Commonwealth v. Edson C. Lopes.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1326

COMMONWEALTH

vs.

EDSON C. LOPES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order allowing the

defendant's motion for a new trial pursuant to Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). The defendant

was indicted in 2015 on a single count of trafficking heroin in

an amount more than thirty-six grams and less than one hundred

grams, in violation of G. L. c. 94C, § 32E (c) (2). He elected

to plead guilty, and, in consideration for his plea, the

Commonwealth amended the trafficking indictment to the reduced

offense of possession with intent to distribute a class A

substance, in violation of G. L. c. 94C, § 32 (a).1 Following a

1Prior to changing his plea, the defendant did not file a
pretrial motion to suppress the evidence we discuss infra, or to
dismiss the charges.
colloquy in which the defendant affirmed, amongst other

consequences, that he understood he could face deportation as a

result of his conviction, the plea judge accepted his plea.2

More than six years later, after traveling abroad to his country

of origin, Cape Verde, and being subjected to removal

proceedings stemming from this conviction, the defendant filed a

motion for a new trial, arguing that he had received ineffective

assistance of counsel because his plea counsel did not advise

him of the specific immigration consequences that he would

suffer as a result of his plea. After a nonevidentiary hearing,

a judge of the Superior Court, who was not the plea judge,

allowed the motion. Concluding that the judge abused his

discretion by improperly considering factors that were not

present at the time of the plea and by failing to consider the

totality of the circumstances at the time of the plea, we vacate

the order granting the motion for a new trial and remand the

matter for further consideration.

Discussion. "A motion for new trial is the proper vehicle

through which to request that a guilty plea be vacated."

2 Conviction of trafficking heroin in an amount more than
thirty-six grams and less than one hundred grams carries a
mandatory minimum sentence of five years in State prison. G. L.
c. 94C, § 32E (c) (2). In exchange for his plea, the defendant
was given a sentence of two years in the house of correction,
suspended for two years during which time he was subject to
administrative probation.

2
Commonwealth v. Cano, 87 Mass. App. Ct. 238, 240 (2015). "We

review the judge's decision 'to determine whether there has been

a significant error of law or other abuse of discretion'"

(citation omitted). Id. "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made a clear error of judgment in weighing the factors relevant

to the decision, such that the decision falls outside the range

of reasonable alternatives" (quotation and citation omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "When, as

here, the motion judge did not preside [at the plea hearing]

. . ., we regard ourselves in as good a position as the motion

judge to assess the . . . record." Commonwealth v. Martinez, 86

Mass. App. Ct. 545, 549 (2014), quoting Commonwealth v.

Petetabella, 459 Mass. 177, 181 (2011).

"The policy favoring the finality of just convictions

imposes a 'rigorous standard' upon the discretionary allowance

of motions under rule 30 (b)." Commonwealth v. Almonte, 84

Mass. App. Ct. 735, 738 (2014), quoting Commonwealth v. Berrios,

447 Mass. 701, 708 (2006), cert. denied, 550 U.S. 907 (2007).

"Allowance must rest upon 'substantial reasons.'" Almonte,

supra, quoting Commonwealth v. Tucceri, 412 Mass. 401, 406

(1992). To prevail on a claim of ineffective assistance of

counsel, "the defendant bears the burden of showing that his

attorney's performance fell measurably below that which might be

3
expected from an ordinary fallible lawyer, and that he suffered

prejudice because of his attorney's unprofessional errors"

(quotation and citation omitted). Commonwealth v. Lavrinenko,

473 Mass. 42, 51 (2015). See Commonwealth v. Saferian, 366

Mass. 89, 96 (1974).

On appeal, the parties focus their arguments with respect

to ineffective assistance on the prejudice prong of the Saferian

analysis, and we will do so as well.3 "In the context of a

guilty plea, in order to satisfy the 'prejudice requirement,'

the defendant has the burden of establishing 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

3 The judge determined that plea counsel rendered
substandard performance when he failed to advise the defendant
that his conviction would result in the defendant's exclusion
from admission into the United States, and we agree. See
Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 723 (2012),
quoting Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (when
immigration consequences of plea are "truly clear," then "the
duty to give correct advice is equally clear"). We are
unconvinced by the Commonwealth's argument that the judge was
obligated to hold an evidentiary hearing before reaching this
conclusion, as we discern no meaningful inconsistency in plea
counsel's affidavit. Plea counsel's statement that "I would not
have informed [the defendant] about the specific consequences
about re-entering the U.S." cannot be said to be inconsistent
with the warning on the waiver of rights form, that a conviction
"could result in my . . . exclusion from admission to the United
States" (emphasis added). See Almonte, 84 Mass. App. Ct. at
738, quoting Commonwealth v. Shuman, 445 Mass. 268, 278 (2005)
(judge should exercise discretion to hold evidentiary hearing if
"'a substantial issue necessitating a hearing' has arisen from
the submitted affidavit material").

4
trial.'" Lavrinenko, 473 Mass. at 55, quoting Commonwealth v.

Clarke, 460 Mass. 30, 47 (2011), abrogated in part on other

grounds by Chaidez v. United States, 568 U.S. 342 (2013). To

establish that reasonable probability, "[a]t a minimum, . . .

the defendant must aver that to be the case."4 Lavrinenko,

supra, quoting Clarke, supra. Having made such an assertion,

the defendant "must [then] convince the court that a decision to

reject the plea bargain would have been rational under the

circumstances" (quotation omitted). Commonwealth v. DeJesus,

468 Mass. 174, 183 (2014), quoting Clarke, supra.

"To prove that rejecting the plea would have been rational
under the circumstances, 'the defendant bears the
substantial burden of showing that (1) he [or she] had an
"available, substantial ground of defence," . . . that
would have been pursued if he [or she] 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 (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.'" (Footnote omitted).

Lavrinenko, supra at 55-56, quoting Clarke, supra at 47-48.

In his written motion for a new trial, the defendant argued

that all three Clarke factors supported the conclusion that it

would have been rational under the circumstances to reject the

plea had he been given proper advice. However, his arguments

4 The judge properly found that the defendant satisfied this
baseline requirement by averring as much.

5
regarding the first two factors lacked substance. Regarding the

first factor, although he made a passing reference to the

possibility of a motion to suppress in his motion for a new

trial, he did not identify what the basis for such a motion

might have been. As to the second factor, he offered a

conclusory assertion that he might have been able to structure a

plea in such a way as to avoid immigration consequences but did

not reasonably explain how he might have done so.5,6 See

Commonwealth v. Rodriguez, 101 Mass. App. Ct. 54, 59 (2022)

(Clarke factor not met where defendant presented no support for

claim regarding alternative plea). Accordingly, the judge's

analysis exclusively addressed the question whether the

defendant had offered evidence of special circumstances

sufficient to support his motion. The judge determined that he

had, relying on the defendant's family and community ties to the

United States to do so.7

5 As we discuss infra, the Commonwealth's evidence against
the defendant was strong, and we are accordingly doubtful that
the defendant had much leverage during plea negotiations.

6 Arguably, the defendant's plea deal was structured in such
a way as to limit his exposure to immigration consequences, as
he was not deported following his conviction, despite having
been found guilty of "a violation of . . . [a] law . . .
relating to a controlled substance." 8 U.S.C.
§ 1227(a)(2)(B)(i) (2012).

7 We note that the defendant has not claimed that Cape Verde
is unstable, or that he otherwise faces dire circumstances in
the event that he is to be returned there or denied admission to

6
We conclude, however, that the judge erred in making this

determination for two reasons. First, he erred by improperly

considering a factor that was not present at the time of the

plea. Specifically, when describing "the depth and quality of

the roots [the defendant] has planted in this country,"

Lavrinenko, 473 Mass. at 58, the judge wrote that "[the

defendant] wants to remain here to raise his two-year-old son,

who is a citizen." The defendant's son, however, was not born

at the time of the defendant's plea in 2016 and could not have

contributed to his decision to accept or reject the plea

bargain. See Clarke, 460 Mass. at 47. At the time of the

defendant's plea, the only factors in support of his claim of

special circumstances were his status as a lawful immigrant, the

presence of his parents, grandmother, sister, and other

relatives in the United States,8,9 and his employment at an

autobody shop. Without more, however, lawful status,

the United States after having traveled there. Contrast
Lavrinenko, 473 Mass. at 59 (special circumstance were that
deportation "may be an especially severe and dangerous
consequence").

8 The defendant did not aver that any of his family members
were dependent on him at the time of his plea. See Rodriguez,
101 Mass. App. Ct. at 59-60.

9 Although the defendant has claimed that, at the time of
his plea, "all of his family members were [in the United
States]," we note that he traveled to Cape Verde to attend the
funeral of his grandfather.

7
employment, and the presence of nondependent family members are

not enough to support a finding of special circumstances.

Rodriguez, 101 Mass. App. Ct. at 59-60.

Second, the judge did not adequately weigh the strength of

the Commonwealth's case at the time of the plea. See

Commonwealth v. Lys, 481 Mass. 1, 15 (2018), quoting Lavrinenko,

473 Mass. at 59 ("[t]he prejudice determination rests on the

totality of the circumstances"). After executing a search

warrant at 6 A.M., State troopers and Brockton police detectives

discovered approximately fifty grams of heroin divided into six

packages in the defendant's vehicle. They further discovered a

receipt for the vehicle in the defendant's apartment and had

seen him driving it previously. The Commonwealth stated during

the defendant's plea colloquy that five of those packages of

heroin were consistent with distribution. Given the large

quantity of heroin recovered, the Commonwealth was prepared to

present a compelling case that the defendant had engaged in

narcotics trafficking, against which the defendant could offer

little in the way of defense.10 See Lavrinenko, 473 Mass. at 59

10We are unconvinced by the defendant's argument that he
would have placed "particular emphasis on immigration
consequences in deciding whether to plead guilty." Lys, 481
Mass. at 9-10, quoting Clarke, 460 Mass. at 47-48.
Specifically, the defendant contends that, had he been properly
advised, he would have gone to trial on the remote chance that
he would be found not guilty, and, accordingly, avoid
deportation. Given the considerable evidence marshalled by the

8
n.20 (judge may consider defendant's assessment of prosecution's

case in relation to defendant's own case). Contrast Martinez,

86 Mass. App. Ct. at 553 (defendant's minor role in low-value

drug transaction supported finding of prejudice). Although the

judge offered a passing reference to the favorable plea deal

obtained by the defendant, he was obligated to consider the

totality of the circumstances at the time of the plea in

assessing the prejudice prong and abused his discretion by

failing to appropriately consider the strength of the

Commonwealth's case, as well as by considering facts that were

nonexistent at that time. See Lavrinenko, 473 Mass. at 59.

For the forgoing reasons, the order dated June 28, 2023,

granting the defendant's motion for a new trial, is vacated. We

remand the matter to the Superior Court for further

consideration consistent with this memorandum and order. We

Commonwealth, however, we cannot say that it would have been
rational to proceed to trial given the generous plea deal
available to the defendant. See Lavrinenko, 473 Mass. at 59
n.20.

9
leave the question whether to hold an evidentiary hearing to the

sound discretion of the motion judge.

So ordered.

By the Court (Green, C.J.11,
Desmond & Hershfang, JJ.12),

Clerk

Entered: September 12, 2024.

11 Chief Justice Green participated in the deliberation on
this case prior to his retirement.

12 The panelists are listed in order of seniority.

10