Commonwealth v. Henry

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13-P-894 Appeals Court

COMMONWEALTH vs. LISTON G. HENRY (and a companion case1).

No. 13-P-894.

Barnstable. June 3, 2015. - October 2, 2015.

Present: Kafker, C.J., Rubin, & Milkey, JJ.

Abuse Prevention. Alien. Practice, Criminal, Plea, Assistance
of counsel, Findings by judge. Constitutional Law, Plea,
Assistance of counsel. Due Process of Law, Plea,
Assistance of counsel.

Complaint received and sworn to in the Barnstable Division
of the District Court Department on July 29, 2004.

A motion to withdraw a guilty plea and for a new trial,
filed on February 28, 2013, was considered by H. Gregory
Williams, J., and a motion for reconsideration was heard by him.

Complaint received and sworn to in the Barnstable Division
of the District Court Department on March 17, 2005.

A motion to withdraw a guilty plea and for a new trial,
filed on February 28, 2013, was considered by Joan E. Lynch, J.,
and a motion for reconsideration also was considered by her.

1
The companion case involves a second complaint against the
same defendant. We note that the copy of that complaint in the
record appendix identifies the defendant by the name Henry
Liston.
2

Maurice A. Reidy, III, for the defendant.
Elizabeth Anne Sweeney, Assistant District Attorney, for
the Commonwealth.

KAFKER, C.J. 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.

1. Background. 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.
3

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.

2
Now called the Department of Children and Families.
3
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).
4

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
5

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
6

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

4
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."
7

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.
8

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.

5
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.
9

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
10

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.
11

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/wp-
content/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.

3. Conclusion. 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. See

Commonwealth v. Sylvain, 466 Mass. at 439.

So ordered.