Commonwealth v. Sylvain (Lawyers Weekly No. 10-036-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11896 COMMONWEALTH vs. KEMPESS SYLVAIN. Suffolk. November 5, 2015. – March 14, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Alien. Practice, Criminal, Plea, Judicial discretion, Affidavit. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on April 17, 2007. Following review by this court, 466 Mass. 422 (2013), further proceedings on a motion to vacate, filed on January 12, 2012, were had before James W. Coffey, J. The Supreme Judicial Court granted an application for direct appellate review. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Laura Mannion Banwarth (Wendy S. Wayne, Committee for Public Counsel Services, with her) for the defendant. DUFFLY, J. Relying on advice from his attorney that a plea agreement would not result in his deportation, the defendant, who is not a citizen of the United States, pleaded guilty to one count of possession of cocaine.[1] The attorney’s advice was incorrect, and Federal authorities eventually placed the defendant in a removal proceeding. The defendant moved to vacate his guilty plea pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), claiming ineffective assistance of counsel. That motion was denied, and we granted the defendant’s motion for direct appellate review. We concluded in Commonwealth v. Sylvain, 466 Mass. 422, 423-425 (2013) (Sylvain I), that the defendant received ineffective assistance from his plea counsel when counsel provided erroneous advice that the defendant would not be subject to deportation if he received a suspended sentence of less than one year in connection with a guilty plea to possession of cocaine. In our decision in Sylvain I, we noted that “[a]lthough the defendant’s affidavit [in support of the motion to vacate was] highly suggestive that he would have elected to go to trial but for his attorney’s erroneous advice,” we could not make such a determination in the absence of additional findings and credibility determinations. Id. at 439. We therefore remanded the matter to the Boston Municipal Court “with instructions to provide findings relating to the issue of prejudice and, if necessary, to hold an additional evidentiary hearing.” Id. On remand, the matter went before the judge who had accepted the defendant’s guilty plea, and who earlier had denied his motion to vacate that plea. […]