas were not
knowing and voluntary due to the faulty advice of counsel, and
(3) justice was not done as demonstrated by the victim's
recantation of her allegations. For the reasons that follow, we
conclude that in order to decide the defendant's rule 30(b)
motions, the judges were required to make additional findings of
fact that were both necessary to resolve the legal issues raised
therein and not addressed in the judges' previous fact-finding.
A. Ineffective assistance claims. "Before deciding
whether to plead guilty, a defendant is entitled to 'the
effective assistance of competent counsel.'" Padilla v.
Kentucky, 559 U.S. at 364 (citation omitted). In order to
prevail on his claim of ineffective assistance of counsel, the
defendant bears the substantial burden of demonstrating both
that (1) the conduct of his counsel fell "measurably below that
which might be expected from an ordinary fallible lawyer," and
(2) this conduct "likely deprived the defendant of an otherwise
available, substantial ground of defence." Commonwealth v.
Saferian, 366 Mass. at 96. We conclude that a remand is
required here on both motions as the fact-finding and legal
analysis are incomplete in both decisions, on each prong of the
ineffective assistance of counsel test. See Commonwealth v.
Sylvain, 466 Mass. at 439 (remand on prejudice prong).
i. Performance prong. The defendant asserts that counsel
for both his 2004 and 2005 guilty pleas never asked whether he
was a United States citizen or informed him that pleading to the
G. L. c. 209A offenses would subject him to mandatory
deportation. In determining whether the defendant met his
burden under the performance prong of the Saferian standard, we
must first address what level of advice plea counsel were
constitutionally required to provide the defendant given the
charges against him.
In Padilla v. Kentucky, the United States Supreme Court
established that defense counsel must apprise a client of the
immigration consequences of a plea when such consequences can be
"easily determined" via reference to "succinct, clear, and
explicit" statutory language. 559 U.S. at 368. Here, at the
time of the plea proceedings, 8 U.S.C. § 1227(a)(2) (2000)
listed the criminal offenses constituting applicable grounds for
deportation of aliens such as the defendant. Included in this
list at that time (and since unchanged) were "crime[s] of
domestic violence" and certain violations of "protection

12
orders." 8 U.S.C. § 1227(a)(2)(E)(i), (ii).6 Specifically as to
the latter, "[a]ny alien who at any time after admission is
enjoined under a protection order issued by a court and whom the
court determines has engaged in conduct that violates the
portion of a protection order that involves protection against
credible threats of violence, repeated harassment, or bodily
injury to the person or persons for whom the protection order
was issued is deportable."7 8 U.S.C. § 1227(a)(2)(E)(ii). Such
a conviction makes the chance of deportation almost certain, as
recently reiterated by the Supreme Judicial Court: "After the
1996 effective date of amendments to the 1952 Immigration and
Nationality Act, . . . 'if a noncitizen has committed a
removable offense . . . , his removal is practically
inevitable,' subject to limited exceptions." Commonwealth v.
DeJesus, 468 Mass. at 180, quoting from Padilla v. Kentucky, 559
U.S. at 363-364.
6 Importantly for the practicing bar, we note that as of this writing there has been no change to the operative language of 8 U.S.C. § 1227(a)(2)(E), a provision which was added to the statute by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
7 The statute continues, "For purposes of this clause, the term 'protection order' means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding." 8 U.S.C. § 1227(a)(2)(E)(ii).

13
Each of the defendant's attorneys "could have easily
determined that his plea would make him eligible for deportation
simply from reading the text of the statute, which addresses not
some broad classification of crimes but specifically commands
removal" for these violations of the protection orders. Padilla
v. Kentucky, supra at 368. As such, "[c]ounsel therefore was
obligated to provide to his client, in language that the client
could comprehend, the information that presumptively mandatory
deportation would have been the legal consequence of pleading
guilty. Stated differently, counsel needed to convey that, if
Federal authorities apprehended the defendant, deportation would
be practically inevitable." Commonwealth v. DeJesus, 468 Mass.
at 181.8
Concluding that the law regarding the immigration
consequences of the defendant's pleas was "succinct and
straightforward," Padilla v. Kentucky, 559 U.S. at 369,9 we turn
8 While, in total, the defendant here pleaded guilty to two counts of violation of an abuse prevention order and one count of intimidation of a witness, the parties' arguments on appeal focus on the abuse prevention order charges. We likewise have largely focused our analysis on these two charges. However, our vacatur of the orders on appeal necessarily includes the plea to witness intimidation, as it is inextricably entwined with the simultaneous plea to one of the abuse prevention order violations.
9 This conclusion is supported by prevailing professional norms. See Committee for Public Counsel Services Immigration Impact Unit, Immigration Consequences of Massachusetts Criminal Convictions 19 (July 2015) ("[Title] 8 U.S.C. § 1227(a)(2)(E)

14
next to whether the defendant adequately demonstrated that
neither of his defense counsel informed him that his pleas
subjected him to mandatory deportation. To support his claim,
the defendant provided affidavits from both attorneys, who
stated that they have no recollection regarding the defendant's
cases. Attorney Deyoung did state, both in his affidavit and
when testifying at the evidentiary hearing on the defendant's
motion, that his customary practice is to read with his clients
the waiver of rights language on the tender of plea and waiver
of rights form. This, however, would not have satisfied
counsel's affirmative duty to inform the defendant that
"deportation would be practically inevitable." Commonwealth v.
DeJesus, supra. See Commonwealth v. Clarke, 460 Mass. at 33, 48
n.20 ("[T]he receipt of such [alien] warnings is not an adequate
substitute for defense counsel's professional obligation to
advise her client of the likelihood of specific and dire
immigration consequences that might arise from such a plea").
Deyoung also stated that his standard practice was to advise
clients that pleas may have immigration consequences and that
they should consult an immigration attorney. This was likewise
provides for the deportation of noncitizens who are convicted of crimes of domestic violence . . . or certain violations of protective orders"), available at https://www.publiccounsel.net/iiu/wpcontent/uploads/sites/15/2014/07/IIU-Guide-2015.pdf [http://perma.cc/Y3ML-7PWA] (last visited Sept. 29, 2015).

15
insufficient where deportation is presumptively mandatory. See
Commonwealth v. Balthazar, 86 Mass. App. Ct. 438, 440-443
(2014).
The judge handling the plea withdrawal motion on the 2004
conviction was under the mistaken impression that the
immigration consequences for the violation of the abuse
prevention order were uncertain and there was no need to advise
the defendant that the violation of the G. L. c. 209A abuse
prevention order was a deportable offense pursuant to the
applicable Federal statute. As a result, his factual findings
did not address the issue whether the defendant was properly
informed that the violation of G. L. c. 209A, § 7, was a
deportable offense, and thus, if removal proceedings were
commenced, his deportation would be practically inevitable.
Such fact-finding is necessary to resolve the performance prong
of the Saferian analysis.
As for the motion to withdraw the 2005 plea, the judge
bypassed the performance prong of the Saferian analysis
entirely. Instead she moved directly into an inquiry whether
the defendant had a substantial ground of defense, which the
judge concluded he did not, finding the defendant's and the
victim's affidavits incredible. We also do not interpret her
general finding that the defendant and victim were incredible to
address the issue whether the defendant was informed by defense

16
counsel that the violation of the abuse prevention order was a
deportable offense, and that deportation was thus practically
certain. The judge should make such findings expressly on
remand.
ii. Prejudice prong. "A showing that plea counsel's
advice was constitutionally deficient does not alone entitle the
defendant to relief, however; the defendant must also
demonstrate prejudice." Commonwealth v. Cano, 87 Mass. App. Ct.
238, 246 (2015). In the plea context, this requires the
defendant to establish that "there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty
and would have insisted on going to trial." Commonwealth v.
Clarke, 460 Mass. at 47, quoting from Hill v. Lockhart, 474 U.S.
52, 59 (1985). While the defendant has provided an affidavit to
that effect, contrast Commonwealth v. Clarke, supra at 49, he
must also "convince the court that a decision to reject the plea
bargain would have been rational under the circumstances." Id.
at 47 (citation omitted). The defendant has three avenues for
satisfying this requirement: he must demonstrate that "(1) he
had an 'available, substantial ground of defence,' Commonwealth
v. Saferian, [366 Mass.] at 96, that would have been pursued if
he had been correctly advised of the dire immigration
consequences attendant to accepting the plea bargain; (2) there
is a reasonable probability that a different plea bargain

17
(absent such consequences) could have been negotiated at the
time; or (3) the presence of 'special circumstances' that
support the conclusion that he placed, or would have placed,
particular emphasis on immigration consequences in deciding
whether to plead guilty. Hill [v. Lockhart], supra at 60."
Commonwealth v. Clarke, 460 Mass. at 47-48 (footnote omitted).
To bolster his argument, the defendant asserts that (1) the
evidence marshalled by the Commonwealth to substantiate the
charges against him was not particularly strong, and (2) the
defendant's family and history in the United States qualify as
special circumstances that would have weighed heavily in the
defendant's decision to go to trial if he had been adequately
informed of the immigration ramifications of his pleas.10
Although the affidavits focused on the first rather than the
second argument, and both judges were disadvantaged by poor
development of the record on whether special circumstances were
presented here, we conclude that a remand is nonetheless
appropriate, especially given the emphasis by the Supreme
Judicial Court on family circumstances in Commonwealth v.
DeJesus, 468 Mass. at 184.
10 During the evidentiary hearing on the motion to withdraw the 2004 plea, the defendant's counsel argued that "[the defendant] has two [sic] children. He has grandchildren in the United States. And unless they have the money to fly to Jamaica, they are never going to see their father ever again. He can't come back. I mean -- and they're probably never going to see him."

18
The judge hearing the defendant's plea withdrawal motion in
the 2004 case stated without further elaboration that it "would
have been a stretch" to conclude that the defendant had met his
burden to demonstrate prejudice. We conclude that more specific
and definitive findings are required here, especially given that
the defendant's children and grandchildren live in the United
States. See Commonwealth v. Sylvain, 466 Mass. at 439.
Depending on the defendant's relationships with those children
and grandchildren, which is not developed in the record, there
may have been special circumstances present that would have
justified going to trial. See Commonwealth v. DeJesus, 468
Mass. at 184 ("defendant 'had a lot to lose if he were to be
deported' because he had been in the country since he was eleven
years old, his family was in Boston, and he had maintained
steady employment in the Boston area"). See also Padilla v.
Kentucky, 559 U.S. at 368 (for deportable defendant, "right to
remain in the United States may be more important to [him] than
any potential jail sentence" [citation omitted]). Contrast
Commonwealth v. Clarke, 460 Mass. at 48 (defendant primarily
concerned with pleading to secure dismissal of more serious
charges, regardless of immigration consequences; there was
substantial evidence stacked against the defendant, which would
not have made a lesser plea possible).

19
Similar factual development is required for the plea
withdrawal motion in the 2005 case. Although the judge stated
that the Commonwealth's evidence "presented a compelling case"
in support of the defendant's convictions, and that neither the
defendant's nor the victim's affidavit was credible, the judge
did not address the nature and extent of the defendant's family
ties in the United States and thus whether there were special
circumstances that would have justified going to trial despite
the strong case the judge found against him. See Commonwealth
v. DeJesus, supra; Padilla v. Kentucky, supra.
In evaluating whether a defendant has demonstrated
prejudice in support of his claim of ineffective assistance,
"[e]ach case will, of course, stand on its own facts."
Commonwealth v. Clarke, 460 Mass. at 48 n.19. But without
findings of fact that address the defendant's specific
contentions, particularly regarding special family
circumstances, "it is not possible for us to say with any
certainty whether the defendant's affidavit is merely self
serving or whether he was sufficiently prejudiced to justify
vacating his guilty plea and ordering a new trial."
Commonwealth v. Sylvain, 466 Mass. at 439, citing Commonwealth
v. Saferian, 366 Mass. at 96 ("[W]hatever the attempted
formulation of a standard in general terms, what is required in
the actual process of decision of claims of ineffective

20
assistance of counsel . . . is a discerning examination and
appraisal of the specific circumstances of the given case").
Therefore, we remand these matters to the District Court to
provide further findings relating to both prongs of the Saferian
standard for both motions.
B. Defendant's other claims. The defendant makes two
additional claims on appeal: first, that his pleas were not
knowingly and voluntarily made, and second, that new trials
should be granted in the interest of justice. However, the
prospects for these claims largely rise and fall on the facts of
the ineffective assistance claims. As such, they cannot be
addressed until there are further findings of fact from the
motion judges.

Outcome: For the reasons articulated above, we vacate the orders denying the defendant's motions to vacate his guilty pleas and remand the defendant's cases to the District court with instructions to make further findings relating to the issues of performance by counsel and any prejudice arising
therefrom, and, if necessary, to hold additional evidentiary
hearings on the defendant's motions for such purposes

Plaintiff's Experts:

Defendant's Experts:

Comments: The defendant, Liston G. Henry, appeals from the denials of his motions to withdraw his 2004 and 2005 guilty pleas to two violations of G. L. c. 209A abuse prevention orders and one count of witness intimidation. He claims to have received ineffective assistance of counsel regarding the immigration effects of pleading guilty to the charges, as he was not informed that the abuse prevention order violations were deportable offenses and because the defendant, then a lawful permanent resident of the United States, was consequently deported to Jamaica in 2013 and thereby separated from his extended family in the United States. We vacate the orders denying the defendant's motions to withdraw his pleas and remand for further factual findings on both motions.